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

In the first instance, I table a supplementary explanatory memorandum relating to the government amendment to be moved to this bill, and I also therefore seek leave to move government amendment on sheet QL186.

Leave granted.

I move the amendment:

(1) Schedule 1, item 28, page 7 (after line 16), after section 49, insert:

49A Applications for orders to stop sexual harassment

The amendments of section 789FC made by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 apply in relation to an application made under that section after the end of the 2-month period beginning at the commencement of this section.

This amendment, as I've already articulated in my summing up speech, gives effect to the recommendation of the Senate Education and Employment Legislation Committee report on the bill, by delaying applications being made under the changes to the bullying provisions in the Fair Work Act until two months after the bill commences. This recommendation was in response to concerns raised by the Fair Work Commission in its submission to the Senate committee about its capacity to successfully implement the changes to its antibullying jurisdiction, given it anticipates an increase in applications when the changes take effect. The committee obviously took on board that feedback from the Fair Work Commission and made the recommendation, and the government is more than happy to move that.

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

I note that this is in fact the only amendment that the government will be seeking to move during this period of committee consideration. I think that's just worth reflecting on for a moment, because the sorry history of this legislation is this. The government sat on a report that it had commissioned into sexual harassment in Australian workplaces. It commissioned this report and then it sat on it for a full year—at least a year, in fact, because all the indications are that an early draft was given to them even months before it was formally tabled.

Now, Mr Porter, for reasons he has never bothered to explain, didn't think that this was a matter worthy of his attention, and, in fact, when I asked questions of the department about this in Senate estimates, they rather shamefacedly revealed—and I feel for the department, actually—that, in an entire year, the person that Mr Morrison thought suitable to be the Attorney-General had not bothered to speak to Commissioner Jenkins about her work. Mr Porter has never actually explained why it was that he took so little interest in sexual harassment in Australian workplaces—never bothered; never put that on the record. But I think many of us would have our own theories about why this was of so little interest to Mr Porter.

Finally, scandal after scandal after scandal has forced this government to engage with the questions that face Australian women. Tens of thousands of women mobilised around the country to demand that their interests be observed—to demand that the government start to engage with the reality that every woman in this country understands: that Australian women's working lives are not equal; that Australian women are subject to too much violence, at home and at work; that there is too much discrimination and that people have had enough. What was Mr Morrison's response to all of this? It was to hide inside. It was to refuse to engage with the thousands of women who'd made their way to the grounds of this place to voice their dissent and their concern that the government does not respond to their interests. Scandal after scandal after scandal—and we finally get a response to the Respect@Work report.

As to the government's response, their headline claim was that they accepted all 55 recommendations, but, when we actually go through the implementation road map, that's not what's there—that's not what is there at all. We see mealy-mouthed responses: 'accept in principle'; 'note'—note, but insert caveat which in fact negates the subject of the recommendation from Commissioner Jenkins. And then the legislation before us does not even fulfil the promises that are made in the road map.

So my question to the minister is this. Why have so few of Commissioner Jenkins's recommendations actually been reflected in this legislation? Why do Australian women have to wait?

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

The government agreed to—in full, in principle or in part—or noted all 55 recommendations of the Respect@Work report in the Roadmap for Respect. Only 15 of the 55 recommendations proposed specific amendments to federal legislation; many of the remaining recommendations were directed to state and territory governments, independent agencies, regulators and the private sector., recognising the whole-of-community approach required for real change outlined in Sex Discrimination Commissioner Kate Jenkins's Respect@Work report.

In addition to developing the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, the Commonwealth, or the Morrison government, has already taken significant steps to implement other recommendations from the Respect@Work report. These include establishing the Respect@Work Council, to improve coordination, consistency and clarity across the legal and regulatory frameworks; and progressing work on recommendations requiring joint action through intergovernmental meetings such as national cabinet, the meeting of attorneys-general, the Women's Safety Taskforce and the meeting of work health and safety ministers.

In the 2021-22 budget, we've committed over $21.5 million to implementing the Roadmap for Respect. We are also, as you will be aware, amending the Fair Work Regulations in response to recommendation 31 of the Respect@Work report. The bill itself makes key amendments that would immediately strengthen the overarching legal framework with respect to sex discrimination and harassment. The government has prioritised those reforms which could be implemented quickly and easily. More complex reforms, as I have already articulated in my summing-up speech, will require additional consideration and consultation. This was actually recognised by the committee, who recommended that the bill be passed.

The amendments in the bill are informed by extensive consultation, including targeted consultation on a draft version of the bill prior to its introduction, public consultation by the Senate Education and Employment Legislation Committee and extensive public consultation undertaken by the Australian Human Rights Commission in developing the Respect@Work report.

Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I'm sorry that I need to make this kind of contribution at this point in time, because there was so much promise, so much hope and so much passion and energy for a wholesale change to the outcomes for Australian women at work. I stand as a female member of the great Australian Labor Party, on the back of the history of this great party, to make safe workplaces a reality in this country. The Australian Labor Party, for its entire 120-year history, has been about the lives of workers and their protection in the workplace. It might have been shearers and miners who gave breath to our extraordinary political force so long ago, and I dare say they could scarcely imagine the kind of society successive generations have created, but they could see the common, strong thread of workers' rights that links us back to those who sat under that Tree of Knowledge.

I want to point to a very important, relatively short document that sits at the back of the report from the Senate Education and Employment Legislation Committee on the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021. It's a shorter document than I hoped it might be, but the fact is that the inquiry into this very important bill was unbelievably short. After the government, through Christian Porter, delayed any response to this remarkable report here—hundreds and hundreds of pages, with thousands of consultations clearly setting out a road map, of a kind, that was indicated to this government—we had no action. When we finally got to the point where something was to be done—and I will acknowledge that Senator Cash, in her new role, actually blew the dust off the government's copy of this and got on with the job of doing something—this government has been found wanting. The short inquiry forced contributors to provide their response to this parliament in the shortest of time. The short inquiry—truncated to two days—drew from witnesses evidence that indicated that they had barely had time to provide a response to the government legislation. In fact, the government prompted action when we had received, after the inquiry, confidential reports—I won't reveal them—from people and peak bodies that had wanted to participate but were so cut short in their capacity to respond that they ended up not being able to fully interrogate the piece of legislation that the government is advancing. So we have to characterise what's happened here as a 'do nothing' response and then a 'let's get this sorted in a hurry' response. Neither of those actually leads to proper, careful legislation.

Labor, in the course of this debate this morning, will move a significant number of amendments that I encourage the Greens and other senators on the crossbench to really have a good look at and support, because this moment is not going to come again. After the report, there was no action, and then there was this legislation. The fanfare that's going to go with this will say: 'Basically, the government accepted all 55 recommendations. It's all good here. We've sorted the problem of sexual discrimination and harassment at work.' That's what the headline takeaway is going to be: 'The government did this.' But they didn't. They haven't.

At the back of the committee report that I am referring to there is a dissenting report of equal length from Labor senators. For people who really want to know what the government are doing, or the lack of what they're doing, that dissenting report will give them the outline of what's missing. Senator Cash, in her contribution in response to Senator McAllister's question, indicated again that there was support for the 55 recommendations, but Senator McAllister has already well articulated the reality that it was a mealy-mouthed response to those 55 recommendations, and participants in the inquiry made it very, very clear that the government is not accepting all 55 recommendations. Let that be very clear. This document, so carefully constructed by Kate Jenkins, the Sex Discrimination Commissioner, telling the stories of Australians who have experienced sexual harassment and who came forward and retraumatised themselves on many occasions to retell their stories, is not being given full voice and a full response by this government. Senator Cash has indicated in her defence that there were 16 legislative actions that were recommended, but this government's only taking six of them. That's not a pass in anyone's book.

So let's be clear about where we are today with regard to this particular matter. I'm sure Senator Cash can see, as Labor senators see and as ordinary Australians see, that sexual harassment in the workplace is a very significant hazard. There is not only the personal suffering and pain; the cost of sexual harassment in the workplace hurts productivity in this nation. It hurts lives, it hurts productivity and it impacts negatively on businesses. It costs the Australian people a huge amount in terms of mental health and damage. Labor says: enough is enough.

This bill would have been a game changer if the government had actually taken on the task that was served up by Commissioner Jenkins and properly legislated this, with all the resources it as the government has, to create great legislation to give protection in the workplace. But the government seems to have squibbed it here. So my question, Senator Cash, is: there were 15 legislative actions recommended; why did the government only have enough courage or give itself enough time to get up six?

