Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

by leave—I move government amendments (1) to (5) on sheet RV162 together:

(1) Schedule 2, item 8, page 8 (line 15), at the end of the heading to subsection 47C(4), add "by any person".

(2) Schedule 2, item 8, page 9 (line 7), omit "steps", substitute "measures".

(3) Schedule 2, item 8, page 9 (after line 9), at the end of section 47C, add:

Other duties not limited or otherwise affected

(7) This section does not limit, or otherwise affect, a duty that a duty holder has under:

(a) the Work Health and Safety Act 2011; or

(b) a law of a State or Territory that deals with work health and safety.

(8) Paragraph (7)(b) does not limit the operation of section 10 or 11.

(4) Schedule 2, item 23, page 16 (after line 9), after subsection 35H(1), insert:

(1A) The application must be made within:

(a) if the compliance notice has been reconsidered under section 35G—21 days after the person was given a notice of a decision under subsection 35G(6) relating to the compliance notice; or

(b) otherwise—21 days after the day the compliance notice was given to the person.

(5) Schedule 5, page 27 (line 1) to page 29 (line 28), to be opposed.

I table a supplementary explanatory memorandum relating to the government amendments.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

The opposition will support these amendments, and I appreciate the government working with the opposition in relation to these changes. These changes are important for providing certainty for Australians and Australian employers. The amendments will provide clarity and certainty for businesses and employees on their rights and obligations that they are not competing between the antidiscrimination laws and the work health and safety laws. We're also supportive of further clarifying the application period for the compliance notices.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

The amendments on sheet RV162 are technical refinements to provide greater certainty and clarity on the operation of the bill and to allow for additional consideration of the proposed reforms to cost protections.

To outline each of those amendments, amendment (1) relates to third parties in positive duty. This amendment would add the words 'by any person' to the end of the headings of subsections 47C(4) and 47C(5), amending them to read 'other conduct towards employees and workers by any person'. The purpose of this amendment is to clarify that subsections 47C(4) and 47C(5) cover conduct engaged in by third parties or other persons such as customers and suppliers. This means that an employer or person conducting a business or undertaking must take measures to protect their employees or workers from certain conduct by third parties such as customers.

The second amendment would make a technical correction to the current language used in paragraph 47(6)(c) of the Sex Discrimination Act as inserted by the bill. Amendment (3) would add an additional subsection to the positive duty in section 47C of the bill to provide that it does not limit, or otherwise affect, a duty that a duty holder has under Commonwealth and state or territory health and safety laws. And amendment (4) would provide an explicit time frame for a person to seek judicial review of a compliance notice that has been issued by the Human Rights Commission in relation to noncompliance with the positive duty. Amendment (5) is in relation to cost protection. This amendment would remove schedule 5 of the bill which was going to insert a cost protection provision in the Australian Human Rights Commission Act.

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

I rise on behalf of the Australian Greens to indicate that we will be supporting these government amendments. They're all of a technical nature. I particularly welcome item 1, which extends the positive duty obligations on an employer to address improper and harassing behaviour by customers or clients or contractors. That's a very meaningful extension and a very important one.

In relation to item 5, as I mentioned earlier, we're really pleased that the government has dropped their proposed cost changes. There was real concern that this would have put barriers in the way of people accessing and enforcing these new rights, and we very much welcome the agreement that the government reached with the Greens to look more closely at these issues and, indeed, to look at potentially making access to justice more accessible for all protected attributes not just for harassment on the grounds of gender. That's why we won't be moving the joint amendment between the Greens and the Jacqui Lambie Network on sheet 1700 today—because the government has now dropped their cost provisions and has agreed to expedite a review to, ideally, come to an approach where, if a complainant is successful, they can get the cost awarded, but, if they're not successful, they don't face that risk of having to pay their employer's legal costs. That's the ideal scenario that many experts have pushed for, and that's what we hope will be found in the review. Of course, we'll come back to this chamber and, ideally, legislate those stronger provisions in due course.

Louise Pratt (WA, Australian Labor Party) Share this | Link to this | Hansard source

The question is that government amendments (1) to (4) on sheet RV162 be agreed to.

Question agreed to.

The question now is that schedule 5 stand as printed.

Question negatived.

Tammy Tyrrell (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

by leave—I, and also on behalf of Senator Lambie and Senator Waters, move amendments (1) and (2) on sheet 1702:

(1) Clause 2, page 2 (table item 1), omit "3", substitute "4".

