Mr Tony Burke (Watson, Australian Labor Party, Shadow Minister for the Arts) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (51), as circulated in my name, together:

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

(2) 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complaint—means any of the persons on whose behalf the complaint was lodged, but does not include a person who has withdrawn under section 46PC; or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application—means any of the persons on whose behalf the application was made, but does not include a person who has withdrawn under subsection 46POA(7).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.

(3) 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 and Family Court of Australia (Division 2) 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

(c) that is in respect of, or arises out of, the same, similar or related circumstances 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

(c) specify the nature of the relief sought.

(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.

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

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

Repeal the notes.

3G Section 46PSA

Repeal the section, substitute:

46PSA Costs only if proceedings instituted vexatiously etc.

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

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

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

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

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

3H Paragraph 3(e)

Repeal the paragraph, substitute:

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

3J Paragraph 6(2)(c)

Repeal the paragraph, substitute:

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

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

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

(8) 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).

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

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

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

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

Insert:

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

(11) 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

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

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

Repeal the paragraph, substitute:

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

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

Repeal the paragraphs, substitute:

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

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

9C After section 351

Insert:

351A Sexual harassment and harassment on the ground of sex

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

(a) a worker or prospective worker; or

(b) a person conducting a business or undertaking;

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

(c) a worker or prospective worker; or

(d) a person conducting a business or undertaking.

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

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

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

(3) In this section:

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

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

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

(13) 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

(c) provide the worker with a remedy, including compensation.

(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).

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

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

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

After "351(1)", insert:

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

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

Insert:

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

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

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

12A Paragraph 578(c)

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

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

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

(22) 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.

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

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

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

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

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

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

(29) 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".

(30) 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.

(31) 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.

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

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

(34) 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;

(35) 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.

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

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

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

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

48A 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.

(40) Schedule 1, item 28, page 7 (after line 28), 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.

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

Federal Circuit and Family Court of Australia Act 2021

28A Before subparagraph 214(1)(b)(i)

Insert:

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

28B Subsection 214(1) (after note 1)

Insert:

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

Federal Court of Australia Act 1976

28C After paragraph 43(1)(a)

Insert:

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

(42) Schedule 1, item 31, page 8 (lines 11 and 12), omit "to achieve, so far as practicable, equality of opportunity between men and women", substitute "to achieve substantive gender equality".

(43) Schedule 1, item 60, page 14 (line 23), omit "seriously".

(44) Schedule 1, item 60, page 14 (after line 29), 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.

(45) Schedule 1, page 15 (line 1), omit "subsection (1)", substitute "subsections (1) and (1A)".

(46) Schedule 1, item 77, page 19 (after line 21), after Division 5, insert:

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

47B Purpose of Division

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

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

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

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

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

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

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

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

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

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

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

(f) any other relevant factors.

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

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

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

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

47D Commission may assess compliance etc.

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

(a) the subject of the inquiry:

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

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

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

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

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

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

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

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

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

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

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

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

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

47E Enforceable voluntary undertakings

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

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

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

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

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

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

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

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

47F Enforcement of undertakings

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

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

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

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

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

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

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

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

47G Compliance notices

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

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

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

(b) either:

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

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

(3) The compliance notice must:

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

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

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

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

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

(4) The Commission may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order under subsection (5) if:

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

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

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

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

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

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

47H Powers of Commission in relation to inquiries

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

47J Delayed commencement of positive duty

Application of positive duty

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

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

Inquiries into non-compliance with positive duty

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

47K Commission must publish guidance material

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

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

(3) The Commission must:

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

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

(47) Schedule 1, page 19 (before line 22), before item 78, insert:

77A After paragraph 48(1)(c)

Insert:

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

(48) Schedule 1, page 19 (before line 22), before item 78, insert:

77B 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

(49) Schedule 1, page 20 (after line 17), 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.

(50) Schedule 1, page 20 (after line 21), 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.

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

Schedule 2 — Ten days Paid Family and Domestic Violence Leave

Fair Work Act 2009

1 Section 12

Insert:

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

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

Repeal the definition.

3 Subsection 17(2) (note)

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

4 Paragraph 61(2)(e)

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

5 Division 7 of Part 2-2 (heading)

Omit "unpaid", substitute "paid".