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

Senator O'Neill, I completely reject the assertions that you have made in that statement to the Senate. I have already articulated that the government has agreed in full, in principle or in part or noted 55 recommendations of the Respect@Work report in the Roadmap for Respect. I have also articulated that only 15 of the 55 recommendations proposed specific amendments to federal legislation.

If you've read the report—and I know that you have—you would also understand that many of the remaining recommendations were directed to state and territory governments, to independent agencies, to regulators and to the private sector. The reason that the Sex Discrimination Commissioner did this was that she recognised, as we do—and I'm sure you do as well—that a whole-of-community approach was required for real change, as she has clearly articulated in her Respect@Work report.

As I have also already articulated, both in my summing-up speech and in response to questions raised by Senator McAllister, in addition to developing the bill, the Commonwealth has already taken significant steps to implement other recommendations from the Respect@Work report. Again, as I've already articulated—but I'm happy to articulate it again—this includes establishing the Respect@Work Council to improve coordination, consistency and clarity across the legal and regulatory frameworks and progressive work on recommendations requiring joint action, because many of them do require joint action, through intergovernmental meetings such as the national cabinet, the Meeting of Attorneys-General, the Women's Safety Taskforce and meetings of the work, health and safety ministers. I think I have already advised as well that in the 2021-22 budget we committed funding to implementing the Roadmap for Respect and we're also amending the Fair Work Regulations in response to recommendation 31 of the Respect@Work report.

When we provided the government's response, I said at the time, with the Prime Minister, that the bill makes key amendments that would immediately strengthen the overarching legal framework with respect to sex discrimination and harassment. The government has prioritised those reforms which could be implemented quickly and easily. And, in my summing-up speech, I did go through a number of the amendments that you propose to move, which are in relation to a number of the recommendations in the Respect@Work report. The comment that I made was that more complex reforms will require additional consideration and consultation and that this was recognised by the committee, who recommended that the bill be passed.

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

[by video link] This government is botching up this legislation. They botched the response to the rape of Brittany Higgins in the building that you folk are now sitting in—I'm of course remoting in; they botched the response to the allegations of rape against a sitting cabinet member; and now they are botching a report which made very clear recommendations that were meant to be taken as a package to protect workers in their workplace. The fact that the government are doing half the job and trying to pretend that they are doing the full job is just reprehensible—and I hope nobody is fooled by this. I think the government think that they want to be seen to be tackling this issue because they know they have a political problem with women. Well, is it any wonder that you have a political problem with women when you are not taking these issues seriously?

Commissioner Jenkins did a comprehensive and detailed report. The key centrepiece recommendation of that report was for a positive duty on employers to provide a safe workplace for workers. It's not an outrageous concept. We have workplace health and safety laws to deliver the physical safety of workers in that traditional context. But this recommendation shows that that's not working for sexual harassment. So we need an obligation on employers to provide a safe workplace. It cited statistics that 40 per cent of women in the workplace are being sexually harassed. What's worse are the figures for young female workers. More than half of them have reported that they're experiencing sexual harassment in the workplace.

Many of us have children in this place, and many of our children will soon be old enough to get their first job. How on earth on our consciences can we live with sending them into workplaces where more than half of them will be sexually harassed as juniors, where they'd have no idea what the unwritten rules of the workplace are and where the burden on them to raise this issue would be on their own shoulders. That's why we'll be moving amendments, once we come to them, for representative actions, so that the burden isn't on one individual worker, one lone woman in a workplace, to tackle the entire establishment within which she works. But that's another matter.

If we had that obligation on employers to provide a safe workplace, many of these issues could be tackled. It would drive that cultural shift. It would send that message to colleagues, to bosses, to workplaces everywhere that it's not okay to sexually harass anybody at work. Frankly, it's just appalling that you even have to make that point. Surely that should be understood. But the fact is that it's not, and the rates of harassment are off the charts. This government has the chance to fix that, and it's choosing to ignore that key recommendation. I genuinely don't understand how they think they can get away with this. We keep asking—the opposition keeps asking, the media keeps asking—why aren't you acting on this key recommendation? Yesterday, we heard from Senator Henderson, who said, 'We haven't not acted on that recommendation; we just haven't done it yet.' I think that was the nub of her contribution. We just heard Minister Cash, again, run the line that they've agreed in part or in full to all the recommendations. I'm sorry, it's codswallop. Where is the amendment to say that employers have to provide a safe workplace? Why are the Greens and the opposition jointly moving that amendment today? Because we understand that this isn't about politics. This is about the safety of workers and the 51 per cent of the population who deserve not to be harassed in their place of work. Why is it taking the chamber to do the government's job? Why on earth is the government going to vote against that amendment?

Yesterday, Senator Henderson implied that the government needed more time to consider the recommendation. My question to the minister is: Are you really going to draft an amendment to provide a safe workplace? Are you really asking for more time, after 17 months of having had this report, for more than a year of which it gathered dust in the draw of Christian Porter? Are you really trying to tell us that you might do this in future? Frankly, we don't believe you. You've got the chance to do it today. You should have done it yourself. This should have been in your own bill. It's not.

The Greens and the opposition are moving an amendment to say that employers everywhere should have a positive duty to provide a safe workplace. Is the government really going to vote against that? These issues are actually real. This is actually about making people safe right across the country. This is an issue that shouldn't be about whether or not you think this is a good political move for you in the lead-up to the election. This shouldn't be about whether you need to win back women voters because your Prime Minister is so out of touch, lives in the 1950s and thinks women belong in the kitchen. This is actually real. This will affect people's real lives, and it will keep people safe. How can you possibly not be moving this amendment? How can you possibly not support it when the Greens and Labor moved for it to be added?

We collaborated on that amendment. There would be a six-month period for businesses to have time to come to grips with this new work requirement. There would be supporting material drafted by the Human Rights Commission to assist employers to understand this new obligation on them and to work out what it meant for them in the range of different sized workplaces. Obviously, it would mean a lot more for a very large and well-resourced workplace than it would for a much smaller workplace, and perhaps different levels of things would have to be done to provide that safe workplace, but there would be a transition period. There's no excuse to not support the obligation to have a safe workplace and for employers to provide that for their staff.

My question to you is: can we really believe that you are going to tackle this at some point in the future? You've had enough time. You haven't done the main thing that this report called on you to do: to provide that safety for the 40 per cent of women who are sexually harassed in their place of work. How can you live with yourself? I guess that is in fact my question. How can you live with yourself, knowing you've got the chance to fix this? How can you actively block it, probably with One Nation in tow as they always are? We heard Senator Hanson describe this issue as 'virtue-signalling witch-hunts'. I had to turn my camera off because I was actually in peals of laughter at Senator Hanson's contribution. It was so unhinged and so straight from the playbook of the Men's Rights Association that it just beggared belief. Are you really going to gang up with One Nation to deny protection for the 40 per cent of women in workplaces who are being sexually harassed?

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

I believe, Senator Waters, I've already articulated my answer to many of the propositions that you've put to me in my responses to other questions that have been raised in the chamber. What other parties do on amendments that are put forward is a decision for the other parties. The government has its position. What other parties do other parties do. Would it assist—and I'll look to Senator McAllister for some direction—given we're going to be talking through specific amendments, if we put the government's amendment and then turn to the specific amendments so we know exactly what we are addressing at a particular point in time? Would that assist?

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

Senator Cash, I think it would, although I do believe that Senator Pratt has a more general proposition that she'd like to speak to before we do so. Senator Pratt, is that correct?

Louise Pratt (WA, Australian Labor Party, Shadow Assistant Minister for Manufacturing) Share this | Link to this | Hansard source

My anger at the government in relation to what's been dished up in this legislation is palpable. Minister Cash has just told this chamber that the bill represents what they could pull together quickly and easily, even though the report was handed down by Commissioner Jenkins at the beginning of last year and the government had an early copy of it—over a year without responding.

