Larissa Waters (Queensland, Australian Greens) Share this | Hansard source

I rise to speak on the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022. The Respect@Work report shone a light on the scale of workplace sexual harassment, something that we've become all too familiar with in this place.

In her landmark report, the Sex Discrimination Commissioner, Kate Jenkins, set out a comprehensive, practical and targeted suite of reforms to tackle the problem. Those 55 recommendations were the product of many interviews and consultations with victims-survivors, business owners, government, unions, NGOs, lawyers and others, and they represented a holistic plan to address discrimination and structural inequalities, to relieve the burden on victims and to make workplaces safe. The recommendations were designed to be implemented as an integrated package, but the previous government opted to cherry-pick the recommendations that they supported. They legislated some of them but left out the key one—the positive duty on employers to provide a safe workplace. The then government voted against a joint Greens-Labor amendment to implement that positive duty. We called it out at the time, but we're really pleased that the new government is now finishing the job and implementing the recommendations in full.

The Greens welcome and support this bill. It is a positive and overdue reform to make workplaces safe and respectful for everyone. We have a number of amendments to improve its operation, but the significance of the changes that this bill will make cannot be overstated. The Respect@Work report was clear that current laws present all kinds of barriers to workers calling out harassment: cultural attitudes, costs, risks and the genuine fear that they'd be targeted at work through further harassment or loss of hours. This bill goes a long way towards removing those barriers.

Firstly, the positive duty: this was the centrepiece of the Respect@Work report, but it was something that the previous government and some members of the business community resisted. They claimed it was unnecessary because workplace health and safety laws already included duties to ensure workplace safety. Well, those were clearly not working. If they were, we wouldn't have seen and wouldn't still be seeing more than a third of workers experience sexual harassment. Those are just horrific numbers. 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 drive that cultural shift. It shifts the focus from individual employees having to report bad behaviour to individual employers having to work out what to do about it. It requires employers to proactively prevent discrimination and harassment in their workplaces. Without such a positive duty, we're stuck with the current reactive, adversarial victim-complaint approach that's failed so many people, mostly women, people of colour, people with disability or queer folk.

It won't be a one-size-fits-all response. The steps taken by each workplace will depend on their size and their nature, but every workplace, once this bill passes, will have a responsibility to do what is needed to keep staff and clients safe. We'll move an amendment proposing that employers be required to consult with their staff about the specific measures needed in their workplace to achieve that. The Human Rights Commission, a body with clear expertise on protecting human rights and avoiding workplace discrimination, will prepare guidance for employers and will have powers to investigate and take action when needed. Employers will be given an opportunity to set out a plan for what they'll do, but the commission can take compliance action if the business fails to make progress. We would like the compliance notices to be published in order to hold workplaces to account and provide guidance to other workplaces, and I'll be moving an amendment along those lines as well. The goal is supporting employers to be better employers who listen to their staff and respond, but with a compliance framework that allows strong action to be taken when employers don't lift their game.

I want to speak now on the hostile work environment provisions. Akin to the positive duty provisions, the bill takes a workplace-level approach to cultural change, which is good. Sexual harassment is more likely to occur where a workplace environment is sexually charged or hostile, even if the conduct is not directed at a particular person. There are many examples: mine sites where women are habitually given menial tasks and where predatory behaviour is ignored; hospitality businesses where women are expected to wear skimpy clothing and to put up with lecherous customers; or lunchrooms where sexist, racist, or homophobic jokes are told or laughed at by senior staff or where anti-trans posters are displayed. The 2018 national survey of sexual harassment found significantly higher rates of harassment in the fast food and retail industries, particularly for young women. This bill introduces an offence of creating and maintaining a hostile work environment. It creates a clear obligation on employers and staff to identify cultures, work practices, uniforms and office set-ups that could create an environment in which harassment is facilitated, condoned or ignored. We strongly support this change. However, we'll be proposing an amendment to ensure that the provisions operate as they are intended to.

The bill makes two significant changes to address systemic harassment and relieve the burden on individual workers to pursue complaints. It gives the Human Rights Commission powers to have a look at systemic problems and practices, and it allows representative bodies to take action on behalf of workers. Examining systemic behaviour across a sector or workplace helps to identify the root causes of discrimination affecting many employees, rather than requiring one person to stand up to their boss, run the gauntlet of the legal system and risk their reputation, their mental health, their job and their finances. Many workers want the harassment to stop but they don't want to be named as the victim. They want their workplace to be safe for them and others but they don't want to have to go through a court process and the emotional and financial toll that it takes. Representative applications provide a way for genuine cases to be heard and the employees to get justice without that personal toll.

The bill also introduces a welcome protection against victimisation of workers who make complaints, another step towards making workers feel confident to come forward. These are good changes, and we support them. In fact, we think that they should be replicated across all discrimination laws, and I'll be moving a second reading amendment in due course urging the government to progress that. The positive duty to provide a safe workplace should apply to all protected attributes so that employers have to take proactive action to prevent discrimination on the basis of age, race and disability as well as gender.