(2) Page 2 (after line 11), after clause 3, insert:

4 Review of operation of amendments

(1) The Minister must cause an independent review to be conducted of the operation of the amendments made by this Act.

(2) Without limiting subsection (1), the review must consider whether:

(a) the amendments made by this Act are operating effectively; and

(b) the Australian Human Rights Commission has capacity to carry out the functions relating to compliance with the positive duty in relation to sex discrimination in Division 4A of Part II of the Australian Human Rights Commission Act 1986,as inserted by Part 2 of Schedule 2 to this Act.

(3) The review must commence as soon as practicable after the end of the period of 2 years after the day Division 2 of Part 2 of Schedule 2 to this Act commences and, in any event, not later than 3 years after that day.

(4) The persons who conduct the review must give the Minister a written report of the review as soon as practicable and, in any event, not later than 9 months after commencement of the review.

(5) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.

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

These are joint amendments between the Greens and the Jacqui Lambie Network. I thank the government for their indication that they will support these amendments. These amendments would require a comprehensive review of the operation of the act, not just a review of the costs provisions—which we've also reached agreement with the government on—but a broader review of the operation of the whole act to make sure that it is delivering on its intentions, to make sure that employers and employees have the support and guidance that they need for the operation of these provisions. We commend these amendments to the chamber.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I can confirm that the government will be accepting these amendments.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

The coalition will support these amendments. An independent review, with a report to the parliament, will ensure we can make any changes necessary to ensure any deficiency in this amendment legislation is identified and puts forward a pathway to address these potential issues. It is important these significant changes are reviewed for how they are operating, and, for this reason, the coalition will be supporting the review.

Question agreed to.

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

by leave—I move amendments (1) to (5) on sheet 1712 together:

(1) Schedule 1, item 2, page 3 (lines 11 and 12), omit "subjecting persons to workplace environments that are hostile on the grounds of sex", substitute "substantially contributing to the creation or maintenance of workplace environments that are hostile on the grounds of a protected attribute".

(2) Schedule 1, item 3, page 3 (before line 15), before the definition of workplace, insert:

protected attribute means a person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, potential pregnancy, breastfeeding or family responsibilities.

(3) Schedule 1, items 4 to 6, page 3 (line 17) to page 5 (line 4), omit the items, substitute:

4 After section 8

Insert:

8A Workplace environment that is hostile for 2 or more reasons

For the purposes of this Act, a workplace environment may be offensive, intimidating or humiliating to persons who have a protected attribute by reason of:

(a) the persons having the protected attribute; or

(b) a characteristic that appertains generally to persons who have the protected attribute; or

(c) a characteristic that is generally imputed to persons who have the protected attribute;

if it is offensive, intimidating or humiliating by reason of 2 or more matters that include the protected attribute or the characteristic, whether or not the protected attribute or the characteristic is the dominant or substantial reason.

5 At the end of Division 3 of Part II

Add:

28M Hostile workplace environments

(1) It is unlawful for a person to substantially contribute to the creation or maintenance of a workplace environment that is hostile on the grounds of a protected attribute.

(2) A person substantially contributes to the creation or maintenance of a workplace environment that is hostile on the grounds of a protected attribute if:

(a) the person engages in conduct in a workplace where the person works; and

(b) a reasonable person, having regard to all the circumstances, would have anticipated the possibility of the conduct resulting in the workplace environment being offensive, intimidating or humiliating to persons who have the protected attribute by reason of:

(i) the persons having the protected attribute; or

(ii) a characteristic that appertains generally to persons who have the protected attribute; or

(iii) a characteristic that is generally imputed to persons who have the protected attribute.

Note: See also section 8A in relation to workplace environments that are offensive, intimidating or humiliating for 2 or more reasons.

(3) For the purposes of subsection (2), the circumstances to be taken into account include, but are not limited to, the following:

(a) the seriousness of the conduct;

(b) whether the conduct was continuous or repetitive;

(c) the role, influence or authority of the person engaging in the conduct;

(d) any relevant workplace policies or guidelines in effect in the workplace;

(e) any other relevant circumstance.

Note: In relation to paragraph (b), depending on the circumstances, a person may substantially contribute to the creation or maintenance of a workplace environment that is hostile on the grounds of a protected attribute even if the person's conduct is not continued or repeated.