I feel like I'm truly between a rock and a hard place today in contributing to this debate, because I want to interrogate in this place all of the outstanding issues and recommendations in Commissioner Jenkins's report. However, we know we have a timetable in this place that we need to meet. We have other issues in other legislation before the parliament this week that we also need to complete in a timely way because it affects women's lives. It's at the convenience of the government, in terms of which legislation they choose to put up first, as to whether we could, for example, fix paid parental leave, which we again need to fix in this place later this week. That's because the government botched the legislation by not leaving themselves the flexibility to fix it. Because of the coronavirus pandemic, they didn't leave themselves the flexibility to fix it even though we in this place told them they should. I know there are other important issues that affect women's lives that we need to get to and debate, which means I feel terribly truncated in all of the very substantive issues that we should be able to interrogate in a detailed way during this committee discussion. It is entirely on the head of this government, due to its incompetence not only in managing paid parental leave but also in how it has handled this set of issues from the outset, when the former Attorney-General, Christian Porter, sat on this report so that Minister Cash was left with what could be implemented quickly and easily. There was no need for the government to treat this as an exercise in dishing up to the Senate what could be done quickly and easily. Frankly, there's an opportunity to accept amendments that could fix the bill now, in line with Commissioner Jenkins's recommendations.

The bill in its current form does not come even close to the comprehensive package that Commissioner Jenkins put forward. There's no positive duty in the Sex Discrimination Act. I'll frame my first question to Senator Cash in relation to that. The government said, over and over again, that work health and safety was the positive duty. Commissioner Jenkins said the onus in the Work Health And Safety Act was not an effectively framed positive duty. The government then said, 'Well, it's covered in psychosocial hazards, and we all know they need to be reformed.' Then Commissioner Jenkins said: 'Well, that's not good enough. It's not like other hazards in the workplace, where you've got, for example, a positive duty to ensure that someone mops up a wet floor.' In the workplace, wet floors will be created, and you need to mop them up, but, in the case of sexual harassment, it is not something that should be happening in Australia's workplaces. It is indecent behaviour. Yet, Minister Cash, in these amendments to the Fair Work Act, you do not expressly prohibit sexual harassment.

I don't see why it should be framed as a positive duty when it is not something that should be occurring in Australian workplaces. Positive duties are about the activities that you undertake in the course of business. The way the Work Health and Safety Act frames its positive duties is about getting the actual job done. It's about how you go about your main business safely. But sexual harassment is not something that should be occurring in Australian workplaces as a matter of course. If you can't distinguish between how duties within the Work Health and Safety Act should operate and how duties within the Sex Discrimination Act should operate, then heaven help us with you as the Attorney-General, Minister Cash.

As raised by Commissioner Jenkins and many others, women in Australia have a terrible time bringing these cases to court. Yet, in this legislation, you do not allow representative groups to bring representative claims to court. You do not insert a cost-protection provision, consistent with section 570 of the Fair Work Act, and you do not provide a broadened 'stop sexual harassment' order to cover sex based harassment extending to any circumstances connected to work. In Commissioner Jenkins's report, the reasons these things need to be done were well articulated, and I don't believe you've got any excuse for continuing to sit on them as things that can't be done quickly and easily. The legislation before us does not prevent the creation of hostile work environments. Frankly, I find that incredible, when you look at what the Work Health and Safety Act, the Fair Work Act and our Sex Discrimination Act should be there to provide.

In relation to the positive duty, even the Minerals Council agreed. Tania Constable of the MCA said that, given the significance of the issue and the failure of existing laws to adequately address the problem, they would support there being a positive duty in the Sex Discrimination Act. So, Minister, I've got a technical question now to ask you. There are workplaces in Australia that are not covered by work health and safety laws, so even your minimalistic argument that they are covered by the Work Health and Safety Act and the model laws is completely void. That includes the workplaces where we have had sexual assault and sexual harassment in mining camps in Western Australia. So please explain to me how you are going to protect women—all Australians, but especially women—from sexual harassment in mining camps in Western Australia, in Queensland and right around the country when they're not currently covered by the Work Health and Safety Act?

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

Again, I will seek guidance from Senator McAllister. I'm happy to put the government's amendment and for that to be voted on. Then, if you move your amendment with the Greens amendment on the positive duty, I will be able to properly respond to those questions, and we will have an amendment before the chair, if that assists.

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

Senator Cash, I'm happy for you to proceed either way. I think Senator Pratt has a very specific question. You may wish to answer it now, but I would in general agree with your strategy that we want to move through the amendments.

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

I'll leave my comments then to addressing the amendment when it's put, because my comments will directly go to your amendment.

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

As Senator Waters has indicated in her earlier contribution, the Greens and Labor have, separately, concluded that this bill requires substantial amendment. Certainly, from a Labor perspective, we recognise that there is only so much that can be done in the chamber when a bill with as many deficiencies as this one has is presented to us. The Labor approach has been to try and move amendments which remedy the worst of the omissions and which try and deal as best we can with the recommendations made by Commissioner Jenkins in her very substantive and very significant report.

One of those recommendations is the positive duty, and, indeed, this is at the heart of the report that was brought forward by Commissioner Jenkins. Just to put it really plainly for people who are listening at home, right now the tool we rely on to get workplaces to become safer is an individual making a complaint. When surveyed, Australian women overwhelmingly say, yes, they have been sexually harassed at work, often in the last 12 months. The numbers are extraordinary. Most of them don't make a complaint. Most of them don't ever tell anyone about it at all. Unfortunately, even in this building, we have stories about the consequences for women who make complaints. Women correctly apprehend that their careers, their livelihoods and their reputations are at stake when they are the complainant, and most women choose to remain silent. And the conclusion we should draw from all of those data points is that this is not an effective mechanism to make our workplaces safer. It won't be an effective mechanism to make this parliament safer, and it won't be an effective mechanism to make safer any of the workplaces around the country where women are seeking our support and seeking protection in this place. It's on that basis that Labor has concluded that we do wish to move here amendments to insert a positive duty obligation onto employers, consistent with the recommendation made by Commissioner Jenkins. Senator Waters has spoken already in her contributions so far about her views on this, and these are amendments that will be moved jointly by the Greens and Labor.

I want to make a few remarks about the drafting approach that we've taken. We are aware that we need to make sure that a positive duty does not create an unreasonable burden on employers, so the way our amendment is drafted will ensure that, consistent with recommendation 17, the measures required to fill a positive duty must be reasonable and proportionate, taking into account factors that include the size of the person's business or operations, the nature and circumstances of the business and operations, the person's resources, the person's business and operational priorities, the practicability and cost of the measures, and all other relevant facts and circumstances.

We also recognise that it will take time for employers to respond to a new obligation, so the amendments circulated indicate that it would not commence for six months following the passage of the bill. That will allow employers time to ensure that they are aware of and able to comply with their new obligation to take reasonable and proportionate measures to eliminate discrimination and sexual harassment, harassment on the ground of sex or victimisation in their workplace prior to the formal commencement of the duty. The amendment would also require the Human Rights Commission to develop guidance material for employers. This is because Labor wants to make it as easy as possible for employers to understand their obligations. The purpose of introducing a positive duty is not to make life difficult for Australian businesses. It is to make life better for Australian women.

Of course, many employers across Australia are already doing the right thing, and in some parts of Australia similar duties already exist in law. And let me tell you these duties in those places have not brought the economy crashing to its knees. Commissioner Jenkins herself responded to concerns that the introduction of a positive duty in the Sex Discrimination Act could create further complexity, uncertainty and duplication by saying this:

This would not impose an undue regulatory burden and has a greater chance of reducing the cost of sexual harassment to business.

Similar duties have been on the books in Victoria for a decade without any adverse impact on business, and the Respect@Work Council would work to ensure that the duties are clear, streamlined and easy to implement.

These amendments would also implement recommendation 18 of the Respect@Work report, which called for the Sex Discrimination Commission to be given the function of assessing compliance with the new duty and for enforcement. These powers are self-evidently necessary. They will, among other things, empower the commission to inquire into an organisation's compliance of positive duty in a prescribed range of circumstances, such as where the commission is satisfied that there are reasonable grounds to suspect that a contravention of the duty has occurred, and the commission will be empowered to issue compliance notices if it considers an organisation has failed to comply with the positive duty, enter into agreements or voluntary undertakings with an organisation and make an application to the Federal Court or the Federal Circuit Court for an order requiring compliance with the duty.

I want to acknowledge Senator Waters for her willingness to collaborate on this, and I again note that these are amendments that have been circulated jointly in our names. I seek leave now to move together items (1) to (4) on sheet 1369.

Leave is granted.

I, and also on behalf of Senator Waters, move opposition and Greens' amendments (1) to (4) on sheet 1369:

(1) Clause 2, page 2 (table item 1), omit the table item, substitute:

(2) Schedule 1, item 77, page 19 (after line 9), after Division 5, insert:

Division 6 — Duty to eliminate discrimination, sexual harassment, harassment on the ground of sex and victimisation

47B Purpose of Division

The purpose of this Division is to provide for the taking of positive action by employers and persons conducting a business or undertaking to eliminate discrimination, sexual harassment, harassment on the ground of sex and victimisation.

