Julian Leeser (Berowra, Liberal Party, Shadow Minister for Indigenous Australians) Share this | Hansard source

by leave—I move amendments (1), (2), (3) and (5), as circulated in my name, 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".

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

I circulated some amendments during my second reading speech and outlined the coalition's reasons for supporting those amendments. Today I wish to move the amendments in four groups, and I'll speak briefly to the first group. The principle we're adopting with all of our amendments is to make it easier for businesses to comply with and achieve the intention behind this bill. We're not seeking to see boxes ticked, we're not seeking to burden workplaces unnecessarily, but we are seeking to ensure that workplaces are safe place for all Australians. If employers can't easily fulfil the obligation this legislation places on them and an undue additional regulatory burden is imposed, we will create more problems than we solve. We must take a path that's achievable and will lead to tangible change.

The bill proposes to insert section 28M into the Sex Discrimination Act, which would make it unlawful for a person to subject another person to a workplace environment that's hostile on the grounds of sex. This concept already exists in the antidiscrimination law, although the provision is drafted broadly. We propose an amendment to align the provision with existing case law. The issue with the way the provision is drafted is that there isn't a requirement for the first person or the second person to actually be in the workplace at the same time, or for there to be a temporal connection between the conduct and the harm. For instance, there are businesses that operate on many different sites in different units. It's important that the complaint be related to the activity that goes on at the site or the unit in which a person works. It's also important that the conduct occurs at the relevant time that the person who's bringing the complaint worked in the business.

In relation to the temporal connection, the Australian Chamber of Commerce and Industry pointed out in their submission to the committee as follows:

… from a practical perspective, there are unique circumstances in which an extended lapsed period of time could unfairly punish employers, even where they have taken action to address workplace hostility. For example, consider a scenario in which there exists a cultural problem of sexism at a workplace. If an employer takes action to rectify the situation and ensures that the workplace is no longer "offensive, intimidating or humiliating" to prospective female employees, but a female employee is employed at the workplace at a later date, hears about the prior conduct and is subsequently intimidated, it is likely that proposed section 28M is enlivened. Intimidating conduct has been engaged in and an intimidated person has been in the workplace after the conduct occurred, although the two events were not contemporaneous and there is otherwise no connection between the events and the person.

That means that where a business previously had a bad culture of sexist behaviour and the employee fixed their culture, but an employee was not there at the time but heard about bad culture and was intimated by it, under the legislation as currently drafted they could bring an action. That does not seem to be the intent of the legislation, and it therefore should be clarified. Our amendment would amend section 28M to insert 'in relation to' and delete 'after the conduct occurs' to bring the provision into line with existing case law.

The bill proposes to insert section 47C into the Sex Discrimination Act to establish a positive duty on employers to take reasonable and proportionate measures to eliminate unlawful discrimination on the basis of sex, including sexual harassment, within a workplace. Again, let me draw on the submission of the Australian Chamber of Commerce and Industry. They say:

… section 47C would require employers and PCBUs 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". The widespread use of "reasonably practicable" under work health and safety law has provided PCBUs with a substantial degree of understanding about the meaning of that threshold. There is also extensive case law about the meaning of these words which offers further clarity.

They quote in their submission the High Court case of Slivak and Lurgi and the test applied by Justice Gaudron of what 'reasonably practicable' means. They say:

The new phrase "as far as possible" does not share such clarity.

Like ACCI, we believe that 'as far as reasonably practicable' is the preferable test. Our proposed amendment to section 47C is to insert 'as far as reasonably practicable' and to delete 'as far as possible'. That will more closely align the positive duty created in this bill with the existing obligations on employers under the work health and safety model law. This is essential, as we want to achieve the objects of the bill without creating unnecessary additional burdens on businesses, particularly small businesses.

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