(4) In this section:

conduct includes:

(a) making a statement, whether the statement is made orally or in writing; and

(b) an omission.

6 At the end of paragraphs 48( 1)( gaaa), (gaa) and (gc)

Add:

; or (iii) substantially contributing to the creation or maintenance of a workplace environment that is hostile on the grounds of a protected attribute;

(4) Schedule 2, item 8, page 9 (after line 8), after paragraph 47C(6)(c), insert:

(ca) whether the duty holder has conducted meaningful consultation with:

(i) if the duty holder is an employer—the duty holder's employees; or

(ii) if the duty holder is a person conducting a business or undertaking—workers in the business or undertaking;

for the purposes of ensuring that the duty holder effectively addresses key risks and behaviours relating to conduct covered by subsection (2) or (4);

(cb) whether the duty holder has complied with any guidelines prepared and published by the Commission under section 35A of the Australian Human Rights Commission Act 1986;

(5) Schedule 2, item 23, page 14 (after line 30), at the end of section 35F, add:

(4) The President may publish a notice given to a person under subsection (1) on the Commission's website after:

(a) unless paragraph (b) applies—the end of the period of 21 days after the day the notice is given to the person; or

(b) if the person requests the President to reconsider the notice under section 35G—the time the President gives written notice of a decision under subsection 35G(6).

I will briefly outline the nature of these amendments. Amendments (1) to (3) pertain to amending the hostile workplace environment provisions. As drafted, the bill's hostile workplace environment provisions apply primarily to interactions between individuals. One person must directly subject another person to the hostile environment. But requiring this nexus fails to clearly target those who create or perpetuate a hostile work environment, as opposed to those whose behaviour is encouraged by that environment. Individuals who discriminate or harass will already be captured by other sections—28A and 28AA—so, unless it's made clear that section 28M goes beyond individuals to those creating the environment in which misconduct is fostered, 28M will not achieve its aims. We think this is an amendment that gives effect to the genuine intent of the Jenkins recommendation. It's clear that strong and clear hostile work environment provisions would assist the bill to achieve its key aim. So we particularly commend amendments (1) to (3). I understand that we will not be receiving support for those amendments, which is precisely why we need a review of this bill. So I'm pleased that the previous amendments did pass. I flag that we'll be progressing clarity-style amendments along these lines when that review is underway.

I will briefly outline what amendment (4) does. The steps needed to create a safe workplace will differ between workplaces and industries. In our view, staff are best placed to identify the key risks in their workplace and how to address them. For this reason, staff should be consulted as part of the positive duty obligations, to ensure that what an employer is doing is targeted and is effective. If employers are serious about making workplaces safer, they do actually need to talk to their staff about particular risks in their workplace and what should be done to address them. Many employers will do that. Sadly, others will not. Employers need to report on the actions that they take, and they need to regularly review whether those actions are actually working. Anything else is just lip-service. That's why we've drafted our amendments to that effect, to require employers to talk with their staff and regularly report on if the positive duty is properly being implemented. The bill requires the Human Rights Commission to publish guidelines on how to comply with the positive duty, so our amendment also gives those guidelines some teeth by requiring the employer and the commission itself have regard to those guidelines in determining whether an employer has met that duty.

The Human Rights Commission requested the change in amendment (5) in the inquiry on the bill. The Human Rights Commission can issue compliance notices to employers that they believe are not meeting their positive duty obligations. The employer can then do nothing, they can dispute the notice or they can respond to the notice and enter into an enforceable undertaking setting out what changes they will make. The AHRC can currently publish those enforceable undertakings. But they are not permitted under this bill to publish those compliance notices, and it's our view that allowing the commission the discretion to publish compliance notices would improve the transparency for employees and the guidance for other employers. It's important that employers know that these changes have teeth and that people are watching, and if the commission serves a compliance notice, it is in the public interest, in my view, for people to know about that. That's why we think the commission should be given the discretion to publish those compliance notices, not just the subsequent enforcement notices when the compliance notices have been ignored. So we commend those amendments to the chamber.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

The government will not be accepting the amendments circulated by Senator Waters in relation to these provisions. Comprehensive reasons for the government's position were given in the House, and I would refer people to those reasons for more detail. But in brief, the government considers the hostile work environment amendments as not necessary, as substantial contribution to the creation or maintenance of a hostile work environment would already be covered by what it means to subject someone to a hostile work environment. The amendments would also broaden the protected attributes that would be covered by the prohibition on hostile work environments, and this is beyond the scope of what was recommended by the Respect@Work report and beyond the scope of this bill. This bill is really about delivering the Respect@Work report recommendations, and that's what we're doing. But we're not going beyond that, which is what this amendment seeks to do.

