Tuesday, 31 August 2021
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021; Second Reading
[by video link] I rise to speak on the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021—a bill this government has had to be dragged to finally bring to the table, though it still leaves much to be desired. Today we are marking Equal Pay Day and shamefully, staring at a gender pay gap of 14.2 per cent. It is pertinent to be debating this bill on sex discrimination and fair work today because the same structures of power, privilege and patriarchy that prevent us from reaching pay equality are the ones that allow sexism, sexual harassment and bullying to continue in workplaces and in society at large. It is way beyond time that we take strong action to dismantle these systems and hold those who perpetuate these injustices to account.
Women around the country have spoken their truth about the harassment, bullying and abuse they have been subjected to and have made it clear in no uncertain terms that they will not rest until this stops. The reality is that no workplace is safe from sexual harassment. You would be hard-pressed to find a woman who has not endured an unwanted sexual advance, be it verbal or physical, subtle or blatant. Young or old, white, brown or black, executive, teacher, student, political staffer, journalist or waitress, famous or completely anonymous, as women, no matter who we are, we are targets.
It is important, though, to recognise and highlight the ways in which different women face discrimination. Women at the intersections of racism and sexism face multiple and layered added challenges. The advocacy group Women of Colour Australia, in partnership with Murdoch University, recently released a survey that revealed that almost 60 per cent of women who responded to their survey had experienced discrimination in the workplace. What's more, most respondents, about 57 per cent, felt they had faced challenges in the workplace related to their identity as a woman of colour. It is this layered oppression that is absent from our mainstream discourse on the issues faced by women.
The Young Women's Advisory Groups of Equality Rights Alliance and Harmony Alliance—Migrant & Refugee Women for Change pointed out in their submission to the Respect@Work inquiry:
Temporary migrant workers face significant barriers in pursuing complaints about exploitative treatment at work which emanate from strong power differentials between an employer and visa holder.
It is clear that women on the margins experience their workplaces and society in general very differently from others. While we talk about gender inequality and discrimination at work, we must work to address the distinct challenges faced by women of colour, migrant women, First Nations women and other marginalised women's groups.
At the end of the day, every workplace and every person within that workplace must take up the responsibility of preventing the scourge sexual harassment. This workplace right here, the Parliament of Australia, my workplace, must show leadership and ownership of becoming a safe, equal, inclusive, supportive and just workplace, so we can set the example for other workplaces to follow. This requires transparency and accountability as well. But we are so far from it. The culture of this place leaves so much to be desired.
I really hope that every single member of this place, and especially Mr Morrison's cabinet, has read the comprehensive Respect@Work report by Sex Discrimination Commissioner Kate Jenkins. This report, which makes for sobering reading, found that the rate of change in Australia on sexual harassment and discrimination at work has been disappointingly low. Australia lags behind other countries in preventing and responding to sexual harassment. It found our current laws not just lagging but also confusing and insufficient. We can and we must do better.
The bill in front of us implements some recommendations from the Respect@Work inquiry, but not all. The Morrison government received Commissioner Jenkins' report on sexual harassment in the workplace in Australia in March 2020. So it is thoroughly disappointing to see that nearly 18 months later its legislative response misses the opportunity to implement the recommendations in full.
Indeed, it ignores one of the core recommendations, to put the onus on employers to maintain a safe workplace rather than on vulnerable workers and victims to take action against harassers. The Respect@Work report set out a comprehensive, practical and targeted suite of reforms that were developed after many interviews and consultations with stakeholders. The report presented a holistic plan to address discrimination and structural inequalities to relieve the burden on victims and to make workplaces safer.
The report recommends enacting a positive duty on employers to prevent sexual harassment, sex discrimination and victimisation, with accompanying enforcement powers. This recommendation has been dismissed by the government. The Respect@Work inquiry found the current system places a heavy burden on individuals to make a formal complaint, yet the government continues to doggedly and misleadingly claim that the positive duty in the Sexual Discrimination Act is not necessary as work health and safety laws include a duty to ensure workplaces are safe. Well, isn't it clear to us that the positive duty in work health and safety laws has completely failed to protect women from sexual harassment and discrimination at work? If it were protecting people, we wouldn't see nearly 40 per cent of women experiencing sexual harassment at work. The government's dismissal reinforces the victim-must-complain approach, which unfairly puts the onus on victims and is clearly not working, given the prevalence of sexual harassment in our workplaces.
