Jenny McAllister (NSW, Australian Labor Party, Shadow Cabinet Secretary) Share this | Hansard source

by leave—I move opposition amendments on sheets 1381, 1385 and 1399 together:

[Sheet 1381]

(1) Schedule 1, item 6, page 3 (before line 25), before the definition of miscarriage, insert:

harass on the ground of sex has the meaning given by section 28AA of the Sex Discrimination Act 1984.

Note: Other parts of speech and grammatical forms of "harass on the ground of sex" (for example, "harassment on the ground of sex") have a corresponding meaning (see section 18A of the Acts Interpretation Act 1901).

(2) Schedule 1, page 4 (before line 7), before item 7, insert:

6B Section 12 (before paragraph (a) of the definition of worker )

Insert:

(ab) in Part 3-1A—see subsection 378B(1); and

(3) Schedule 1, page 4 (before line 22), before item 10, insert:

9D After Part 3-1 of Chapter 3

Insert:

Part 3-1A — Sexual harassment and harassment on the ground of sex

Division 1 — Introduction

378A Guide to this Part

This Part allows for the granting of remedies to workers that have been sexually harassed or harassed on the ground of sex in any circumstances connected with being a worker.

378B Interpretation

Definitions

(1) For the purposes of this Part:

person conducting a business or undertaking has the same meaning as in the Work Health and Safety Act 2011.

worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.

Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

Former and prospective workers

(2) A reference in this Part to a worker includes a reference to:

(a) a person who is no longer a worker; and

(b) a person who may become a worker.

378C Object of this Part

The object of this Part is to establish quick, flexible and informal procedures for providing effective remedies for workers that have been sexually harassed or harassed on the ground of sex in any circumstances connected with being a worker.

Division 2 — Remedies for workers that have been sexually harassed or harassed on the ground of sex

378D Power for FWC to deal with a dispute about sexual harassment or harassment on the ground of sex

(1) A notification may be lodged with the FWC under this section:

(a) by a worker who claims that they have been sexually harassed or harassed on the ground of sex in any circumstances connected with being a worker; or

(b) jointly by 2 or more workers who claim that they have been sexually harassed or harassed on the ground of sex in any circumstances connected with being a worker for the same business or undertaking; or

(c) by an employee organisation that is entitled to represent the industrial interests of a worker or workers referred to in paragraph (a) or (b).

(2) The notification must be made within 6 years after the sexual harassment or harassment on the ground of sex occurred.

(3) If a person has made a notification under this section, the FWC must start to deal with the matter within 14 days after the notification is made.

(4) The FWC may deal with the notification by arbitration.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) If the FWC is satisfied that a worker has been sexually harassed or harassed on the ground of sex (the relevant harassment) in any circumstances connected with being a worker, the FWC may make any order it considers appropriate in all the circumstances of the case to:

(a) prevent the worker from being sexually harassed or harassed on the ground of sex in any circumstances connected with being a worker; or

(b) prevent further sexual harassment or harassment on the ground of sex in the business or undertaking for which the worker carried out, or will carry out, work at the time of the relevant harassment; or

(c) provide the worker with a remedy, including compensation.

(6) In dealing with a notification by a worker under this section, the FWC must take the following into account:

(a) fairness between the parties concerned;

(b) the public interest in the elimination of sexual harassment or harassment on the ground of sex;

(c) the extent to which the person conducting the business or undertaking for which the worker carried out, or will carry out, work at the time of the relevant harassment has taken all reasonable steps to prevent workers for the business or undertaking being sexually harassed or harassed on the ground of sex in any circumstances connected with being a worker.

(7) A person must not contravene a term of a FWC order made under this Part.

Note: This subsection is a civil remedy provision (see Part 4-1).

(4) Schedule 1, page 4 (before line 28), before item 11, insert:

10B Subsection 539(2) (after table item 12)

Insert:

(5) Schedule 1, page 5 (after line 4), after item 14, insert:

14A After Subdivision B of Division 3 of Part 6-1

Insert:

Subdivision BA — Notifications relating to sexual harassment and/or harassment on the ground of sex

733A General rule — complaints to the Australian Human Rights Commission

(1) A person must not lodge a notification under section 378D in relation to sexual harassment or harassment on the ground of sex if:

(a) a complaint has been lodged by, or on behalf of, the person in relation to the same sexual harassment or harassment on the ground of sex under Part IIB of the Australian Human Rights Commission Act 1986;and

(b) the complaint has not:

(i) been dealt with by the Australian Human Rights Commission; or

(ii) been withdrawn by the person who lodged the complaint.

(2) A person must not lodge a complaint under Part IIB of the Australian Human Rights Commission Act 1986 in relation to sexual harassment or harassment on the ground of sex if:

(a) a notification under section 378D has been lodged, by or on behalf of, the person in relation the same sexual harassment or harassment on the ground of sex; and

(b) the notification has not:

(i) been dealt with by the FWC; or

(ii) been withdrawn by the person who lodged the notification.