The amendment on positive duty matters to be taken into account would add two further factors to be considered by the Human Rights Commission when determining whether someone has complied with the positive duty. These amendments are not necessary. The commission's guidelines would inform their assessment of compliance with the positive duty. It's not necessary to legislate for this.

Finally, the amendment put forward in relation to publication of positive duty compliance notices would provide the President of the Human Rights Commission with the power to publish a compliance notice on the commission's website. This amendment is not supported, as it may be counterproductive to the objective of achieving compliance with the positive duty. As I said, comprehensive reasons were provided for the government's position in opposing these amendments, but that just sums it up very much in brief.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

The opposition will also not be supporting these amendments. On behalf of the opposition, comprehensive reasons were given in the House in relation to why. Very briefly, this bill is not the appropriate vehicle for the changes proposed in the amendments. The Respect@Work report responded to workplace sexual harassment. As such, the legislative responses to that report have focused on sexual harassment, rather than harassment on the basis of all the protected characteristics in the Sex Discrimination Act.

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

I just put on record that I disagree with that flimsy reasoning and that these amendments weren't even raised in the House, so I find it hard to believe that a comprehensive response has already been given. But I'll register my discontent and move on.

Question negatived.

I seek leave that the Australian Greens support for our own amendments be recorded in Hansard, but we won't be seeking to call a division, given the time pressures of the day.

Leave granted.

I now move amendment (6) on sheet 1712:

(6) Schedule 8, page 45 (after line 12), at the end of the Schedule, add:

4 After section 114

Insert:

115 Section 13 taken never to have been enacted

(1) This Act is taken always to have had effect as if:

(a) section 12 (about binding the Crown) had been enacted as that section is in force at the commencement of this section; and

(b) section 13 (about State instrumentalities), repealed by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021, was never enacted; and

(c) the following provisions of this Act, as in force at the commencement of this section, were in effect:

(i) section 109 (about the State being taken to be an employer);

(ii) any other provisions to the extent that they relate to that section; and

(d) any modifications prescribed by the regulations that are appropriate to give effect to paragraphs (a), (b) and (c) of this section were in effect.

(2) Subsection (1) does not affect the operation of this Act on or after the commencement of the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021.

This relates to the ability for state employees to seek a remedy under the federal Sex Discrimination Act. The welcome repeal of section 13 of the Sex Discrimination Act by the respect at work bill of 2021 removed the restriction that had prevented state government employees accessing remedies under the Commonwealth regime. But the repeal was not made retrospective, and this meant that a number of state government employees remained locked out of seeking justice. Section 47A, which was introduced at the same time and allowed civil action for victimising conduct, was given retrospective effect in recognition of the justice denied to victims by the option not having been made available previously. The same right should be extended to those excluded by section 13. It would still be subject to the statute of limitations as a reasonable time limit on claims. We are seeking to move this amendment to redress that inequity and that inconsistency.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

The government will be opposing this amendment. The government doesn't support making amendments from the respect at work act of last year retrospective in operation. The respect at work act of 2021 repealed section 13 of the Sex Discrimination Act to ensure that state and territory employees were able to make complaints of sex discrimination and sexual harassment under the Commonwealth Sex Discrimination Act. The amendments to section 13 last year did not apply retrospectively because they created a new form of liability that didn't previously exist. Retrospective operation is only appropriate in very limited circumstances. That's a longstanding principle. Each state and territory has antidiscrimination laws prohibiting sexual harassment and sex discrimination, providing an avenue for state and territory employees to make a complaint for conduct that occurred prior to the amendments at the Commonwealth level last year.

Question negatived.

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

Chair, again, in recognition of the time pressures in the chamber, rather than dividing, I ask that the position of the Australian Greens supporting that amendment be recorded.

Louise Pratt (WA, Australian Labor Party) Share this | Link to this | Hansard source

Thank you for that courtesy. Senator Cash.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

be leave—I rise to move opposition amendments (1) to (11) on sheet 1752 together:

(1) Schedule 1, item 5, page 4 (line 9), after "conduct", insert "in relation to the second person".

(2) Schedule 1, item 5, page 4 (lines 11 and 12), omit "or after".

