Sex Discrimination and Fair Work...: 1 Sep 2021: Senate debates (OpenAustralia.org)

Senate debates

Wednesday, 1 September 2021

Bills

Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021; In Committee

5:34 pm

Carol Brown (Tasmania, Australian Labor Party, Shadow Assistant Minister for Infrastructure and Regional Tourism) Share this | Link to this | Hansard source

The committee is considering the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, as amended, and amendments (1) and (2) on sheet 1382, moved by Senator McAllister. The question is that the amendments be agreed to.

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

Earlier in the debate I moved these amendments and I indicated that the amendment proposed, amendment (2), replicates the private senator's bill that I earlier introduced in this chamber and seeks to establish 10 days paid domestic violence leave as part of the National Employment Standards. Essentially, what this amendment would do is improve the existing entitlement in the National Employment Standards from five days unpaid domestic and family violence leave to 10 days paid domestic and family violence leave, and that is a much-needed reform.

Businesses tell us that there is a very significant impact of family and domestic violence on their employees. In 2016, the National Retail Association estimated that in a single year almost 45,000 women working in the retail industry experienced some form of family and domestic violence. The Australian Council of Trade Unions estimate that it costs $18,000 and 141 hours to leave a violent relationship. Many working women resign or are terminated from their employment because they need to take the time to deal with issues that arise as a consequence of domestic abuse: finding housing, attending a court or a doctor's appointment, and ensuring that children have the support that they need. It puts women fleeing violence in a precarious position. Many face the unacceptable choice of fleeing to safety or keeping their job. No-one should be forced to make that decision.

Given the prevalence of family and domestic violence in Australia and its impact on employment and the economy, there is a need to support women to flee violence and keep themselves safe. The current arrangements are simply inadequate. The experience of businesses who have already introduced paid leave is that, on average, women do not take the entire 10 days that are available to them but instead use part of that entitlement modestly, carefully to make the changes that they need.

Australian women want to keep working. They value their working lives. This amendment seeks to provide the choices—the real choices—that would deliver real equality for Australian women who are presently confronted by violence in their households.

5:38 pm

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

The government will be opposing this amendment. The primary purpose of this bill is to implement the government's commitments in response to recommendations made by the Respect@Work report. I would also observe that in 2018 an entitlement of five days unpaid family and domestic violence leave in a 12-month period was inserted into the National Employment Standards in the Fair Work Act. This followed the Fair Work Commission's decision to provide five days of unpaid family and domestic violence leave for employees covered by a modern award. The Fair Work Commission itself is currently reviewing the family and domestic violence leave clause in modern awards, and further consideration of the issue of paid leave by this government will be appropriately informed by the commission's consideration of the issue.

I would also note that employers of course are able to write entitlements that suit their own workplaces.

5:39 pm

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

[by video link] I rise to speak very briefly on the amendments before the chamber, amendments (1) and (2) on sheet 1382, which would give workers 10 days of paid family and domestic violence leave. This has been a longstanding Greens policy, and we fully support these amendments. We had a similar amendment drafted ourselves but, as I referenced earlier today, we have come to an arrangement about who moves what to try to make sure that the chamber is progressing smoothly. I just want to place on record that we think this is eminently sensible and, while it goes beyond the recommendations of the Respect@Work report, so too do the miscarriage leave provisions in the bill, which we also support. The point is that, if you are opening up the possibility of unrelated amendments, we think this amendment should also be moved.

I sat on the committee inquiry into the government's bill regarding five days of unpaid family and domestic violence leave, and the evidence was abundantly clear that workers need paid leave, that five days of unpaid leave is as good as nothing and that, in fact, it costs employers to have the relationship with their employee severed unnecessarily. So in fact it is a saving to business. So you'd think that the government would get right behind it. Most importantly, it is the right thing to do—and many employers, of course, want to do the right thing by their employees. So, to cut a long story short, we strongly support these amendments, and we urge the government to finally put its money where its mouth is and back the call for 10 days of paid family and domestic violence leave for all workers.

The CHAIR: The question is that amendments (1) and (2) on sheet 1382, as moved by Senator McAllister, be agreed to.

5:47 pm

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

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

[Sheet 1381]

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

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

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

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

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

Insert:

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

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

9D After Part 3-1 of Chapter 3

Insert:

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

Division 1 — Introduction

378A Guide to this Part

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

378B Interpretation

Definitions

(1) For the purposes of this Part:

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

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

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

Former and prospective workers

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

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

(b) a person who may become a worker.