733B General rule — applications under Part 6-4B

(1) A person must not lodge a notification under section 378D in relation to sexual harassment or harassment on the ground of sex if:

(a) an application has been made by, or on behalf of, the person in relation to the same sexual harassment or harassment on the ground of sex under section 789FC; and

(b) the application has not:

(i) been dealt with by the FWC; or

(ii) been withdrawn by the person who made the application.

(2) A person must not make an application under section 789FC in relation to sexual harassment or harassment on the ground of sex if:

(a) a notification has been lodged by, or on behalf of, the person in relation to the same sexual harassment or harassment on the ground of sex under section 378D; and

(b) the notification has not:

(i) been dealt with by the FWC; or

(ii) been withdrawn by the person who lodged the notification.

(6) Schedule 1, item 28, page 7 (before line 7), before section 49, insert:

49A Notifications relating to sexual harassment or harassment on the ground of sex

Part 3-1A, as inserted by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021, applies in relation to sexual harassment or harassment on the ground of sex that occurred, or is claimed to have occurred, on or after the commencement of this section.

[Sheet 1385]

(1) Schedule 1, page 3 (before line 4), before item 1, insert:

1A Subsection 3(1) (definition of class member )

Repeal the definition, substitute:

class member:

(a) in relation to a representative complaint—means any of the persons on whose behalf the complaint was lodged, but does not include a person who has withdrawn under section 46PC; or

(b) in relation to a representative application—means any of the persons on whose behalf the application was made, but does not include a person who has withdrawn under subsection 46POA(7).

1B Subsection 3(1)

Insert:

representative application means an application made under section 46PO on behalf of at least one person who is not an applicant.

representative party means a person who makes a representative application.

(2) Schedule 1, page 3 (after line 17), after item 3, insert:

3A Subsection 46PO(1)

Repeal the subsection, substitute:

(1) If:

(a) a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and

(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

an application may be made to the Federal Court or the Federal Circuit Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

(1A) Subject to subsection (1B), the application may be made only by an affected person in relation to the terminated complaint.

(1B) If the unlawful discrimination alleged in the application is an act, omission or practice that is unlawful under Division 3 of Part II of the Sex Discrimination Act 1984, the application may be made:

(a) by an affected person in relation to the terminated complaint:

(i) on that person's own behalf; or

(ii) on behalf of that person and one or more other affected persons in relation to the terminated complaint or a related complaint; or

(b) by 2 or more affected persons in relation to the terminated complaint:

(i) on their own behalf; or

(ii) on behalf of themselves and one or more other affected persons in relation to the terminated complaint or a related complaint; or

(c) by a person or trade union on behalf of one or more other affected persons in relation to the terminated complaint or a related complaint.

Note: Part IVA of the Federal Court of Australia Act 1976 also allows representative proceedings to be commenced in the Federal Court in certain circumstances.

3B Paragraphs 46PO(3A)(b) and (c)

After "the complaint", insert ", and any related complaints covered by the application,".

3C After subsection 46PO(4)

Insert:

(4A) In the case of a representative application, subsection (4) applies as if a reference to an applicant included a reference to each person who is a class member.

3D At the end of section 46PO

Add:

(9) In this section:

related complaint, in relation to a terminated complaint, means a complaint:

(a) to which paragraphs (1)(a) and (b) apply; and

(b) that is against the same person as the terminated complaint; and

(c) that is in respect of, or arises out of, the same, similar or related circumstances as the terminated complaint; and

(d) that gives rise to a substantial common issue of law or fact with the terminated complaint.

3E After section 46PO

Insert:

46POA Additional rules applying to representative applications

Class member may not make separate application

(1) A person who is a class member for a representative application in relation to a complaint is not entitled to make a separate application under this Division in respect of the same complaint.

Consent required

(2) A representative application may not be made without the written consent of all class members.

Requirements for representative applications

(3) A representative application must:

(a) describe or otherwise identify the class members; and

(b) include a statement from the representative party certifying that each class member has consented, in writing, to being a class member; and

(c) specify the nature of the relief sought.

(4) In describing or otherwise identifying the class members, it is not necessary to name them or specify how many there are.

(5) However, a representative application must not identify, and must not contain information that is reasonably capable of being used to identify, a class member unless the class member has consented, in writing, to being so identified.

Right of class member to withdraw

(6) If a representative application is made, the court concerned must fix a date before which a class member may withdraw from a proceeding instituted by the application.

(7) A class member may withdraw from the proceeding by written notice given under the relevant Rules of Court at any time before the date so fixed.