(3) Schedule 2, item 8, page 7 (line 7), omit "possible", substitute "reasonably practicable".

(4) Schedule 2, item 8, page 7 (lines 9 to 11), omit ", including inquiring into compliance, giving compliance notices and accepting undertakings".

(5) Schedule 2, item 8, page 7 (line 16), omit "possible", substitute "reasonably practicable".

(6) Schedule 2, page 11 (line 14), omit the heading.

(7) Schedule 2, items 17 to 25, page 11 (line 15) to page 18 (line 13), to be opposed.

(8) Schedule 2, Part 2, page 19 (after line 10), at the end of the Part, add:

Sex Discrimination Act 1984

31 Subsection 4(1)

Insert:

compliance notice means a notice mentioned in subsection 49E(1).

positive duty i n relation to sex discrimination means section 47C.

Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.

32 After Part III

Insert:

Part IIIA — Functions of Fair Work Ombudsman relating to positive duty in relation to sex discrimination

49 Functions of the Fair Work Ombudsman relating to positive duty in relation to sex discrimination

(1) The following functions are conferred on the Fair Work Ombudsman:

(a) to inquire into a person's compliance with the positive duty in relation to sex discrimination;

(b) to ensure compliance with the positive duty in relation to sex discrimination.

Note: The positive duty in relation to sex discrimination is section 47C.

(2) Notwithstanding subsection (1), the functions of the Fair Work Ombudsman do not include inquiring into an intelligence agency's compliance with the positive duty in relation to sex discrimination.

(3) If the Fair Work Ombudsman reasonably suspects that an intelligence agency is not complying with the positive duty in relation to sex discrimination, the Fair Work Ombudsman must refer the matter to the Inspector General of Intelligence and Security.

(4) A reference in subsection (3) to an intelligence agency is a reference to the following:

(a) the Australian Secret Intelligence Service;

(b) the Australian Security Intelligence Organisation;

(c) the Office of National Intelligence;

(d) the Australian Signals Directorate;

(e) that part of the Defence Department known as the Australian Geospatial-Intelligence Organisation (including any part of the Defence Force that performs functions on behalf of that part of the Department);

(f) that part of the Defence Department known as the Defence Intelligence Organisation.

49A Performance of inquiry function relating to positive duty in relation to sex discrimination

(1) The Fair Work Ombudsman may inquire into a person's compliance with the positive duty in relation to sex discrimination if the Fair Work Ombudsman reasonably suspects that the person is not complying.

(2) The Fair Work Ombudsman must act fairly in the performance of the function referred to in paragraph 49(1)(a).

(3) Subsection (2) does not impose a duty on the Fair Work Ombudsman that is enforceable in court.

(4) Subsection (3) does not affect a legally enforceable obligation to observe the rules of natural justice.

49B Fair Work Ombudsman to notify person and give opportunity for making of submissions

(1) As soon as practicable after commencing an inquiry into a person's compliance with the positive duty in relation to sex discrimination, the Fair Work Ombudsman must give the person a written notice stating the grounds on which the Fair Work Ombudsman commenced the inquiry.

(2) The Fair Work Ombudsman must not find that a person is not complying with the positive duty in relation to sex discrimination unless it has given a reasonable opportunity to the person, to do, at the option of the person, either or both of the following:

(a) to appear before the Fair Work Ombudsman, whether in person or by a representative, and make oral submissions in relation to the person's compliance;

(b) to make written submissions to the Fair Work Ombudsman in relation to the person's compliance.

49C Application of certain provisions of Fair Work Act

Sections 708 to 714A and 718 to 718A of the Fair Work Act 2009 apply in relation to the functions of the Fair Work Ombudsman set out in section 49 of this Act, and in relation to the performance of those functions, as if an inquiry under this Part were an investigation into a suspected contravention of the Fair Work Act 2009.

49D Notification of findings and recommendations

If, as a result of an inquiry into a person's compliance with the positive duty in relation to sex discrimination, the Fair Work Ombudsman finds that the person is not complying, the Fair Work Ombudsman:

(a) must notify the person in writing of its finding and the reasons for the finding; and

(b) may notify the person of any recommendations by the Fair Work Ombudsman for preventing a repetition or continuation of the failure to comply.

49E Giving of compliance notice

(1) If, as a result of an inquiry into a person's compliance with the positive duty in relation to sex discrimination, the Fair Work Ombudsman finds that the person is not complying, the Fair Work Ombudsman may give the person a written notice.