378C Object of this Part

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) fairness between the parties concerned;

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

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

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

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

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

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

Insert:

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

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

Insert:

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

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

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

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

(b) the complaint has not:

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

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

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

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

(b) the notification has not:

(i) been dealt with by the FWC; or

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

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

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

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

(b) the application has not:

(i) been dealt with by the FWC; or

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

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

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

(b) the notification has not:

(i) been dealt with by the FWC; or

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

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

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

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

[Sheet 1385]

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

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

Repeal the definition, substitute:

class member:

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

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

1B Subsection 3(1)

Insert:

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

representative party means a person who makes a representative application.

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

3A Subsection 46PO(1)

Repeal the subsection, substitute:

(1) If:

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

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

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

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

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

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

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

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

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

(i) on their own behalf; or

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

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

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

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

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

3C After subsection 46PO(4)

Insert:

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

3D At the end of section 46PO

Add:

(9) In this section:

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

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

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

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

3E After section 46PO

Insert:

46POA Additional rules applying to representative applications

Class member may not make separate application

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

Consent required

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

Requirements for representative applications

(3) A representative application must:

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

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

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

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

Right of class member to withdraw

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

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

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

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

[Sheet 1399]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

51 Orders to stop harassment on the ground of sex

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

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

The Respect@Work report includes recommendation 23:

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

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

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

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

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

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

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

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

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

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

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

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

5:56 pm

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

[by video link] I'll make some very brief remarks, but I'll state at the outset that the Greens will be supporting each of these amendments that are being moved together tonight.

I'll start off with some brief comments on sheet 1385. These amendments would enable representative actions to be taken. These are very important amendments—again, the Greens had amendments to the same effect drafted, but these are the ones that have been moved. Addressing sexual harassment issues at a systemic level would help relieve the burden on individual workers to pursue complaints. Particularly where an employer is a repeat harasser, representative action on behalf of two or more employees can encourage cultural change. It should not be left up to workers to individually pursue complaints and potential court action as the only remedy available to them. Representative actions must be allowed to be taken. That's exactly what Commissioner Jenkins recommended, for the very reason that it is an enormous burden on the shoulders of workers, particularly young, junior, female workers, who find it unthinkable—and that's why we see so few complaints. We could fix that with representative action, so that unions or other representative bodies could—with the full consent, of course, of the complainants—take the action on their behalf. That would be a delivery of justice, and any opposition to this amendment is a denial of access to justice. For many workers, they want the harassment to stop. They don't want to be named as the victim. Importantly, these amendments require the consent of every person covered by a representative action. We are in strong support of the amendments on sheet 1385.

Moving to sheet 1381, these amendments propose a dispute resolution process which would make it simpler for complaints to be dealt with under the Fair Work Act. Workers who are sexually harassed need access to fair, effective and efficient complaints mechanisms. Not only is there a need for a clear prohibition on sexual harassment and sex-based harassment, as recommended by Commissioner Jenkins in the Respect@\Work report, but there's also a need for a complaints process in the Fair Work Act which is available to all workers who seek a remedy through the Fair Work Commission for current or past sexual harassment. I understand these amendments were drafted based on the process for dealing with unfair dismissal claims. Essentially, they propose a simplified process to minimise trauma and to expedite outcomes for all parties. We will be supporting the amendments on sheet 1381, and I would urge the government to do the same—although it's not going to happen, sadly.

The final amendments are on sheet 1399, which, again, we support, and which propose stopping sex-based harassment orders. As folk understand, the bill provides some good enforcement options to allow workers to apply to the Fair Work Commission for stop-harassment orders when they're subject to sexual harassment. But the bill doesn't provide the same option for workers affected by sex-based harassment, as it should. These are technical amendments, as Senator McAllister described them. I hope it is just an oversight by government. I can only form the conclusion that the government in fact does not really want to be dealing with issues of sexual harassment in the workplace. Otherwise, why would it have bowled up a bill that so roundly ignores many of the key recommendations in the Respect@Work report?

We here collaboratively are giving the government the chance to legislate the full suite of 55 recommendations. These amendments cover off on all the recommendations that the government has ignored. It's incredibly disheartening, but perhaps not surprising, to see the government vote against them at every turn. It beggars belief that you would ask for such a report to be written and then draft a bill that bears so little resemblance to it and still try to claim that you're addressing the problem. Nobody believes you. Do better.

6:00 pm

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

In terms of these amendments, I actually addressed the government's view of them in the summing-up speech. In the interests of time, I won't make any further comments.

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

The question is that opposition amendments (1) to (6) on sheet 1381, opposition amendments (1) and (2) on sheet 1385 and opposition amendments (1) to (25) on sheet 1399, be agreed to.