Now I want to talk about costs. One of the significant barriers to workers taking action against colleagues or bosses—and it's often the most significant one—is the financial risk involved. The Women's Legal Centre says:

Many women worry that they will not be believed and will be forced to pay the other side's legal fees. In the case of large businesses and government departments, these fees can be so significant that the average person would face financial ruin. It's no surprise that many women decide not to take this gamble.

The decision to make a complaint against someone in your workplace will always be difficult. Costs should not be the determining factor in whether workers are prepared to call out bad behaviour and insist on a safe workplace. The costs model that was proposed in this bill was intended to address this issue. However, more than 100 experts—victims-survivors, lawyers, unions, advocates—have raised concerns that the alleged fix would still act as a deterrent and, for some, would make it worse. Many women would still fear that making a complaint could be both traumatic and financially risky. Without the ability to be awarded costs if the complainant is successful, women would also not be able to attract the services of no-win no-fee lawyers, and we know that justice is not cheap in this country—more's the pity. That deterrence could be the difference between a harassing boss being held to account or being allowed to continue to harass other employees. Those 100 experts had a better solution—an equal access cost model that would protect complainants against the risk of costs if they lose but allow them to recover costs where the court finds that their employer or colleague has broken the law. We strongly support that model.

We were going to move an amendment to give effect to that model, but we've heard the government's concerns that having that model just for sexual harassment claims would put them on a different footing to other discrimination complaints. We would like to see the equal access costs model apply across the board, but we recognise that it's important to get this right, so we're very pleased that the government agreed with the Greens to pause those costs changes. They won't be moving them. We'll come to those when the government move their own amendments. Instead, they'll now conduct a full review of costs provisions, in consultation with all of those who raised concerns. We will continue to push to make sure that workers can access justice and can actually enforce these new rights that have been given to them. We're hopeful and confident that the review will ultimately end up with a more effective and equitable cost model that allows workers to get justice.

The bill also extends reporting obligations under the Workplace Gender Equality Act to the Commonwealth public sector. This is a very welcome move. Measuring data and monitoring progress is the key to closing the gender pay gap that, sadly, still persists across all industries. The Greens have long called for gender pay gap reporting to apply to the public sector, and we will continue to push for robust and transparent reporting across more workplaces and across more measures, including better data on the prevalence and resolution of sexual harassment complaints and the use of nondisclosure agreements to silence victims-survivors.

I'll talk briefly now about the review of the bill. This bill is a very significant and welcome change to the way that we'll approach harassment and discrimination in workplaces across Australia. It's a real opportunity to drive cultural change, and we need to know if it works. Given the scale and the importance of the changes, and given the diversity of workplace environments and employee experiences, it's important that we review how these changes are working in practice and whether they're achieving the aims of the Respect@Work report. We need to monitor how effectively the provisions of the bill are driving the cultural change that's needed to reduce the shocking levels of harassment in workplaces across the country and assess what additional reforms or support might be needed. So I, along with Senator Tyrrell and Senator Lambie, will be moving an amendment to require such a review. I'm pleased that the government has indicated support for that amendment.

Finally, I'd like to talk about funding. As I've said, this bill is a critical opportunity to drive cultural change, but that opportunity will be undermined without adequate funding to the Australian Human Rights Commission, who will undertake the extra powers and duties under this bill. I was pleased to see the budget dedicate additional resources to the Human Rights Commission, but this must be kept under regular review to make sure that it's enough for the commission to do its job. The proposed statutory review will look at that issue, but I urge the government to heed any calls from the commission regarding the money it needs.

This bill could also be undermined if workers and employers can't access support and advice about their rights and responsibilities under the bill. We need a well-funded, functioning network of working women's centres to provide practical advice and support to employees experiencing harassment. Independent, expert, community-based, trauma-informed services are essential to the successful implementation of this bill. The Greens are really proud to support this bill, and we think our amendments would make a good bill even better. Workers across Australia, particularly women, deserve to be safe, respected and listened to.

I want to conclude my remarks by commending the work of the Sex Discrimination Commissioner, Kate Jenkins, who drafted this very prescient report, which is now finally being legislated in full, and who has also done incredible work looking at parliamentary workplaces. She's finishing up her term soon, and I want to place on record a tribute to the quality of her work, which has had multipartisan support and which indeed will make many women safer in workplaces across the country. Thank you, Commissioner Jenkins.

I move the second-reading amendment on sheet 1713 circulated in my name:

At the end of the motion, add ", but the Senate:

(a) acknowledges the significance of the hostile work environment and positive duty provisions in this Bill in strengthening workplace culture; and

(b) calls on the Government to urgently consider the creation of similar obligations under the Racial Discrimination Act 1975, the Age Discrimination Act 2004, and the Disability Discrimination Act 1992".