(2) The notice must:

(a) set out the name of the person to whom the notice is given; and

(b) set out brief details of the failure to comply; and

(c) specify action that the person must take, or refrain from taking, in order to address the failure; and

(d) specify a reasonable period (starting at least 21 days after the day the notice is given) within which the person must take, or refrain from taking, the specified action; and

(e) if the Fair Work Ombudsman considers it appropriate—specify a reasonable period within which the person must provide the Fair Work Ombudsman with evidence that the person has taken, or refrained from taking, the specified action; and

(f) set out any other matters prescribed by the regulations for the purposes of this paragraph.

(3) However, if the Fair Work Ombudsman has accepted an undertaking from a person under Part 6 of the Regulatory Powers Act in relation to the positive duty in relation to sex discrimination, a notice must not be given to the person under subsection (1) unless the undertaking is withdrawn, cancelled or expired.

49F Reconsideration of compliance notice

Fair Work Ombudsman must reconsider compliance notice if requested

(1) A person to whom a compliance notice is given may request the Fair Work Ombudsman to reconsider the compliance notice.

(2) The request must:

(a) be made in writing; and

(b) set out the reasons for the request; and

(c) be given to the Fair Work Ombudsman within 21 days after the day the compliance notice is given to the person.

(3) If requested, the Fair Work Ombudsman must reconsider the compliance notice.

Fair Work Ombudsman may reconsider compliance notice on own initiative

(4) The Fair Work Ombudsman may reconsider a compliance notice given to a person without receiving a request if satisfied there is sufficient reason to do so.

Reconsideration

(5) The Fair Work Ombudsman must act expeditiously in reconsidering a compliance notice.

(6) After reconsidering a compliance notice, the Fair Work Ombudsman must:

(a) affirm the compliance notice; or

(b) vary the compliance notice; or

(c) revoke the compliance notice.

(7) The Fair Work Ombudsman must give written notice of a decision under subsection (6) to the person to whom the compliance notice was given, setting out the reasons for the decision.

Decisions by delegates

(8) If the Fair Work Ombudsman's functions under this section are performed by a delegate, the delegate who reconsiders a compliance notice:

(a) must not have been involved in giving the compliance notice; and

(b) must hold a position, or perform duties, of at least the same level as the person who gave the compliance notice.

49G Review of compliance notice

(1) A person who has been given a compliance notice may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for a review of the notice on either or both of the following grounds:

(a) the person has not failed to comply as set out in the notice;

(b) the notice does not comply with subsection 49E(2) or (3).

(2) At any time after the application has been made, the court concerned may stay the operation of the notice on the terms and conditions that the court considers appropriate.

(3) The court concerned may confirm, vary or cancel the notice after reviewing it.

49H Enforcement of compliance notice

(1) The Fair Work Ombudsman may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order under subsection (2) if:

(a) a person has been given a compliance notice; and

(b) the notice has not been revoked or cancelled; and

(c) the notice is not being reconsidered under section 49F or reviewed under section 49G; and

(d) the Fair Work Ombudsman considers that the person has not complied with the notice.

(2) If the court concerned is satisfied that the person has not complied with the notice, the court may make any or all of the following orders:

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

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

49J Enforceable undertakings

Enforceable provision

(1) Section 47C of this Act is enforceable under Part 6 of the Regulatory Powers Act.

Note 1: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.

Note 2: Section 47C of this Act is the positive duty in relation to sex discrimination.

Authorised persons

(2) For the purposes of Part 6 of the Regulatory Powers Act, the Fair Work Ombudsman is an authorised person in relation to section 47C of this Act.

Relevant court

(3) For the purposes of Part 6 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to section 47C of this Act:

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2).

Enforceable undertaking may be published on the Fair Work Ombudsman's website

(4) The Fair Work Ombudsman may publish on the Ombudsman's website an undertaking given in relation to section 47C of this Act.

Extension to external Territories

(5) Part 6 of the Regulatory Powers Act, as that Part applies in relation to section 47C of this Act, extends to every external Territory.