(8) The court concerned, on the application of a class member, a representative party or a respondent in the proceeding, may fix another date so as to extend the period during which a class member may withdraw from the proceeding.

(9) Except with the leave of the court concerned, the hearing of the proceeding must not commence earlier than the date before which a class member may opt out of the proceeding.

[Sheet 1399]

(1) Schedule 1, item 4, page 3 (line 20), omit "or sexually harassed", substitute ", sexually harassed or harassed on the ground of sex".

(2) Schedule 1, item 5, page 3 (line 22), omit "or sexual harassment", substitute ", sexual harassment or harassment on the ground of sex".

(3) Schedule 1, item 6, page 3 (before line 25), before the definition of miscarriage, insert:

harass on the ground of sex has the meaning given by section 28AA of the Sex Discrimination Act 1984.

Note: Other parts of speech and grammatical forms of "harass on the ground of sex" (for example, "harassment on the ground of sex") have a corresponding meaning (see section 18A of the Acts Interpretation Act 1901).

harassed on the ground of sex at work: see subsection 789FD(2B).

(4) Schedule 1, item 10, page 4 (line 26), after "another person", insert "or harasses another person on the ground of sex".

(5) Schedule 1, item 11, page 4 (line 29), omit "or sexually harassed", substitute ", sexually harassed or harassed on the ground of sex".

(6) Schedule 1, item 12, page 4 (line 31), omit "or sexually harassed", substitute ", sexually harassed or harassed on the ground of sex".

(7) Schedule 1, item 13, page 5 (line 2), omit "or sexually harassed", substitute ", sexually harassed or harassed on the ground of sex".

(8) Schedule 1, item 14, page 5 (line 4), omit "or sexual harassment", substitute ", sexual harassment or harassment on the ground of sex".

(9) Schedule 1, item 15, page 5 (line 6), omit "or sexually harassed", substitute ", sexually harassed or harassed on the ground of sex".

(10) Schedule 1, item 16, page 5 (line 8), omit "or sexually harassed", substitute ", sexually harassed or harassed on the ground of sex".

(11) Schedule 1, item 17, page 5 (line 10), omit "or sexual harassment", substitute ", sexual harassment or harassment on the ground of sex".

(12) Schedule 1, item 18, page 5 (line 12), omit "or sexually harassed", substitute ", sexually harassed or harassed on the ground of sex".

(13) Schedule 1, item 19, page 5 (line 14), omit "or sexual harassment", substitute ", sexual harassment or harassment on the ground of sex".

(14) Schedule 1, item 20, page 5 (line 16), omit "or sexually harassed", substitute ", sexually harassed or harassed on the ground of sex".

(15) Schedule 1, item 21, page 5 (line 18), omit "or sexually harassed at work", substitute ", sexually harassed at work or harassed on the ground of sex at work".

(16) Schedule 1, item 22, page 5 (lines 21 to 23), omit subsection 789FD(2A), substitute:

(2A) A person is sexually harassed at work if:

(a) the person is sexually harassed by one or more individuals; and

(b) the harassment occurs in connection with the person being a worker.

(17) Schedule 1, item 22, page 5 (after line 23), after subsection 789FD(2A), insert:

(2B) A person is harassed on the ground of sex at work if:

(a) the person is harassed on the ground of sex by one or more individuals; and

(b) the harassment occurs in connection with the person being a worker.

(18) Schedule 1, item 23, page 5 (line 25), omit "or sexual harassment", substitute ", sexual harassment or harassment on the ground of sex".

(19) Schedule 1, item 24, page 6 (line 5), omit "either or both", substitute "any or all".

(20) Schedule 1, item 24, page 6 (after line 15), after subparagraph 789FF(1)(b)(ii), insert:

(iii) the FWC is satisfied that the worker has been harassed on the ground of sex at work by one or more individuals, and the FWC is satisfied that there is a risk that the worker will continue to be harassed on the ground of sex at work by the individual or individuals;

(21) Schedule 1, item 24, page 6 (lines 23 to 27), omit paragraph 789FF(1)(e), substitute:

(e) if subparagraph (b)(iii) applies—prevent the worker from being harassed on the ground of sex at work by the individual or individuals; or

(f) prevent any combination of the things referred to in paragraphs (c) to (e), as the case requires.

(22) Schedule 1, item 25, page 6 (line 29), omit "or sexual harassment", substitute ", sexual harassment or harassment on the ground of sex".

(23) Schedule 1, item 26, page 6 (line 31), omit "or sexually harassed", substitute ", sexually harassed or harassed on the ground of sex".

(24) Schedule 1, item 27, page 6 (line 33), omit "or sexual harassment", substitute ", sexual harassment or harassment on the ground of sex".

(25) Schedule 1, item 28, page 7 (after line 22), after clause 50, insert:

51 Orders to stop harassment on the ground of sex

For the purposes of subparagraph 789FF(1)(b)(iii) (as inserted by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021), it is immaterial whether the worker has been harassed on the ground of sex at work before, at or after the commencement of this section.