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

Omit "Unpaid", substitute "Paid".

7 Section 106A (heading)

Omit "unpaid", substitute "paid".

8 Subsection 106A(1)

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

9 Subsection 106A(2)

Omit "Unpaid", substitute "Paid".

10 Subsection 106A(4)

Omit "unpaid", substitute "paid".

11 Paragraph 106A(4)(a)

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

12 Subsection 106A(5)

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

13 At the end of section 106A

Add:

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

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

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

14 Section 106B (heading)

Omit "unpaid", substitute "paid".

15 Subsection 106B(1)

Omit "unpaid", substitute "paid".

16 Subsection 106B(1) (note 1)

Repeal the note, substitute:

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

17 Subsection 106B(2)

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

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

18 Subsection 106C(1)

Repeal the subsection, substitute:

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

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

19 Section 106D (heading)

Omit "unpaid", substitute "paid".

20 Paragraph 107(3)(d)

Omit "unpaid", substitute "paid".

21 At the end of Part 11 of Schedule 1

Add:

52 Entitlement to paid family and domestic violence leave

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

(a) starting on that commencement; and

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

were a 12 month period.

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

(a) as a casual employee; or

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

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

I will briefly remind the House that the purpose of these amendments is to do what the government said it was going to do, which is to implement all 55 recommendations of the Respect@Work report. The amendments do the following: the objects to include achieving gender equality, recommendation 16(a) of the Respect@Work report; the seriously demeaning threshold, recommendation 16(b) of the Respect@Work report; and implementing the hostile environment clauses, recommendation 16(c) of the Respect@Work report. Recommendations 17 and 18 of the Respect@Work report call for a positive duty and compliance powers for the Human Rights Commission. It's not in the government legislation. This amendment will put it there. Recommendation 19 of the Respect@Work report is to implement them. Recommendation 23 of the report is to implement representative actions to allow unions and other representative groups to bring representative claims to court as per complaints to the commission. Recommendation 25 of the Respect@Work report is for the commission to implement cost protections. They're the changes to the Sex Discrimination Act and other acts that were recommended in the report that are not in the current bill.

As for the recommendations for amendments to the Fair Work Act that were in the Respect@Work report, recommendations 28 and 29 deal with the prohibition on sexual harassment in the Fair Work Act and having a complaints process to be able to deal with it. Further, the amendments have an extension of the 'stop sexual harassment order', as per the Human Rights Commission recommendation to the Senate enquiry; and they deal with the recommendation for 10 days paid family and domestic violence leave to be included in the National Employment Standards.

Paul Fletcher (Bradfield, Liberal Party, Minister for Communications, Urban Infrastructure, Cities and the Arts) Share this | Link to this | Hansard source

I'll just make some brief comments on behalf of the government in relation to the amendments that have been circulated by the opposition, to essentially highlight the point that we have given careful consideration to each of these, and that consideration underpins the particular approach we have taken.

For example, in relation to paid family and domestic violence leave, the primary purpose of this bill is to implement the government's commitments in response to recommendations made in the Respect@Work report. This bill, in the government's judgement, is not the appropriate legislative vehicle to consider broader reforms to family and domestic violence leave. The Fair Work Commission is currently reviewing the family and domestic leave clause in modern awards. Further consideration of the issue of paid leave by this government will be appropriately informed by the commission's consideration of this issue.

In relation to the question of representative actions, as outlined in the government's Roadmap for respect, there is already an existing mechanism to enable representative proceedings in the Federal Court under part IVA of the Federal Court of Australia Act 1976, and, given these avenues, it's not clear that a further ability to make representative claims is required. In relation to cost protections, there are mixed views on whether the model recommended by the Respect@ Work report and adopted in one of the amendments that the opposition has proposed based on section 570 of the Fair Work Act will actually address the issues identified with the current model. For example, as part of the consultations for the Respect@Work report, Victorian Legal Aid outlined their view that this model would still provide a disincentive for applicants, given it would not enable them to recover their costs, even if they were successful.

In the interests of time, I won't go through a comprehensive response, but I can assure the House that the government have carefully considered the amendments on their merits, and we've arrived at the views we have based upon policy considerations such as the ones I've just run through.

Tony Smith (Speaker) Share this | Link to this | Hansard source

The question is that the amendments be disagreed to.