49K Delegation by the Fair Work Ombudsman

(1) The Fair Work Ombudsman may, in writing, delegate all or any of the Fair Work Ombudsman's functions or powers under this Part (including the Fair Work Ombudsman's powers and functions under Part 6 of the Regulatory Powers Act in relation to section 47C of this Act) to a member of the staff of the Office of the Fair Work Ombudsman who is:

(a) an SES employee; or

(b) an acting SES employee; or

(c) classified as Executive Level 2 or equivalent; or

(d) acting in a position usually occupied by a member of the staff of the Office of the Fair Work Ombudsman who is so classified.

Note: The expressions SES employee and acting SES employee are defined in the Acts Interpretation Act 1901.

(2) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the Fair Work Ombudsman.

49L Jurisdiction of Federal Court and Federal Circuit and Family Court of Australia (Division 2)

The Federal Court and the Federal Circuit Court of Australia (Division 2) have concurrent jurisdiction with respect to civil matters arising under this Part.

(9) Schedule 3, page 20 (line 1) to page 22 (line 22), omit the Schedule, substitute:

Schedule 3 — Inquiries int o systemic unlawful discrimination

Australian Human Rights Commission Act 1986

1 Subsection 3(1)

Insert:

systemic unlawful discrimination: see subsection 46PYA(4).

2 After Part IIC

Insert:

Part IID — Systemic discrimination

46PYA Functions of Fair Work Ombud sman relating to systemic discrimination

(1) The following functions are conferred on the Fair Work Ombudsman:

(a) to inquire into any matter that may relate to systemic unlawful discrimination or suspected systemic unlawful discrimination;

(b) to do anything incidental or conducive to the performance of any of the preceding functions.

(2) Notwithstanding subsection (1), the functions of the Fair Work Ombudsman do not include inquiring into a matter that may relate to systemic unlawful discrimination or suspected systemic unlawful discrimination of an intelligence agency.

(3) A reference in subsection (2) to an intelligence agency is a reference to the following:

(a) the Australian Secret Intelligence Service;

(b) the Australian Security Intelligence Organisation;

(c) the Office of National Intelligence;

(d) the Australian Signals Directorate;

(e) that part of the Defence Department known as the Australian Geospatial-Intelligence Organisation (including any part of the Defence Force that performs functions on behalf of that part of the Department);

(f) that part of the Defence Department known as the Defence Intelligence Organisation.

(4) In this Act:

systemic unlawful discrimination means unlawful discrimination that:

(a) affects a class or group of persons; and

(b) is continuous, repetitive or forms a pattern.

46PYB Performance of functions relating to systemic discrimination

The Fair Work Ombudsman may perform the functions referred to in paragraph 46PYA(1)(a) when:

(a) the Fair Work Ombudsman is requested to do so by the Minister; or

(b) it appears to the Fair Work Ombudsman to be desirable to do so.

46PYC Application of certain provisions of the Fair Work Act

Sections 708 to 714A and 718 to 718A of the Fair Work Act 2009 apply in relation to the functions of the Fair Work Ombudsman set out in section 46PYA of this Act, and in relation to the performance of those functions, as if an inquiry under this Part were an investigation into a suspected contravention of the Fair Work Act 2009.

46PYD Fair Work Ombudsman to give opportunity for making of submissions

In an inquiry into a matter under this Part, the Fair Work Ombudsman must not make an adverse finding about a person unless it has given a reasonable opportunity to the person, to do, at the option of the person, either or both of the following:

(a) to appear before the Fair Work Ombudsman, whether in person or by a representative, and make oral submissions in relation to the matter;

(b) to make written submissions to the Fair Work Ombudsman in relation to the matter.

46PYE Reports

(1) If the Fair Work Ombudsman has undertaken an inquiry into a matter under this Part, the Fair Work Ombudsman may do either or both of the following:

(a) report to the Minister in relation to the inquiry;

(b) publish a report in relation to the inquiry.

(2) The Fair Work Ombudsman may include in its report any recommendations by the Fair Work Ombudsman for addressing the matter.

46PYF Reports to be tabled in Parliament

The Minister must cause a copy of every report furnished to the Minister by the Fair Work Ombudsman under section 46PYE(1) to be laid before each House of the Parliament within 15 sitting days of that House after the report is received by the Minister.

46PYG Delegation by the Fair W ork Ombudsman

(1) The Fair Work Ombudsman may, in writing, delegate all or any of the Fair Work Ombudsman's functions or powers under this Part to a member of the staff of the Office of the Fair Work Ombudsman who is:

(a) an SES employee; or

(b) an acting SES employee; or

(c) classified as Executive Level 2 or equivalent; or

(d) acting in a position usually occupied by a member of the staff of the Office of the Fair Work Ombudsman who is so classified.

