Michaelia Cash (WA, Liberal Party, Deputy Leader of the Government in the Senate) Share this | Hansard source

The government won't be supporting the amendment. Implementing recommendation 17 of the Respect@Work report, which this amendment goes very much towards, requires further policy consideration and consultation to examine the merits and to ensure that such a duty would operate effectively alongside existing duties that it acknowledged already exist under work health and safety laws and the Sex Discrimination Act, including to ensure—and this is something that Commissioner Jenkins referred to in her report—that additional complexities are not created for those seeking to use the protections. This includes an assessment against the model work health and safety laws, which already impose a positive duty on employers to protect workers from health and safety risks, including psychosocial risks such as sexual harassment, as far as reasonably practicable. Work health and safety laws also provide for compliance enforcement and inquiry functions to be exercised by work health and safety regulators. Employers that fail to meet obligations under work health and safety laws can be subject to prosecution and severe penalties.

Many of the concerns outlined in the Respect@Work report were in relation to the implementation of the work health and safety framework rather than the effectiveness of the framework itself. Since the Respect@Work report was released, there has been a focus by the government and its agencies on further improving the work health and safety framework and its implementation. Key measures that we've been looking at to date include that work health and safety ministers—and I have met with them and discussed this with them—have agreed to progress amendments to the model work health and safety regulations to deal with how to identify psychosocial risks, including sexual harassment, associated with psychological injury. A model code of practice is also being developed by Safe Work Australia to cover psychosocial health, including sexual harassment.

As part of the recent budget, Comcare will deliver national forums for Commonwealth and state and territory work health and safety inspectors on sexual harassment and training for employers and managers covered by the Commonwealth work health and safety laws, to better understand and meet their obligations in relation to sexual harassment laws. This also includes consideration of the existing vicarious liability provision in the Sex Discrimination Act, which ensures that, if a worker engages in unlawful conduct such as sex discrimination or harassment, their employer can also be held liable for sexual harassment if the employer did not take reasonable steps to prevent the conduct from occurring. This existing mechanism means that employers must take reasonable preventative steps, such as implementing policies and providing training, to minimise their potential liability should an incident occur.

In relation to some of the issues that Senator Pratt has raised, recently, in May 2021, work health and safety ministers agreed to progress amendments to model work health and safety regulations to deal with how to identify the psychosocial risks associated with psychological injury, including sexual harassment. This was a recommendation of, as you would probably be aware, the Boland review and also the Kate Jenkins review. It's been progressed by Safe Work Australia. Both Safe Work Australia and Comcare have published guidance on workplace sexual harassment. Safe Work Australia has published national guidance material for persons conducting a business or undertaking, including specific guidance for small business and advice for workers on preventing and dealing with workplace sexual harassment under the model work health and safety laws. Comcare has published guidance for employers, managers, supervisors and workers on meeting work health and safety responsibilities in relation to sexual harassment in the Commonwealth jurisdiction. One of the issues that did arise in the report was in relation to ensuring that people understand what their obligations are, so Comcare—which, as you know, is the government work health and safety regulator—is now going to deliver national forums for Commonwealth, state and territory work health and safety inspectors on sexual harassment, and training for employers and managers covered by Commonwealth work health and safety laws, to better understand and meet their obligations in relation to sexual harassment under the laws.

In terms of complexity, the proposed amendment raises a number of complex policy implementation and legal issues that require further consideration and consultation. As I've already said, this includes an assessment against the model work health and safety laws which—and people have articulated and acknowledged this in the chamber—already impose a positive duty on employers to protect workers from health and safety risks, including psychosocial risks such as sexual harassment, so far as is reasonably practicable. This was picked up in both the Boland review and the Kate Jenkins review. As I've also stated, it includes consideration of the existing vicarious liability provisions in the Sex Discrimination Act, which ensures that if a worker engages in unlawful conduct such as sex discrimination or harassment, their employer can also be held liable if the employer did not take reasonable steps to prevent the conduct from occurring.

Significant thought also needs to be given before providing the Australian Human Rights Commission with the additional inquiry and regulatory powers for discrimination and harassment in addition to its existing dispute resolution function. In relation to this, numerous issues require consideration. There are potential legal issues relating to the separation of powers, regulatory enforcement powers and functions, and the complaints handling and dispute resolution of the Australian Human Rights Commission. We also need to provide further consideration to the potential alignment with the Regulatory Powers (Standard Provisions) Act 2014 and other administrative law issues such as appropriate review and enforcement mechanisms. A proper assessment needs to be undertaken to ensure that powers and penalties are proportionate and appropriate and that they appropriately trigger the regulatory powers act. A proper review and appeal mechanisms will need to be put in place.