47C Duty to eliminate discrimination, sexual harassment, harassment on the ground of sex or victimisation

(1) This section applies to an employer or a person conducting a business or undertaking who has a duty under this Act not to engage in discrimination, sexual harassment, harassment on the ground of sex or victimisation.

(2) It is unlawful for the employer or person to fail to take reasonable and proportionate measures to eliminate that discrimination, sexual harassment, harassment on the ground of sex or victimisation as far as possible.

Note: See also the definition of unlawful discrimination in the Australian Human Rights Commission Act 1986.

(3) In determining whether a measure is reasonable and proportionate, the following factors must be considered:

(a) the size of the employer's or person's business or operations;

(b) the nature and circumstances of the employer's or person's business or operations;

(c) the employer's or person's resources;

(d) the employer's or person's business and operational priorities;

(e) the practicability and the cost of the measures;

(f) any other relevant factors.

Note 1: Other relevant factors may include, for example, systemic issues within a particular industry or workplace.

Note 2: Examples of measures that may be reasonable and proportionate include the following:

(a) a small, not-for-profit community organisation takes steps to ensure that its staff are aware of the organisation's commitment to treating staff with dignity, fairness and respect, including developing and implementing a clear procedure for managing staff complaints;

(b) a large company undertakes an assessment of its compliance with this Act and, as a result of the assessment, the company develops a compliance strategy that includes training, regular monitoring, annual progress reporting, and continuous improvement of the strategy.

47D Commission may assess compliance etc.

(1) The Commission may, on its own initiative or on application by a person, inquire into the extent to which an employer or a person conducting a business or undertaking has complied with section 47C if the Commission is satisfied that:

(a) the subject of the inquiry:

(i) raises an issue that is serious in nature; and

(ii) relates to a class or group of persons; and

(b) there are reasonable grounds to suspect that one or more contraventions of section 47C have occurred; and

(c) the inquiry would advance the objectives of this Act.

(2) As soon as practicable after commencing the inquiry, the Commission must give the employer or person a written notice (a show cause notice):

(a) stating the grounds on which the Commission commenced the inquiry; and

(b) inviting the employer or person to give the Commission, within 28 days after the day the notice is given, a statement setting out the measures the employer or person has taken to comply with section 47C.

(3) The Commission may, in writing, extend the period of 28 days referred to in paragraph (2)(b) if:

(a) the employer or person requests the extension by giving notice in writing to the Commission before the end of that period; and

(b) the Commission is satisfied that the employer or person has a reasonable excuse for not providing a statement in response to the show cause notice within that period.

(4) If the Commission is satisfied as a result of the inquiry that the employer or person is not complying with section 47C, the Commission may do either or both of the following:

(a) accept a voluntary undertaking given by the employer or person under section 47E;

(b) give the employer or person a written notice under section 47G.

47E Enforceable voluntary undertakings

(1) If the Commission is satisfied as a result of an inquiry under section 47D that an employer or a person conducting a business or undertaking is not complying with section 47C, the Commission may accept any of the following undertakings:

(a) a written undertaking given by the employer or person that the employer or person will, in order to comply with section 47C, take specified action;

(b) a written undertaking given by the employer or person that the employer or person will, in order to comply with section 47C, refrain from taking specified action;

(c) a written undertaking given by the employer or person that the employer or person will take specified action directed towards ensuring that the employer or person does not contravene section 47C, or is unlikely to contravene section 47C, in the future.

(2) The undertaking must be expressed to be an undertaking under this section.

(3) The employer or person may withdraw or vary the undertaking at any time, but only with the written consent of the Commission.

(4) The consent of the Commission is not a legislative instrument.

(5) The Commission may, by written notice given to the employer or person, cancel the undertaking.

47F Enforcement of undertakings

(1) The Commission may apply to the Federal Court or the Federal Circuit Court for an order under subsection (2) if:

(a) an employer or a person conducting a business or undertaking has given an undertaking under section 47E; and

(b) the undertaking has not been withdrawn or cancelled; and

(c) the Commission considers that the employer or person has breached the undertaking.

(2) If the court concerned is satisfied that the employer or person has breached the undertaking, the court may make any or all of the following orders:

(a) an order directing the employer or person to comply with the undertaking;

(b) any order that the court considers appropriate directing the employer or person to compensate any other person who has suffered loss or damage as a result of the breach;

(c) any other order that the court considers appropriate.

47G Compliance notices

(1) If the Commission is satisfied as a result of an inquiry under section 47D that an employer or a person conducting a business or undertaking is not complying with section 47C, the Commission may give the employer or person a written notice (a compliance notice) under this section.

(2) However, the compliance notice must not be given unless:

(a) the Commission has given the employer or person a show cause notice under subsection 47D(2); and

(b) either:

(i) the employer or person has given a statement in response to the show cause notice; or

(ii) the 28 day period (or if extended under subsection 47D(3), that longer period) specified in the show cause notice has passed.

(3) The compliance notice must:

(a) set out the name of the employer or person; and

(b) set out the details of the employer's or person's non-compliance; and

(c) specify action that the employer or person must take in order to address the non-compliance; and

(d) specify a reasonable period within which the employer or person must take the specified action; and

(e) specify a reasonable period within which the employer or person must provide the Commission with evidence that the employer or person has taken the specified action.

(4) The Commission may apply to the Federal Court or the Federal Circuit Court for an order under subsection (5) if:

(a) the Commission has given an employer or a person conducting a business or undertaking a compliance notice; and

(b) the Commission considers that the employer or person has failed to comply with the notice.

(5) If the court concerned is satisfied that the employer or person has failed to comply with the notice, the court may make any or all of the following orders:

(a) an order directing the employer or person to comply with the notice;

(b) any order that the court considers appropriate directing the employer or person to compensate any other person who has suffered loss or damage as a result of the non-compliance;

(c) any other order that the court considers appropriate.

47H Powers of Commission in relation to inquiries

In conducting an inquiry under section 47D, Division 3 of Part II of the Australian Human Rights Commission Act 1958 applies as if the inquiry were an inquiry under that Division.

47J Delayed commencement of positive duty

Application of positive duty

(1) Section 47C does not apply to an employer, or to a person conducting a business or undertaking, before the enforcement day.

(2) The enforcement day is the day occurring 6 months after the commencement of this section.

Inquiries into non-compliance with positive duty

(3) The Commission must not commence an inquiry under section 47D before the enforcement day.

47K Commission must publish guidance material

(1) The Commission must develop guidance material on the operation of section 47C.

(2) In developing the guidance material, the Commission must consult with relevant stakeholders, including the Respect@Work Council and its associate members.

(3) The Commission must:

(a) make the guidance material readily accessible to the public as soon as practicable before the enforcement day (within the meaning of subsection 47J(2)); and

(b) ensure that the guidance material is kept up to date.

(3) Schedule 1, page 19 (before line 10), before item 78, insert:

77A After paragraph 48(1)(c)

Insert:

(ca) to exercise the powers conferred on it by Division 6 of Part II;

(4) Page 23 (after line 11), at the end of the Bill, add:

Schedule 2 — Amendments contingent on the Federal Circuit and Family Court of Australia Act 2021

Sex Discrimination Act 1984

1 Subsection 47F(1)

Omit "Federal Circuit Court", substitute "Federal Circuit and Family Court of Australia (Division 2)".

2 Subsection 47G(4)

Omit "Federal Circuit Court", substitute "Federal Circuit and Family Court of Australia (Division 2)".

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

[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.

Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I want to make a very brief contribution. I think these are particularly important amendments. I see Senator Cash nodding her head. I hope that indicates a change of heart and support for a positive duty. For people who don't understand the parliamentary process, the language we speak in here is sometimes entirely inaccessible, but for me this is the prevention clause, the prevention action, to make sure that what we know is happening in workplaces around this country is actually prevented by changing the cultural practices and the fulsome discussion that could happen if these amendments pass today. Again I urge the crossbenchers to sit with us and support these amendments, because, in the absence of support for this positive duty for the enactment of a prevention incentive for workplaces, we're going to continue to hear reports.