Note: The expressions SES employee and acting SES employee are defined in the Acts Interpretation Act 1901.

(2) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the Fair Work Ombudsman.

(10) Schedule 4, page 23 (line 1) to page 26 (line 12), to be opposed.

(11) Schedule 8, item 2, page 45 (lines 9 and 10), to be opposed.

I'll make some brief comments in relation to the amendments. Proposed section 28M does not include the words 'in relation to'. This merely brings the text into line with existing obligations. As currently drafted, the proposed prohibition may extend to instances where the complainant has no exposure to the conduct that causes the hostile work environment. In practice, this may mean that an employee could make a complaint under proposed section 28M without ever being in the vicinity of the alleged conduct. We've introduced amendment (1) to ensure that the relevant conduct occurs in relation to the second person. Proposed section 28M includes the words 'after the conduct occurs'. Given the possibility of large organisations with workplaces distributed across multiple locations, it is important that the person was in the workplace at the time that the conduct occurred. We have introduced amendment (2) to delete the words 'after the conduct occurs'.

In relation to the positive duty, section 47C would require employers and persons conducting the business undertaking to take measures to eliminate as far as possible certain conduct under work health and safety law. The obligation imposed on PCBUs is to ensure the health and safety of their workers as far as is reasonably practicable. We've introduced amendments (3) and (5) to bring this provision within the well-understood existing position of industrial relations law by using the formulation 'as far as reasonably practicable'. In terms of shifting the enforcement inquiries to the Fair Work Ombudsman, in order to avoid regulatory overlap and duplications in compliance regimes, we have proposed to shift the enforcement powers for the positive duty to the Fair Work Ombudsman. We've proposed to shift the inquiry powers to the Fair Work Ombudsman to prevent an employer being investigated by more than one body in relation to the same conduct and to avoid any conflict between the conciliation and inquiry functions of the Australian Human Rights Commission.

In terms of representative actions, there already exists a mechanism by which representative actions can be brought in the Federal Court of Australia. Allowing a party who is not an aggrieved party to have standing to commence a claim, as this provision does, is a significant departure from Australia's class action laws. Representative groups are not prohibited from providing financial or legal support to parties pursuing a representative proceedings in the court. Rather they are simply prevented from commencing the proceedings on their behalf.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

The amendments moved by the opposition bear no resemblance to the actual recommendations of the Respect@Work report, and so the government will not be supporting them.

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

Can I indicate that the Australian Greens will be opposing these provisions, particularly items (1) and (2), which would change the hostile work environment provisions to require that the conduct be directed at a complainant. The individual complainant approach defeats the purpose of having provisions creating a workplace and cultural change approach, so wrong way, go back. Items (3) and (4) would weaken the positive duty by requiring employers to do simply what is reasonably practicable rather than what is possible to make the workplace safe. We won't support a weakening of the positive duty. The proposal to give compliance powers to the Fair Work Ombudsman rather than AHRC would fly in the face of Ms Jenkins's recommendations, which identify the AHRC as the best compliance agency, given its expertise.

Again, on item 10 to scrap the representative actions provisions, the Greens believe representative actions are a key reform in allowing complaints to be made without exposing individual workers. Lastly, the proposal in item 11 is to revert to the previous government's weak version of the objectives clause, which would seek equality of opportunity rather than substantive equality. Structural gender inequality is not simply about denial of opportunity. It reflects how discrimination, stereotypes and other factors can affect people's capacity to take up opportunities. The goal of substantive equality recognises that opportunities need to be offered differently in some circumstances in order to overcome structural barriers and achieve substantive equality. For all those reasons, we won't be supporting any of these amendments.

The CHAIR: Senator Cash has moved amendments (1) to (11) on 1752. I am required to put those amendments by two questions. I will take you through the questions before I put them. The first question is that amendments (1) to (6), (8) and (9) be agreed to. Regardless of the outcome, I will then put the second question, which will be that items 17 to 22, 24 and 25 of schedule 2, schedule 4, and item 2 of schedule 8 stand as printed, and item 23 of schedule 2 stand as amended.

The CHAIR (12:34): The question is that items 17 to 22, 24 and 25 of schedule 2, schedule 4, and item 2 of schedule 8 stand as printed, and item 23 of schedule 2 stand as amended.

Question agreed to.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.