I've elected to move these together because I'm conscious of the time and the significance of passing those aspects of the bill that are important to Australian women. I will speak briefly about each of them in turn, commencing with the amendments on sheet 1385.

The Respect@Work report includes recommendation 23:

Amend the Australian Human Rights Commission Act to allow unions and other representative groups to bring representative claims to court, consistent with the existing provisions in the Australian Human Rights Commission Act that allow unions and other representative groups to bring a representative complaint to the Commission.

That recommendation could not be clearer—it is very straightforward—and neither could the government's rejection of this recommendation. The recommendation to facilitate representative actions has been endorsed by many submitters to the inquiry on this bill as an important means to provide greater access to justice for those seeking redress for workplace sexual and sex based harassment. But ensuring access to justice is clearly not a matter that this government thinks is of any importance to those who have been sexually harassed or have suffered sex based harassment. This bill does not implement this recommendation, and the government's response to the report overall simply notes the recommendation. This is another example of weasel words, where the government say they support all 55 recommendations, but, when you read the fine print, as with most other things, in fact they have absolutely no intention of dealing with them.

The government's response asserts that there is an existing mechanism to enable representative proceedings in the Federal Court. It is directly contradicted by the Respect@Work report, in which Commissioner Jenkins says:

… standing provisions to commence proceedings in the federal courts are limited to an 'affected person' which is defined as a person on whose behalf the complaint was lodged with the Commission. This means that the ability to take court proceedings under federal discrimination law is currently more constrained than the ability to bring complaints to the Commission. It prevents public-interest-based organisations from bringing an action in the courts—even if they have pursued the complaint in the Commission first.

Although there are provisions to bring a representative complaint to the Federal Court264 (not the Federal Circuit Court), these provisions are technical and complex, and different to the requirements under the Australian Human Rights Commission Act.

It is a pretty clear problem, isn't it? The ability to bring representative complaints is constrained; it is limited to just one of the two relevant courts; it is not aligned with the process for the Human Rights Commission, which means that it is more than necessarily complex; and it acts as an impediment to justice. Why wouldn't you fix this? You asked Commissioner Jenkins to go and look at these issues, but now you ignore her advice. You note it and then you assert something entirely contradictory. Again, this arrogant government thinks it knows better. It asks an expert to do a piece of work, a piece of work it is happy to trumpet as being a landmark piece of advice, and then does absolutely nothing about it. The amendment before the chamber on sheet 1385 seeks to implement recommendation 23.

I turn now to the amendments which are on sheet 1381. These amendments perform a very important role in the way that workplace sexual harassment and sex based harassment are dealt with under the Fair Work Act. Workers who are sexually harassed do need access to a fair, effective and efficient complaints mechanism, and this set of amendments would establish this. Not only is there a need for a clear prohibition on sexual harassment and sex based harassment, as recommended by the Respect@Work report and rejected by this government; there is also the need for a complaints provision in the Fair Work Act which would be available to all workers, including former and prospective workers, who seek a remedy through the Fair Work Commission for current or past sexual harassment. That is the effect of the amendments on page 1381.

I turn finally to the amendments set out on sheet 1399. These amendments are quite straightforward. They pick up two recommendations made by the Australian Human Rights Commission in their submission to the Senate inquiry on this bill. In their submission, the commission note that the bill explicitly provides that not only sexual harassment but also other sex based harassment is prohibited. This reflects the experience of many people who experience harassment at work that is on the basis of their sex but is not sexual in nature. The Human Rights Commission said this:

The important changes in the Bill to the Fair Work Act (and regulations) in relation to sexual harassment should also encompass the new legislative concept of sex-based harassment. That is, the Fair Work Commission should be able to issue a 'stop sex-based harassment order' and employers should be given the confidence that if an employee engages in sex-based harassment this will be a valid reason for the termination of their employment.

What is the point of referring a bill to a Senate inquiry for the experts, the very people who drafted the report, to make a submission and recommend a sensible technical amendment if the government is going to ignore it?

I'll remind senators that the only amendment moved by the government so far in this debate has been to defer commencement. The government has received expert advice from the commission—from the people who wrote the Respect@Work report. I simply cannot understand why this amendment could not be agreed to.

I make this final point: throughout the debate today, Labor has sought to make the argument that there was a comprehensive review undertaken of the legal and regulatory framework to support women in their workplaces. It was undertaken by the people hand-picked by the government with the expertise to do exactly this kind of work. The Australian Human Rights Commission has done this work for many other organisations very successfully. Why would the recommendations not be implemented? And why would the government persist with a pretence that they support all 55 recommendations, if they have absolutely no intention of legislating a very good number of them?