Today I rise to acknowledge previous evidence that I've put on the record here in the parliament. I'm particularly speaking for a young woman, pseudonymously known as AMP Annie, who documented for me—and I read her statement to this place—the sort of harassment that she suffered, needing to change her entire career, and the terrible mental health journey that she is on to this day, more than a decade after her harassment. She's like so many who gave evidence to the Sex Discrimination Commissioner, Commissioner Jenkins. It's reported on page 263 of the 900-page report, which is entirely accessible to the government and to the Attorney-General:

The misconduct was reported to senior management who did nothing … Reporting it to [a work health and safety regulator and an anti-discrimination agency] actually made it worse, causing more stress to me, culminating in my being forced out of my job under horrendous circumstances ... The outcome of all of this for me was catastrophic. I lost my job and my income and everything I had ever studied and worked for; my family was greatly affected; and my life has never recovered.

That could be prevented if this amendment goes through the parliament today. That is exactly the sort of thing we should be preventing. I wholly endorse the remarks of Senator McAllister and also Senator Waters.

Michaelia Cash (WA, Liberal Party, Deputy Leader of the Government in the Senate) Share this | Link to 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.

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

Minister, I've listened carefully to your answer. If I understand it, your argument about why you're not implementing positive duty today goes something like this: 'We don't need to, because really it's already a workplace health and safety obligation. And, even if we did do it, it would be very complicated and it would take a lot of time.' I want to make a few comments about both of those arguments because I don't think either of them stand up.

In Commissioner Jenkins's report she talks about her attempts and the commission's attempts to engage with the workplace health and safety regulators, and she says this:

The Commission sought to engage with all Commonwealth, state and territory WHS regulators within the WHS Framework, both individually and together as part of the Heads of the Workplace Safety Authorities.

And get this—this is a direct quote from the report:

The Heads of the Workplace Safety Authorities informed the Commission that it would not provide a joint a submission to the Inquiry, and that Heads of the Workplace Safety Authorities Members would provide any submissions they have through other government agencies in their jurisdiction or directly to the Commission.

What happened then? Were there any direct submissions to the commission? Just one, from WA. The only workplace health and safety regulator to make a submission was WorkSafe WA. And what did they say in their submission? They said:

In Western Australia, the EOC has specific legislation to address complaints of sexual harassment matters. As a safety regulator, WorkSafe is not sufficiently resourced and does not have the expertise to adequately address sexual harassment matters.

And the thing is that that is the experience of everyone who works at the coalface of representing women in workplaces who experience harassment.

Here's another quote from the report, from one of the submitters:

Australian WHS agencies have shown remarkable blindness or reluctance to acknowledge harassment as a workplace hazard that warrants their attention. Unless and until WHS agencies acknowledge and address this gap, this whole system that is explicitly designed to protect workers from harm will continue to fail to protect workers from sexual harassment.

It's a pretty clear warning, but there's no indication in this bill that it's a warning that's been heeded by the government.

So I do have some questions for you, Minister. Do you consider that the workplace health and safety arrangements at the moment are adequate and are being used appropriately to protect women in Australian workplaces from harassment? In your response to the report, you indicated that the government will assess whether the amendments would create further complexity, uncertainty or duplication in the overarching legal framework. How long do you expect this assessment to take? Will you be assessing whether such amendments would increase the level of protection for Australian women, or are you just assessing whether or not it's too much of a burden for employers? Who is undertaking this assessment, and when will it be made public?

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

I believe I've articulated the reasons that the government is not at this point in time implementing recommendation 17 of the Respect@Work report and in particular the work we are doing with the work health and safety ministers to strengthen those laws—the positive duty—and the understanding by both employers and regulators of their role under the positive duty in relation to the Work Health and Safety Act. Among the issues I've also raised and already discussed with the work health and safety ministers are both the Boland review and the Kate Jenkins review in terms of the psychosocial risks, such as sexual harassment.

What we've already agreed to do to date—and this is the work that we were progressing, to go to the question you raised about strengthening the work health and safety elements—is that, when I met with the work health and safety ministers and raised this with them, they agreed to progress amendments to the model work health and safety regulations to deal with how to identify the psychosocial risks, including sexual harassment associated with the psychological injury that can be suffered. So that is already something I've met with the work health and safety ministers on, and they have already agreed—in fact, they unanimously agreed—to commence progressing this work. Safe Work Australia has already commenced its preparation for the model code of practice being developed to cover psychosocial health, including sexual harassment. Also, I have indicated that, as part of the recent budget, one of the issues raised—and you've actually gone there yourself, in relation to the understanding of, in particular, work health and safety inspectors and employers/managers—is their actual understanding of what their role is under the work health and safety law.

In terms of what the federal government is able to do, Comcare will now deliver the national forums for Commonwealth, 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 ensure that they have that better understanding of what their obligations are and meet their obligations. That's the key thing: they need to be able to meet their obligations in relation to sexual harassment under the laws. At this point in time I have already commenced work in relation to that better understanding of the Work Health and Safety Act and the obligations under it that go directly to what Kate Jenkins referred to in her report.

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

Minister, in that answer you indicated that you're undertaking work to improve the workplace health and safety framework. I understand that. That is not what Kate Jenkins recommended. I think you understand that also. In your response to the Respect@Work report, you noted that a positive duty already exists. I think that's disputed by the evidence that was before the commissioner. But you did say that you would assess whether amendments would create further complexity, uncertainty or duplication. Am I to conclude from your answer that that assessment is completed—that you've got no intention at all of creating a positive duty, you are just kicking it off into the long grass, you've already made a decision that these issues are to be dealt with through workplace health and safety arrangements and you have no interest in progressing this at all? I think it would be better to be upfront about that.

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

No, that is not what I said.

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

When, then, will you be in a position to inform the public and the parliament about whether or not a positive duty will be legislated by your government?

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

As I've already stated, I've already outlined the work that we are doing in relation to the positive duty and the better understanding of it in relation to the Work Health and Safety Act. I've already met with the relevant ministers, and we are already progressing that work. We need to see today whether or not this bill passes and in what form this bill passes, and then we need to understand the impact of the amendments that we are making today. So this is an evolving process. As I've already stated, this is the government's first response to the Kate Jenkins report, and there is other work that is ongoing. I think I've been very upfront about that.

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

You say there's work ongoing. Do you have any sense of the timetable?

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

Again, we need to progress the work that we're already progressing in relation to the Work Health and Safety Act. We need to see if this bill passes today and in what form it passes. We need to understand then the impact of the amendments that we are making on both the Work Health and Safety Act and the Sex Discrimination Act. What we need to do is to ensure we get this right. If we create more confusion for employers or for regulators, we actually will not be doing justice to the Kate Jenkins report.

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

I appreciate the need for careful consideration of a big piece of policy reform. It would have been better, I think we can all agree, had such careful consideration commenced on 29 January 2020, which is, of course, when this was submitted to government. I'm asking you, though, for some sort of work plan—some sort of timetable. Your department, on your own account, and perhaps other departments in government are doing some work on workplace health and safety issues. There will be an internal work plan, there will be a process of consultation, there will be a series of internal milestones and there will be a completion date. This bill, I imagine, will pass—through this chamber at least—this week. All of the things that you say will have been concluded. You'll have a piece of legislation. Perhaps it will be amended; perhaps it will not. But you'll be in a position to make that assessment and continue that work. When will it be finished?

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

Again, I have addressed the question.

Louise Pratt (WA, Australian Labor Party, Shadow Assistant Minister for Manufacturing) Share this | Link to this | Hansard source

Minister Cash, I need to ask you again about the Work Health and Safety Act and its application to all workplaces, because it doesn't cover everyone currently. I know, for example, that mine sites in production in Queensland and WA aren't currently covered, and they have had some significant incidents of rape and sexual harassment take place. In the meantime, Minister McGurk from Western Australia submitted to our committee inquiry that she supported, very strongly, a positive duty as outlined by the Sex Discrimination Commissioner. It is not mutually exclusive to making progress with the state governments on improving the work health and safety regime. So, first of all, I want to ask you specifically about the application of the Work Health and Safety Act to accommodation existing in remote mine sites in Queensland, WA and other jurisdictions.

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

There will be a specific industry model code that they adhere to. We also then have the model laws, as you know, at a Commonwealth level, agreed with the various states and territories. It's up to the states and territories whether or not they themselves then implement the model laws.

Louise Pratt (WA, Australian Labor Party, Shadow Assistant Minister for Manufacturing) Share this | Link to this | Hansard source

Minister, as you've just highlighted, the model laws are not binding. Each state has to decide what it implements. In effect, there are parts of the country that sit entirely outside those model laws currently. There are industries that sit outside of those model laws, and, as a result, there is absolutely no overarching positive duty to prevent sexual harassment in Australian workplaces.

Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I draw the minister's attention to a comment made by Senator McAllister about the work capacity of the agencies that are supposed to be creating safe workplaces. Senator Pratt and I sit for many, many hours in estimates with Safe Work Australia, asking questions about what's going on. We hear particularly from culturally and linguistically diverse communities and their representatives, predominantly unions, who come forward to say that people from culturally and linguistically diverse backgrounds are not getting information, they are not being supported, they are often in insecure and vulnerable work and they are not getting the support that they need to understand what a safe workplace in Australia looks like. They are particularly subject to cultural intimidation when they shift from another context to Australia and they don't understand what's going on in their workplaces. In terms of financial support for the agencies to do the kind of work that you say is somewhere in a work plan that we need to trust, what increases to capacity can Australians be confident will occur to back up the claims that you're making here today with regard to this piece of legislation?

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

As I said in relation to the recent budget, Comcare will deliver national forums on sexual harassment for Commonwealth, state and territory work health and safety inspectors 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 under the laws.

In relation to the point that Senator Pratt was making, I'd also just say to Senator Pratt, just for her consideration: there is an existing vicarious liability provision in the Sex Discrimination Act, as she would know, 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. I have some more information on that that I can provide you with. Again going to what Senator Pratt was saying, the bill will also clarify that a complaint of victimisation under the Sex Discrimination Act can form the basis of a civil action, as well as a criminal action, in response to recommendation 21 of the Respect@Work report. I think that does assist Senator Pratt with the issue she was raising.

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

I just have one final question, and then, from the Labor perspective, I think we'll be ready to move on. I understand that Senator Hanson has given an indication that she'll be voting with the government on this amendment and indeed all of the amendments. Senator Hanson's contribution in the second reading speech was to indicate that she thought we were 'raising a nation of sooks'. She characterised women who experience violence and raise their voice about it as people who enjoy victimhood, and she said that this was an emerging criterion on a professional woman's CV—to indicate the status of victim that they are. On each of those points—'a nation of sooks', enjoyment of victimisation, and victimhood on CVs—will the minister repudiate Senator Hanson's views?

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

Senator Hanson's views are just that—Senator Hanson's views. I've clearly articulated the government's views, in relation to both the second reading speech and the summing up speech.

Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

The question is that amendments (1) to (4) on sheet 1369, moved together by leave, standing in the name of the Australian Greens and the opposition, be agreed to.

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

[by video link]. I might just clarify that in the spirit of collaboration, given that the Greens had amendments drafted to give effect to the full suite of the 55 recommendations of the Respect@Work report but the opposition subsequently had some drafted—I think this has been done procedurally—I'll flag that we will not be moving Greens amendments on sheets 1370, 1368 and 1372. It's not because we don't think those things anymore; it's just because the opposition will be moving amendments to very similar effect, either with tweaks that we support or just in the same form as we were going to anyway. So, for cleanness and consistency, in the eternal hope that the crossbench will support the amendments, we wanted to have a less confusing approach. I seek leave to move Greens amendments (1) to (4) on sheet 1371 revised together.

Leave granted.

I move Greens amendments (1) to (4) on sheet 1371 revised together:

(1) Clause 2, page 2 (table item 1), omit the table item, substitute:

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

3A Subsection 46PO(4) (notes 1 and 2)

Repeal the notes.

3B Section 46PSA

Repeal the section, substitute:

46PSA Costs only if proceedings instituted vexatiously etc.

(1) A party to proceedings in the Federal Court or the Federal Circuit Court under this Division may be ordered by the court concerned to pay costs incurred by another party to the proceedings only in accordance with subsection (2).

(2) The party may be ordered to pay the costs only if:

(a) the court concerned is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b) the court concerned is satisfied that the party's unreasonable act or omission caused the other party to incur the costs.

(3) Schedule 1, page 7 (after line 22), after item 28, insert:

Federal Circuit Court of Australia Act 1999

28A Subsection 79(1)

After "arising under", insert "Division 2 of Part IIB of the Australian Human Rights Commission Act 1986,".

28B Subsection 79(1) (note)

Before "See section 570", insert "See section 46PSA of the Australian Human Rights Commission Act 1986 for proceedings in relation to matters arising under Division 2 of Part IIB of that Act.".

Federal Court of Australia Act 1976

28C After paragraph 43(1)(a)

Insert:

(aa) section 46PSA of the Australian Human Rights Commission Act 1986; and

(4) Page 23 (after line 11), at the end of the Bill, add:

Schedule 2 — Amendments contingent on the Federal Circuit and Family Court of Australia Act 2021

Australian Human Rights Commission Act 1986

1 Subsection 46PSA(1)

Omit "Federal Circuit Court", substitute "Federal Circuit and Family Court of Australia (Division 2)".

Federal Circuit and Family Court of Australia Act 2021

2 Before subparagraph 214(1)(b)(i)

Insert:

(ia) Division 2 of Part IIB of the Australian Humssan Rights Commission Act 1986; or

3 Subsection 214(1) (after note 1)

Insert:

Note 1A: Subparagraph (b)(ia)—see section 46PSA of the Australian Human Rights Commission Act 1986 for proceedings in relation to matters arising under Division 2 of Part IIB of that Act.

These amendments pertain to costs and providing cost protections for complainants. As we all know, financial risks are a significant barrier to seeking justice, particularly for workers making complaints. I note that at the Senate inquiry into the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, rushed though it may have been, the Women's Legal Centre ACT said:

We're disappointed that the bill fails to provide a cost protection provision for complainants. 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 many women decide not to take this gamble.

The recommendation in the Respect@Work report to provide cost protection was justified; it was unequivocal and it was very sensible. The government's response was to say that they would review cost procedures in sexual harassment matters to ensure they're fit for purpose. But as the Human Rights Law Centre's Kieran Pender said:

WE DON'T NEED MORE REVIEWS, WE NEED TO MAKE SEXUAL HARASSMENT LITIGATION A VIABLE REMEDY FOR TARGETS OF HARASSMENT. The Respect@Work report offered a simple, technical measure that would materially improve the SDA & the Govt said: 'We'll think about it.

Well, they've had 17 months to think about it. They've thought for a long time about the positive duty and they are not going to do that either. Frankly, I wish they would just be honest and say that they don't actually care about fixing this issue; they just want to look like they are fixing some of it, because there's an election coming. But, sadly, honesty is too much to ask for in parliament, it seems.

Anyway, coming back to the substance of this particular amendment, the decision to make a complaint against someone in your workplace will always be difficult, and costs should not be a factor in that difficult decision. Our amendment would prevent costs being awarded, as a matter of course, but it would still leave it open for the commission to make costs orders if they are satisfied that the complaints were frivolous or vexatious. There seems to be a bit of a theme here by the likes of the Pauline Hanson One Nation party that women make this stuff up. Well, the reality is that so many more women who are sexually harassed in their workplace don't make complaints, precisely because they fear that they won't be believed and because they fear they will end up having to pay enormous costs. So they just suck it up, put up with it, or decide to move on and seek other work, and inevitably the harasser continues on to the next person or gets a promotion.

So that's why we have a whole bevy of amendments to this bill. This one in particular is about cost protection. It's an important amendment and I commend it to the chamber.

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

Labor is supporting this amendment. Indeed, as Senator Waters has indicated, this is also an area where Labor sought to have changes made to the bill. Commissioner Jenkins couldn't have been clearer, when she said in recommendation 25:

Amend the Australian Human Rights Commission Act to insert a cost protection provision consistent with section 570 of the Fair Work Act 2009 (Cth).

That's what the amendment does. This recommendation was endorsed by a number of submitters to the minister and to the inquiry, including the ACTU and the Law Council.

The government's response to the Respect@Work report says that this is agreed in principle. It's typical of the weasel words approach that was adopted in responding to the report. There's a total pretence that all 55 recommendations are accepted. The government accepted this in principle and then went on to explain all the ways in which it actually considers that it is not necessary. This government is so arrogant that it thinks it knows better—knows better than the people that Kate Jenkins spoke to when she conducted this piece of work, which everybody likes to describe as a landmark piece of work, and knows better than the people who submitted to the Senate inquiry that said that costs protection was absolutely critical, so that people weren't frightened of pursuing justice because of bankruptcy. Why this can't be pursued now, immediately, has never been made clear.