We know that eliminating workplace sexual harassment will take a big cultural shift away from sexism and patriarchy. The positive duty on the employer to create and maintain a safe workforce would be a step towards achieving this cultural shift and would work as a signal to workers that their employers are invested in creating a safer workplace for all. The report very clearly endorsed that the legal and regulatory framework should encourage and support employers to take proactive and preventative measures to address sexual harassment rather than rely on individual complaints.
The vast majority of submissions to the Senate inquiry on the bill emphasised the positive duty recommendation as absolutely critical to achieving the objectives of the Respect@Work report. The government's refusal to enact a positive duty requirement on employers is in direct contrast to evidence provided by legal experts, unions and practitioners. Among them were the Law Council of Australia, the Australian Discrimination Law Experts Group, the Women's Legal Centre ACT, the Australian Council of Trade Unions and the Community and Public Sector Union, to name just a few. The ACTU said in their submission:
We strongly support this key recommendation. The Bill should be amended as recommended by Respect@Work to include a new positive duty on employers. Unlawful discrimination provisions only arise once a complaint has been made, which places too much burden on individual complainants. A new positive duty would complement (not duplicate) existing duties under WHS laws.
The Human Rights Commission reiterated its recommendation that the bill include a positive duty on all employers, and said:
This would be a powerful tool to promote broad systemic and cultural change that sits outside of the current adversarial framework of discrimination law.
Ms Tania Constable, the chief executive officer of the Minerals Council of Australia, told the Senate inquiry:
... the positive duty that already exists works for traditional physical health and safety risks; it is clearly not working for sexual harassment. Therefore, given the significant issue, we support there being a positive duty in the Sex Discrimination Act.
I hope the Senate can support the Greens' amendment to include the recommendation of the positive duty on employers.
I understand the bill in front of us extends the application of the act to state employees, which is an issue that is particularly close to my heart. In August 2016, during my time in New South Wales state parliament, a woman rang my office and reported that she had been fired after telling her boss she was pregnant. When she lodged a complaint she was told it was perfectly legal to dismiss her. I could not believe this was possible in the 21st century in New South Wales, but it was. Two subsections in the New South Wales Anti-Discrimination Act 1977 allowed employers to dismiss or not hire an employee who knew they were pregnant at the time of the job interview or at the time of hiring. So I got to work. We gave notice of a bill to make this change, ran a campaign and lobbied the government.
Six months later, the New South Wales government made the change to remove this exemption. Although we were able to remove pregnancy discrimination from the New South Wales Anti-Discrimination Act, there still exists a double standard for state employees, who are exempted from Commonwealth anti-discrimination laws. I'm glad to see this bill will finally remove this double standard. This is a step forward.
While the bill amends the objectives of the Sex Discrimination Act 1984 to include 'to achieve, so far as practicable, equality of opportunity between men and women', I have to say that the words 'so far as practicable' really irk me. This is a step down from the recommendation of the inquiry, which suggested that the objective be 'to achieve substantive equality between men and women'. 'So far as practicable' is not going to take us very far at all, especially not under a Liberal-National government which has already dragged its heels on this important reform. This narrow-minded interpretation of the report falls short of community expectations and well short of the legal changes that we need to address the widespread issue of workplace harassment.
Women have fought and won so many battles along the way to gender equity, but there are many more to win. Gaining the right to run for parliament has not yet led to equal representation. Women have joined the workforce in droves. We work hard and we pursue every career under the sun. Still, we are undervalued, underpaid and discriminated against. Gendered violence kills one woman a week. The feminisation of poverty means we earn less and our jobs are more insecure and casualised. It's undeniable that the impacts of COVID-19 are exacerbated for women in every sphere of economy and society. Australia's ranking in the global gender gap index has been steadily dropping for more than a decade. These are huge disparities that become even worse for First Nations women, migrant women, refugee women, women of colour, trans women and disabled women, as they fall through the cracks in the reporting of these statistics and in the enactment of change, however incremental.
Today, as we talk about Respect@Work, let's acknowledge that the goal of gender parity will not be achieved unless we dismantle the structures of power, privilege and patriarchy. The economic, social and political oppression of women continues because patriarchy is allowed to flourish. Feminism is the antidote to patriarchy. I am proud to be feminist AF. Let's make sure that our feminism is powerful, that it is collective and that it is for all and with all women. The message that women across Australia have given us is clear. They demand an end to sexism, harassment, discrimination, rape culture and the mistreatment of women, in parliament, in workplaces and in the community. We must hear this message and act on it. It's our job.