6:07 pm

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 1432, together:

(1) Schedule 1, item 60, page 14 (after line 25), after subsection 28AA(1), insert:

(1A) For the purposes of this Act, a person also harasses another person (the person harassed) on the ground of sex if:

(a) the person engages in unwanted conduct related to sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities; and

(b) the person does so in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the conduct would:

(i) violate the dignity of the person harassed; or

(ii) create or facilitate an intimidating, hostile, degrading, humiliating or offensive environment for the person harassed.

(2) Schedule 1, page 14 (line 26), omit "subsection (1)", substitute "subsections (1) and (1A)".

The Respect@Work inquiry heard that the existence of a sexually-permeated, hostile environment was not routinely recognised by individuals or by their organisations as sexual harassment. The Human Rights Commission was of the view that this amendment would provide clarity and certainty in the law, which, as we are frequently reminded by the Law Council, is in fact essential for the administration of justice. It would assist in setting clear boundaries in the workplace for what is and is not acceptable conduct. On that basis, again, Commissioner Jenkins recommended this change that we are now proposing, as recommendation 16c.

Again and again and again, senators are rising in this chamber to urge the implementation of the recommendations of the Respect@Work report. At the risk of tedious repetition, I'll make this point again: the government said all of the 55 recommendations are supported, and yet so few of them appear in the legislation before us. On Monday, when Prime Minister Morrison stands up at the National Summit on Women's Safety and makes his big speech about how terrific it is that this legislation has made it through the parliament, I hope that he fronts up and is honest with Australian women. I hope he tells them that there are just a handful of the 55 recommendations that have actually been implemented as part of this legislation, and that, in fact, so many of the recommendations that they purport to accept are merely noted and then pushed to one side or kicked into the long grass for some interminable process for which there is no end point and no prospect of a meaningful conclusion. All we can conclude, witnessing the behaviour of the government in this chamber, is that they are not in any way interested in providing a meaningful legislative response to the issues that were identified by Commissioner Jenkins and which are so clearly laid out in this report.

It's clear that the change that I am now proposing in the final amendments to be moved by Labor does not have the support of the majority of the Senate at this time. Nonetheless, we are moving these amendment to ensure that this important recommendation of the Sex Discrimination Commissioner's landmark report is not ignored in this debate. Unfortunately, it has been ignored by the Morrison government. The Morrison government said that it agreed with recommendation 16(c) of the Respect@Work report in principle, but it has ignored it in practice.

6:10 pm

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

[by video link] I will make a brief contribution on opposition amendments (1) and (2) on sheet 1432. We again support these amendments, which in fact address recommendation 16(c) of the Respect@Work report—that same report that the government claimed that they would accept all the recommendations of. And yet they seem to have put forward a bill that resembles Swiss cheese, but, with so many holes in it, it is more hole than cheese. We support recommendation 16(c) and we support these amendments, which would create a prohibition on creating or facilitating a hostile working environment.

In many ways, this creation of a positive duty to maintain a safe workplace could have obviated the need for this prohibition on creating a hostile workplace. But, since the government would not come at a positive duty to create a safe workspace, we're trying again, with this prohibition on creating a hostile working environment. But, sadly, it seems that once again the government will not be actually taking these recommendations seriously and will try to claim credit for doing a job that, in fact, they have barely scratched the surface of.

But, unlike Senator McAllister, I'm confident that they won't fool anyone at the Women's Safety Summit next Monday. I don't think anyone will buy any of the words that come out of the Prime Minister's mouth when he is talking about women's safety. I'm not sure whether he'll have to check with his wife before he makes that speech. She seems to be the moral barometer when it comes to things pertaining to women. And, of course, I'm sure he won't mention the fact that the front-line services that deal with domestic and family violence are still drastically underfunded. Even after the small increase that was given in the budget, it is still one-quarter of the funding that is needed to meet demand.

So it's yet more spin from this government. It's either spin or complete silence. We got complete silence on Equal Pay Day from the Prime Minister and from the relevant minister, and now we'll get spin overdrive when it comes to what they are doing for women—but, I'm sorry, you're not fooling anybody.

6:12 pm

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

Just very briefly: the Respect@Work report suggested that a new prohibition should be introduced in the Sex Discrimination Act on creating or facilitating a hostile work environment on the basis of sex. The government does not believe this is necessary given that the model work health and safety laws already require that workers are protected from health and safety risks, including psychosocial risks, that can result from a hostile work environment. There is currently a specific obligation under work health and safety laws to provide a safe work environment. Intimidating, hostile, humiliating or offensive environments would be considered a risk under existing work health and safety laws regardless of sex. Inserting an additional prohibition, including as drafted, may be duplicative and actually increase confusion for duty holders and workers.