The recommendation and the amendment before us are based on an existing provision in the Fair Work Act. It's not complicated. The government could have drafted this amendment in an hour. But, instead, they are squirming away from it and kicking it into the long grass for a review at some future time. 'Maybe later' is not an answer. It is not an answer for the women who deserve access to justice, who deserve to have their claims heard and who deserve to do so free from fear that they will be financially persecuted and ruined if they dare to raise their voice and dare to seek the protection of the court.

I ask the government to think about this and to reconsider their position and to consider voting in support of this amendment today to ensure that recommendation 25, sitting there in the report, is implemented.

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

I'll be brief, in the interests of time. The government acknowledges that the courts already have a broad discretion to award costs under their own legislation. This could include, for example, ordering parties to bear their own costs or pay another party's costs. There are mixed views on whether the model recommended by the Respect@Work report and adopted by this proposed amendment based on section 570 of the Fair Work Act will actually address the issues identified with the current model. For example, as part of the consultation process for the Respect@Work report, Victoria Legal Aid outlined their view that this model will still provide a disincentive for applicants, given it would not enable them to recover their costs even if they're successful.

As outlined in the government's response, the government will review costs procedures in sexual harassment matters to ensure they're fit for purpose, taking into account the issues raised by the report. As I've already articulated, my department does already liaise with the courts in consideration of this matter and it will continue to do so. I have also written to the federal courts to commend the report for their consideration and in particular the impact different cost orders may have on victims of sexual harassment.

The CHAIR: The question is that amendments (1) to (4) on sheet 1371 moved by Senator Waters be agreed to.

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

[by video link] Amendment (1) on sheet 1367 amends the objectives of the Sex Discrimination Act to include substantive gender equality. Recommendation 16 of the Jenkins report says that the objects of the act should be amended 'to achieve substantive equality between women and men'. But what the government did when they allegedly implemented this recommendation was change the wording, and they massively watered it down. The government's version in the current bill says that the new objective should be to achieve equality of opportunity between men and women 'so far as practicable'. So it's watered down not just on one level but on two: it's no longer substantive equality—it's just equality of opportunity—and it's only so far as is practicable. What an absolute crock! This government might as well have not bothered to have this amendment at all because they've watered down the recommendation so much that it's essentially meaningless. But I suppose that's what we've come to expect from this government.

Many submitters to the inquiry, including the Human Rights Commission, were concerned that the government's drafting does not reflect the intent of Respect@Work recommendation 16. The Law Council recommended deleting the qualification of 'so far as practicable'—and I strongly support that. The department's explanation for why they changed the wording was that it was beyond the scope of the Sex Discrimination Act to fix structural inequality. Frankly, it leaves me speechless, and like so much about this bill it entirely misses the point.

Objectives don't create positive duties to deliver on aspirational goals but they do require decision-makers to consider those objects when they're exercising discretion. When making decisions under the act they need to make sure that the decision will further the objects of that act, or at least not hinder the achievement of that goal. But this government just can't come at saying the words 'achieve substantive equality between men and women'. Maybe they just don't think that that's what society should be aspiring to do. They just want equality of opportunity 'so far as is practicable'. Honestly, he just typifies this government. The sexism is so ingrained in this government—this 1950s Morrison government—that it can't even cope with the concept of substantive equality.

Structural gender equality is not simply about denial of opportunity; it reflects how discrimination, stereotypes and other factors can affect people's ability and capacity to take up opportunities. A goal of substantive equality recognises that opportunities might need to be offered differently in some circumstances in order to overcome structural barriers and to achieve substantive equality. But I think this government just doesn't understand structural inequality. As far as they're concerned, it's all up to the individual and if you work hard enough you can overcome anything. They are so imbued with privilege that they can't even fathom the concept of structural inequality, and they've made that abundantly clear in the drafting of this objects clause.

I now move Greens amendment (1) on sheet 1367:

(1) Schedule 1, item 31, page 8 (lines 6 and 7), omit "to achieve, so far as practicable, equality of opportunity between men and women", substitute "to achieve substantive gender equality".

This is to restore the wording that the Human Rights Commission initially proposed and that this government has sought to water down on not one but two terms. Their version is an absolute crock, so I move the Greens amendment on sheet 1367 to fix up the wording so that it does what the Human Rights Commission report recommended, which is the whole point of having this bill that the government keeps trying to wreck.

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

Labor supports this amendment, and indeed it is one of the many questions where Labor had also drafted amendments. We agree to proceed with the Greens moving it on this occasion.

Some months ago I listened with interest to what most people described as a train crash of an interview, a very long interview with the Prime Minister on A Current Affair where he explained his shock and surprise at learning that Australian women were subject to discrimination and, indeed, some very frustrating experiences at work. That was galling enough. But the thing I observed in this extended interview that the Prime Minister offered to A Current Affair was that the Prime Minister was willing to say the word 'respect' some 14 times—14 times!—but, in an interview that was ostensibly about the interests of Australian women. he could not bring himself to mention the word 'equality' once, not once. I have a real question about the Prime Minister's commitment to equality for Australian women, because it rarely features in anything that he says. He is comfortable with respect, and I can see why that might be. It's possible to be perfectly polite and respectful to a person that you do not consider your equal at all. If you are a powerful man, indeed, it is quite possible to do so. Ask Julia Banks how the Prime Minister treated her. I am not surprised that this government, which has had eight long years to think about what it might do for women, baulks at the possibility of inserting an object of true equality between men and women into one of its acts.

The recommendation in the Respect@Work report, which, again, the government pretends to accept, is very clear. It says:

Amend the Sex Discrimination Act to ensure:

a. the objects include 'to achieve substantive equality between women and men'

It's pretty straightforward. What do we get instead? This mealy-mouthed thing: 'to achieve, so far as practicable, equality of opportunity between men and women'. We used to tell a joke about a moderate's chant at a rally: 'What we want?' 'Gradual reform in due course.'

This couldn't be sillier. This couldn't be a sillier amendment. We'll go for equality—but only equality of opportunity—as far as is practicable. What does that mean? That is actually my question to the minister: Why do we need to insert that qualification? Is it to reflect the view put by the Prime Minister some time ago on International Women's Day—that he wants women to rise but not if it's at the expense of men? Is that what this qualification actually means? Why is it in here? Why is it necessary to insert into a piece of legislation something as mealy-mouthed as this? As Senator Waters has explained, the objects of the act don't require a positive duty to absolutely obtain those objects in every decision; they are merely a guiding factor in interpreting what the provisions of the act require of the decision-maker.

So, Minister, two things: why is the qualification 'so far as practicable' necessary in this context, and what does the government consider to be the difference between substantive equality and equality of opportunity?

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

The term 'equality of opportunity' was used because it better aligns with the existing approach of Australia's antidiscrimination law frameworks. In particular, it means that every opportunity that is afforded has to be afforded on an equal basis. Substantive equality, on the other hand, requires affirmative actions by workplaces and is actually a departure from the complaints based model that currently exists. The drafting is comparable to existing objects clauses in other antidiscrimination legislation.

The CHAIR: The question is that amendment (1) on sheet 1367, moved by Senator Waters, be agreed to.

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

by leave—I move amendments (1) to (6) on sheet 1405 together:

(1) Schedule 1, page 3 (after line 18), after item 3 (after the heading specifying Fair Work Act 2009), insert:

3A Paragraph 3(e)

Repeal the paragraph, substitute:

(e) enabling fairness, gender equity, and representation at work and the prevention of discrimination, sexual harassment and harassment on the ground of sex by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment, discrimination, sexual harassment and harassment on the ground of sex, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and

3B Paragraph 6(2)(c)

Repeal the paragraph, substitute:

(c) provides other protections, including protection from discrimination, sexual harassment and harassment on the ground of sex.

(2) 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).

(3) Schedule 1, page 4 (after line 6), after item 6, insert:

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

Insert:

(aa) in section 351A—see subsection 351A(4); and

(4) Schedule 1, page 4 (after line 21), after item 9, insert:

9A Section 334 (paragraph beginning "Division 5")

Repeal the paragraph, substitute:

Division 5 provides other protections, including protection from discrimination, sexual harassment and harassment on the ground of sex.

9B Paragraphs 336(1)(c) and (d)

Repeal the paragraphs, substitute:

(c) to provide protection from workplace discrimination, sexual harassment and harassment on the ground of sex;

(d) to provide effective relief for persons who have been discriminated against, victimised, sexually harassed, harassed on the ground of sex or otherwise adversely affected as a result of contraventions of this Part;

9C After section 351

Insert:

351A Sexual harassment and harassment on the ground of sex

(1) A person must not sexually harass, or harass on the ground of sex, a person (the second person) who is:

(a) a worker or prospective worker; or

(b) a person conducting a business or undertaking;

if the harassment occurs any circumstances connected with the second person being:

(c) a worker or prospective worker; or

(d) a person conducting a business or undertaking.

