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

by leave—I move:

(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, items 17 to 25, page 11 (line 7) to page 18 (line 4), omit the items.

(7) Schedule 2, Part 2, page 18 (after line 30), 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 in 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 complian ce 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.

(8) Schedule 3, page 19 (line 1) to page 21 (line 22), omit the Schedule, substitute:

Schedule 3 — Inquiries into systemic unlawful dis crimination

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 Ombudsman relating to system ic 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 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 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.

These amendments deal with the transfer of the functions in relation to enforcement and inquiries that have been given to the Human Rights Commission under this bill to the Fair Work Ombudsman. Our area of concern regarding this bill is that it seeks to expand significantly the role of the Human Rights Commission. Let me be very clear: we have very great respect for Sex Discrimination Commissioner Kate Jenkins and the great work she has done this space. Our concern, again, is about the duplication of processes and that workplaces could find themselves being subjected to multiple inquiries through multiple bodies simultaneously. With the Human Rights Commission having enforcement functions in relation to the positive duty, the same matters could be brought to the work health and safety regulator and the Human Rights Commission at the same time.

We're also concerned that the Human Rights Commission's conciliation role would be compromised if it is required to conduct enforcement action in relation to the positive duty, as well as to provide conciliation for the employee bringing forth the complaint. Serving both functions in relation to the same complaint would not be good practice. In order to avoid duplication of the enforcement powers in relation to the positive duty, and in order to protect the conciliation role of the commission and to prevent the duplication of inquiry powers, which could see businesses or sectors subject to inquiry by multiple government agencies at the same time, our amendment says that the Fair Work Ombudsman should hold enforcement powers in relation to the positive duty and the powers of inquiry in relation to systemic unlawful discrimination.

Let me explain why this is consistent with the roles that the Fair Work Ombudsman already has. There are powers and functions allowing the existing powers and functions of the Fair Work Ombudsman. The functions of the Fair Work Ombudsman are provided for in section 68(2) of the Fair Work Act and include monitoring and compliance with the Fair Work Act and Fair Work instruments; investigating conduct contrary to the Fair Work Act and Fair Work instruments; and any other functions conferred on the ombudsman by any other legislation. The Fair Work Ombudsman can undertake workplace investigations in relation to adverse action and it can conduct investigations. Where an investigation finds that the employer has or has had discriminatory practices that are linked to adverse actions for employees or prospective employees, it can take appropriate enforcement actions. Enforcement actions can include issuing compliance notices, enforceable undertakings or commencing proceedings in court before the Fair Work Commission. This extends to instituting proceedings for breach of civil remedy provisions, including those that prohibit adverse action, coercion or undue influence in relation to workplace rights; adverse action or coercion in relation to industrial activities; and those which prohibit contraventions of the National Employment Standards, a modern award enterprise agreement or national minimum wage orders.

In relation to adverse action, this includes workplace discrimination on the basis of various protected attributes, including sex, sexual orientation or marital status. The Fair Work Ombudsman notes that bullying and harassment, including sexual harassment, can in some circumstances amount to unlawful discrimination and then falls within its powers. So we can see the link between the role that the Fair Work Ombudsman already provides and the sense of having these matters dealt with by the Fair Work Ombudsman.

On the Fair Work Ombudsman's broader powers in relation to industries: it can conduct inquiries to monitor compliance within an industry regional supply chain, even where there's no specific allegation of noncompliance with workplace laws, in response to trends in data that indicate systemic noncompliance in particular businesses or industries as is posited in this legislation.

In conclusion, these amendments seek to replicate exactly the same powers that this bill gives to the Australian Human Rights Commission in relation to enforcement and systemic inquiries, and gives those powers to the experienced Fair Work Ombudsman.

See this speech in context