The CHAIR: The question is that opposition amendments (1) and (2) on sheet 1432, moved by leave, be agreed to.

Question negatived.

6:14 pm

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—I ask that our support for those amendments be noted in Hansard.

The CHAIR: Noted.

Anne Urquhart (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

by leave—Given they were our amendments, could you please note that we also supported them.

The CHAIR: We will note that as well.

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

by leave—I move Greens amendments (1) to (3) on sheet 1433:

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

77A After paragraph 48(1 ) ( f)

Insert:

(fa) to inquire into any matter that may relate to systemic acts, omissions or practices that are unlawful under this Act; and

(2) Schedule 1, page 20 (after line 8), after item 83, insert:

83A After section 48

Insert:

49 Performance of functions relating to systemic acts, omissions or practices that are unlawful under this Act

(1) Subject to subsection (2), the Commission shall perform the function referred to in paragraph 48(1) (fa) when:

(a) the Commission is requested to do so by the Minister; or

(b) it appears to the Commission to be desirable to do so.

(2) The Commission may decide not to inquire into a matter, or, if the Commission has commenced to inquire into a matter, may decide not to continue to inquire into the matter, if:

(a) the Commission is satisfied that the matter does not relate to systemic acts, omissions or practices that are unlawful under this Act; or

(b) the Commission is satisfied, having regard to all the circumstances, that an inquiry, or the continuation of an inquiry, into the matter is not warranted.

(3) The function of the Commission under paragraph 48(1) (fa) shall be performed by the President, and a reference in this Act or the Australian Human Rights Commission Act 1986 to the Commission or to a member of the Commission shall, in relation to the performance of that function, be read as a reference to the President.

50 Reports to the Minister

If:

(a) the Commission has inquired into a matter that may relate to systemic acts, omissions or practices that are unlawful under this Act; and

(b) the Commission is of the opinion that the matter relates to systemic acts, omissions or practices that are unlawful under this Act;

the Commission may report to the Minister in relation to the inquiry.

(3) Schedule 1, page 20 (after line 12), after item 85, insert:

85A After subsection 104(1)

Insert:

(1A) Subsection (1) does not allow the President to delegate any of the President's powers relating to the function of the Commission under paragraph 48(1) (fa) that is to be performed by the President because of subsection 49(4) to a member of the Commission other than:

(a) the Commissioner; or

(b) the Human Rights Commissioner.

85B Subsection 104(2)

Omit "The", substitute "Subject to subsection (3), the".

85C At the end of section 104

Add:

(3) If the President delegates any of the President's powers relating to the function of the Commission under paragraph 48(1) (fa) to the Commissioner, subsection (2) does not apply in relation to those powers.

I'll just speak briefly to that. Addressing sexual harassment issues at the systemic level rather than the individual level will help relieve the burden on individual workers to pursue complaints and to encourage cultural change. This provision, which would allow the Human Rights Commission president, or a delegate of the president if they so delegate, to inquire into matters that relate to systemic acts, omissions or practices, really goes to driving that cultural change and to giving the commission the power to do so of their own volition rather than waiting for an instruction—which would never come—from a minister. It certainly wouldn't come from a minister in this Morrison government. This provision would complement the, sadly, failed amendment to allow representative actions by unions or other representative bodies, again relieving the burden on individuals to avoid harassment or to confront their boss or to run the gauntlet of the legal system on their own. Examining systemic behaviour, practices, procedures and cultures of workplaces can make it safer for everyone, which is exactly why the government should vote for this amendment, but don't hold your breath.

6:16 pm

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

Labor supports this amendment on the same basis on which we've moved and supported so many others: that it implements a recommendation of the Respect@Work report—in this case recommendation 19. I don't intend to provide any further remarks. I think that the material set out in the report explains the importance of the recommendation, and it ought to be supported.

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

This amendment seeks to respond to recommendation 19 of the Respect@Workreport: to provide the AHRC with a broad function to inquire into any matter that may relate to systemic or unlawful discrimination under any of the federal antidiscrimination laws either under its own initiative or at the request of the minister. This amendment alone would not fully implement recommendation 19, given that it's confined to unlawful acts under the Sex Discrimination Act rather than systemic unlawful discrimination under all federal antidiscrimination acts. This proposal must be considered together with a proposal to change the core functions of the AHRC with a positive duty, accompanied by compliance and enforcement powers. Given the lateness of the hour, I will leave my remarks there.

Question negatived.