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

(2) A person conducting a business or undertaking must take all reasonable steps to prevent a worker or prospective worker (the second person) in the business or undertaking being sexually harassed or harassed on the ground of sex in any circumstances connected with the second person being a worker or prospective worker in the business or undertaking.

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

(3) In this section:

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.

(5) Schedule 1, page 4 (after line 27), after item 10, insert:

10A Subsection 539(2) (cell at table item 11, column 1)

After "351(1)", insert:

(6) Schedule 1, page 4 (after line 31), after item 12, insert:

12A Paragraph 578(c)

After "eliminate", insert "gender inequity, sexual harassment, harassment on the ground of sex, and".

These amendments implement an important—but, of course, again ignored—recommendation of the Respect@Work report. They create in the Fair Work Act the expressed prohibition of sexual harassment. For clarity, this is the act that governs the workplaces of Australians. It strikes me extremely strange—but I'm not surprised—that the government has failed to accept or implement this very important recommendation. The act confers functions and powers on the commission, including the power to conciliate sexual harassment complaints. The ACTU highlighted in their submission to the Senate inquiry that sexual harassment is undeniably a workplace issue that must be expressly prohibited and addressed through our workplace laws.

The Australian Human Rights Commission statistics show that in 2018-19 the majority—almost 70 per cent—of complaints made under the Sex Discrimination Act related to employment and almost a quarter of those related to sexual harassment specifically. It's happening in Australian workplaces, but the Fair Work Act does not expressly prohibit sexual harassment.

There's an argument that it can be indirectly addressed through a number of provisions, including the general protections against adverse action on the basis of a workplace right, general protections against adverse action on the basis of sex, the antibullying jurisdiction, unfair dismissal and unlawful termination on the ground of sex. But the Respect@Work report stated that the absence of any express prohibition under the main legislation that governs workplaces created 'ambiguities and gaps in how sexual harassment is handled under the Fair Work Act'. It's a pretty conclusive conclusion. The commissioner went on to say:

It is clear from the many submissions and consultations recommending reform that the current framework under Part 3-1 of the Fair Work Act does not provide the clarity and coverage needed for victims of sexual harassment in the workplace.

The lack of an express prohibition against sexual harassment within the Fair Work Act means that, in practice, sexual harassment matters are raised using provisions under Part 3-1 of the Fair Work Act that were not designed to address sexual harassment.

The ACTU has said a worker may have a claim under section 340 of the Fair Work Act if they are victimised for making a complaint about sexual harassment, but there is no right of action for the sexual harassment itself. It's ludicrous. But the government's weak response—and it is characteristically weak—to this very sensible and clear recommendation was only to agree to it in principle. The government stated:

The Government will review the Fair Work system once the amendments proposed under Recommendation 16 have been implemented and their impact assessed.

Well, unfortunately for this weak argument, which fails on almost every measure, recommendation 16 isn't relevant to this recommendation. Recommendation 16 relates to proposed amendments to the Sex Discrimination Act, which, in any case, the government only agreed to implement part of and which have no bearing whatsoever on whether sexual harassment is expressly prohibited in the Fair Work Act.

The Kate Jenkins report was all about looking at the big systems which legally govern sexual harassment and are presently failing to prevent it. She made a comprehensive recommendation about how to address that, but this is another part of her recommendations that is being ignored. It could be argued that by adopting a measure that could help stop sexual harassment in the workplace after it has occurred, the 'stop sexual harassment' orders, the government has failed to implement a regulatory change that could help prevent sexual harassment in the workplace from occurring in the first place. The introduction to the government's response explicitly states that prevention must be our focus. That's why we've moved these amendments, to ensure that our workplace laws explicitly state that sexual harassment and sex based harassment are prohibited, as all sensible people would agree they should be.

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

[by video link] I'll just rise briefly to note that the Greens will be supporting the amendments on sheet 1405. Once again, it's farcical of the government to claim that they are supporting recommendations in the Jenkins report in principle and then ask for more time when they've had 17 months. They should just be honest by saying that they don't want to fix this problem and that they don't want to have a prohibition against sexual harassment because probably many of the people in the ministry would be in trouble.

The CHAIR: The question is that amendments (1) to (6) on sheet 1405, as moved by Senator McAllister, be agreed to.

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

by leave—I move amendments (1) and (2) on sheet 1382 together:

(1) Clause 2, page 2 (table item 1), omit the table item, substitute:

(2) Page 23 (after line 11), at the end of the Bill, add:

Schedule 2 — Ten days Paid Family and Domestic Violence Leave

Fair Work Act 2009

1 Section 12

Insert:

paid family and domestic violence leave means paid family and domestic violence leave to which a national system employee is entitled under section 106A.

2 Section 12 (definition of unpaid family and domestic violence leave )

Repeal the definition.

3 Subsection 17(2) (note)

Omit "unpaid family and domestic violence leave", substitute "paid family and domestic violence leave".

4 Paragraph 61(2)(e)

Omit "unpaid family and domestic violence leave", substitute "paid family and domestic violence leave".

5 Division 7 of Part 2-2 (heading)

Omit "unpaid", substitute "paid".

6 Subdivision CA of Division 7 of Part 2-2 (heading)

Omit "Unpaid", substitute "Paid".

7 Section 106A (heading)

Omit "unpaid", substitute "paid".

8 Subsection 106A(1)

Omit "5 days of unpaid family and domestic violence leave", substitute "10 days of paid family and domestic violence leave".

9 Subsection 106A(2)

Omit "Unpaid", substitute "Paid".

10 Subsection 106A(4)

Omit "unpaid", substitute "paid".

11 Paragraph 106A(4)(a)

Omit "5 day period", substitute "10 day period".

12 Subsection 106A(5)

Omit "more than 5 days of unpaid leave", substitute "paid or unpaid leave in addition to the entitlement in subsection (1)".

13 At the end of section 106A

Add:

(6) If an employee takes a period of paid family and domestic violence leave, the employer must pay the employee:

(a) for an employee other than a casual employee—at an employee's ordinary hourly rate, including applicable shift loadings and penalties.; or

(b) for a casual employee—at the rate of pay that the employer would be required to pay the employee, for the hours of work in the period for which the employee was rostered, including casual loading and any applicable shift loadings and penalties.

14 Section 106B (heading)

Omit "unpaid", substitute "paid".

15 Subsection 106B(1)

Omit "unpaid", substitute "paid".

16 Subsection 106B(1) (note 1)

Repeal the note, substitute:

Note 1: Examples of actions, by an employee who is experiencing family and domestic violence, that could be covered by paragraph (b) include (but are not limited to) attending legal proceedings, counselling, appointments with medical, financial or legal professionals; and/or relocation or making other safety arrangements.

17 Subsection 106B(2)

Omit all of the words before paragraph (a), substitute:

(2) Family anddomestic violence is violent, threatening or other abusive behaviour by a close relative of an employee or a member of an employee's household that:

18 Subsection 106C(1)

Repeal the subsection, substitute:

(1) Employers must take steps to ensure information concerning any notice or evidence an employee has given under section 107 of the employee taking leave under this Subdivision is treated confidentially.

Note: Information concerning an employee's experience of family and domestic violence is sensitive and if mishandled can have adverse consequences for the employee. Employers should consult with such employees regarding the handling of this information.

19 Section 106D (heading)

Omit "unpaid", substitute "paid".

20 Paragraph 107(3)(d)

Omit "unpaid", substitute "paid".

21 At the end of Part 11 of Schedule 1

Add:

52 Entitlement to paid family and domestic violence leave

(1) Subdivision CA of Division 7 of Part 2-2, as amended by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021, applies in relation to an employee whose employment started before the commencement of that Act as if the period:

(a) starting on that commencement; and

(b) ending on the first day after that commencement that is an anniversary of the day the employment started;

were a 12 month period.

(2) For the purposes of this clause, if an employee is employed by a particular employer:

(a) as a casual employee; or

(b) for a specified period of time, for a specified task or for the duration of a specified season;

the start of the employee's employment is taken to be the start of the employee's first employment with that employer

These provisions reflect a longstanding Labor position that paid domestic and family violence leave would make an enormous difference in the lives of Australian women. It's on that basis that I commend these amendments to the Senate.

Progress reported.