Wednesday, 1 September 2021
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021; In Committee
[by video link] I will make some comments on these amendments. As Senator McAllister said, these amendments have been circulated in both of our names. Just for context, when the government originally said that they were going to implement all of the 55 recommendations, we initially took them at their word, but, frankly, we thought it was too good to be true, so for months we have been drafting amendments to give effect to the full suite of the 55 recommendations. Thankfully that meant that much of the drafting work had already been done some weeks ago. It's unfortunate that the government didn't actually do that work themselves.
I want to place on record that, in recent times, we have worked collaboratively on this bill with the opposition. There have been some amendments where we thought our drafting was better; there have been some amendments where we thought their drafting was better. We've come to the view that this is a bill that needs improvement and we will be collegiately moving amendments to try to fix the bill today. The most important one, though, is this one that Senator McAllister has just moved. It stands in my name and also in hers, so I also now move it. The purpose of it is to create that positive duty. We've spoken a lot about this topic already because it was the key point of Commissioner Jenkins's Respect@Work report. The government has, bizarrely, introduced a bill that leaves it out. Its absence from the bill has been described by the Sex Discrimination Commissioner herself as 'a missed opportunity'. And the vast majority of submitters to the Senate inquiry emphasised that the positive duty was critical to achieving the objectives of the Respect@Work report.
Eliminating workplace sexual harassment will take a big cultural shift, and a positive duty to create and maintain a safe workplace is the best way to achieve that cultural shift. Without this positive duty, the other changes that are effected by this bill, which are important improvements, albeit small ones, are undermined. And it will reinforce the approach, as is the case at the minute, where there's a reactive, adversarial victim complaint approach. It shouldn't all be on the shoulders of one person to take on their whole workplace. It should be on the shoulders of the workplace to make sure that its workers are safe.
The government has insisted throughout that it's not necessary to have a positive duty in the Sex Discrimination Act because, they say, workplace health and safety laws already have positive duties to ensure workplace safety, but it's clearly not working. Even some of the government's own stakeholders, including the Minerals Council, pointed out that they thought those existing rules in workplace health and safety laws are not working for sexual harassment. It's not stemming the tide, where 40 per cent of women are being harassed sexually at work. So that's why we need to have a positive duty.
I want to just mention the importance of this. I am sure many offices have had contact about this bill from young workers and from young women in particular. So many women contact my office with stories of workplace harassment, and I am sure that that's not just my office. The scale of the problem is undeniable, and there is a need for significant change in how we tackle this problem. One of the stories that I heard recently emphasises and underscores why we need this positive duty. A young woman reached out to me, and I had a very heartfelt meeting with her. She started work as a casual at a large retail music chain while she was still at high school. She was 15. She would arrive at work wearing her school uniform, so people knew that she was young. She would talk about things happening at school, but her team leader, who was a man in his 20s, took advantage of his position and made moves on her. They then ultimately began a secret relationship which he, of course, urged her not to tell the boss about. She was young. It was her first job. He was her supervisor—her much older supervisor. When she later told management about the relationship, they didn't take the complaint seriously, and they tried to tell her that she'd consented to the relationship. She became isolated at work. She lost confidence. She wondered if she had done the wrong thing by making the complaint. She hadn't done the wrong thing by making the complaint. That is a story that illustrates perfectly why we need a positive duty that puts the onus on employers to proactively create a safe workplace. We need that duty on employers to set clear expectations, to check in with staff and to foster an environment where young workers feel comfortable to ask questions about what's happening or to raise concerns and know that they will be listened to and believed. Employers shouldn't be able to just overlook or dismiss inappropriate behaviour and hope that no formal complaint is lodged.
I might add at this point that the Respect@Work report also recommends more comprehensive training for young people about their workplace rights, about what they can expect in their first job, about what they don't have to put up with and about what behaviour is unlawful. This is essential, and the government should fund the development and delivery of such training. I might add that that's part of the reason that we supported Senator Griff's second reading amendment, which called for working-with-children checks for employers who employ minors. It's a shame that amendment did not pass.
I'll continue and then I will commend the amendments to the chamber. The government seem to say that it's all too complicated to do what these amendments seek to do. After the report gathered dust for a year, they have hastily tried to get this bill done, but it's just all a bit too tricky—'Boy, this is a big issue'—and they just can't do it justice. The Respect@Work recommendations were made after extensive consultation with business, government, practitioners, unions and workers. Commissioner Jenkins understood the complexity—indeed, the complexity of the current system was one of the problems—and she recommended a positive duty. The government got her report nearly 18 months ago. The time for thinking about it and hand-wringing is over. We need action. The government should support these amendments and show the women of Australia that it takes their safety seriously. Any vote otherwise would be very telling.
These amendments allow the commission to undertake an investigation where a workplace is suspected of not meeting its positive duties. The commission has broad investigative and investigation powers. Employers can be issued with a show-cause notice. They're provided with advice about what is needed to meet the duty and they are given an opportunity to set out a plan for what they would do. The commission can accept voluntary enforceable undertakings from businesses, which commit them to undertaking improvements. This is an approach that has worked well for other offences in the Human Rights Commission Act. Where an employer's response is inadequate—if these amendments pass—the commission could seek orders requiring certain actions to be taken by the employer, such as introducing training or implementing a clearer complaints procedure. The emphasis is on supporting employers to be better employers, but with a compliance and enforcement framework that allows strong action to be taken where employers don't lift their game.
These amendments strike an appropriate balance. The government should have included these amendments as the centrepiece of their own bill. These amendments were a bit complex to draft, but after some fair consultation it was able to done, even in the condensed time frame that the government is now working to. I really hope the government supports these amendments. You can't do half the job with sexual harassment. The report says that you need to do all of these things to make women workers safe. The Australian public won't accept you just doing some of them and leaving out the main point. You're not going to get away with this politically and you're underselling the need for women workers to be safe in their workplace. I beg the government to do the right thing and vote for these amendments. Yes, they have the name of the Greens and the opposition on them, but this should be above politics. We should be addressing this issue to keep women safe in their workplace. This shouldn't be about whose name is on the amendments. We urge you to do the right thing by women in this nation and support these amendments.