6:17 pm

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—Could you record our support for our amendment, please?

The CHAIR: Certainly. Senator Urquhart, the same?

Anne Urquhart (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

by leave—Could you record that Labor supported that amendment as well.

The CHAIR: Sure.

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

[by video link] I move Greens amendment (1) on sheet 1434:

(1) Schedule 1, item 60, page 14 (line 19), omit "seriously".

While we welcome the new offence of sex based harassment, the bill sets the threshold for establishing sex based harassment as unwelcome conduct that is 'seriously demeaning'. That's a very high threshold. Many submitters, including the commission themselves, said that that was an inappropriately high bar that would prevent women from coming forward. The explanatory memorandum provides that the threshold avoids capturing mild forms of inappropriate conduct that are not sufficiently serious in nature. The Northern Territory government, throughout the inquiry process, shared their concern that victims might be deterred from making complaints, and those concerns were shared by many others. The Northern Territory government said:

There has been some discussion in the NT about the burden of proof. and the onus on an employee to prove an act is 'sufficiently serious' to warrant action under the proposed legislation. There is some concern that that this may cause additional distress to employees who are already required to establish the facts of the harassment or discrimination.

The test for sex based harassment would still require conduct to be unwelcome, demeaning and something that a reasonable person would have anticipated would cause offence or humiliation. In determining whether conduct amounts to sex based harassment, the commission is required to have regard to the seriousness of the conduct, amongst other things, already. Those provisions already imply a degree of seriousness is needed to establish the offence. So explicitly requiring something to be 'seriously demeaning' will put people off making complaints if they think their stories won't be considered sufficiently serious. It sends a message that so-called 'minor' sex based harassment should be tolerated. There is no justification for subjecting victims of sex based harassment to a higher bar than victims-survivors of other offences.

Once again, the government are trying to change the goalposts. They are trying to appear like they're doing something, namely establishing a new offence of sex based harassment, but they're making it so damn hard for anyone to actually be able to make out that offence that it's an offence in writing only. It's a pyrrhic victory to have this on our law books when the threshold for meeting it has been designed to be so high that most people won't bother trying to make that claim—a fact I'm sure the government knows full well, and I'm sure they've drafted it deliberately.

This amendment seeks to delete the word 'seriously' so that the test would simply be one of 'demeaning' rather than 'seriously demeaning'. As I've said, it already has those in-built other features that need to be met. There is no need to have that additional bar of 'serious' when it is already imputed by the other limbs in those sections and the surrounds. I commend this amendment on sheet 1434 to the chamber.

6:21 pm

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

Labor supports this amendment to the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021. Significant concern has been raised by the requirement that conduct be 'seriously demeaning'. The word 'seriously' in this context creates too high a threshold. Surely it is sufficient for this form of harassment to be made out that a person engaged in unwelcome conduct that was demeaning. Is it not enough to merely demean someone? Must you seriously demean them before you're in contravention of this provision?

Our concern is that requiring a threshold this high will deter some people from making complaints. They will feel that the very first hurdle will be an assessment of their character based on an assessment of whether or not the unwelcome conduct, which they felt demeaned them on the ground of sex, was sufficiently serious. This is the entire cultural problem that we are trying to grapple with. In the Senate inquiry the Human Rights Commission made a submission expressing their concerns about the way the government has approached the drafting of this provision. They said that they were concerned that the threshold of 'seriously demeaning' set the bar too high.

I repeat my observations from earlier. This government should listen to experts rather than arrogantly presuming that it knows better. In this case, they should listen to the views of the commission to determine what constitutes sex based harassment rather than being guided by their own internal culture with respect to the kind of conduct that they consider acceptable.

6:22 pm

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

'Seriously demeaning' is one of the requirements for conduct to meet the new statutory definition of sex based harassment that would be introduced by the bill to the Sex Discrimination Act. The term 'seriously demeaning' was chosen following stakeholder consultation but also to reflect the case law on sex based harassment, and it is to be interpreted using its ordinary meaning.

The CHAIR: The question is that amendment (1) on sheet 1434, as moved by Senator Waters, be agreed to.

6:29 pm

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

[by video link] by leave—On behalf of Senator Rice, I move amendments (1) to (5) on sheet 1373 together:

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

gender identity has the same meaning as in the Sex Discrimination Act 1984.

(2) Schedule 1, item 6, page 3 (after line 26), after the definition of miscarriage, insert:

sex characteristics means a person's physical features relating to sex, and includes:

(a) the person's genitalia and other sexual and reproductive parts of the person's anatomy; and

(b) the person's chromosomes; and

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

9A Subsection 153(1)