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

by leave—I move amendments (1) to (6) on sheet 1405 together:

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

3A 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

3B 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.

(2) 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).

(3) 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

(4) 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.

(5) 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:

(6) 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".

These amendments implement an important—but, of course, again ignored—recommendation of the Respect@Work report. They create in the Fair Work Act the expressed prohibition of sexual harassment. For clarity, this is the act that governs the workplaces of Australians. It strikes me extremely strange—but I'm not surprised—that the government has failed to accept or implement this very important recommendation. The act confers functions and powers on the commission, including the power to conciliate sexual harassment complaints. The ACTU highlighted in their submission to the Senate inquiry that sexual harassment is undeniably a workplace issue that must be expressly prohibited and addressed through our workplace laws.

The Australian Human Rights Commission statistics show that in 2018-19 the majority—almost 70 per cent—of complaints made under the Sex Discrimination Act related to employment and almost a quarter of those related to sexual harassment specifically. It's happening in Australian workplaces, but the Fair Work Act does not expressly prohibit sexual harassment.

There's an argument that it can be indirectly addressed through a number of provisions, including the general protections against adverse action on the basis of a workplace right, general protections against adverse action on the basis of sex, the antibullying jurisdiction, unfair dismissal and unlawful termination on the ground of sex. But the Respect@Work report stated that the absence of any express prohibition under the main legislation that governs workplaces created 'ambiguities and gaps in how sexual harassment is handled under the Fair Work Act'. It's a pretty conclusive conclusion. The commissioner went on to say:

It is clear from the many submissions and consultations recommending reform that the current framework under Part 3-1 of the Fair Work Act does not provide the clarity and coverage needed for victims of sexual harassment in the workplace.

The lack of an express prohibition against sexual harassment within the Fair Work Act means that, in practice, sexual harassment matters are raised using provisions under Part 3-1 of the Fair Work Act that were not designed to address sexual harassment.

The ACTU has said a worker may have a claim under section 340 of the Fair Work Act if they are victimised for making a complaint about sexual harassment, but there is no right of action for the sexual harassment itself. It's ludicrous. But the government's weak response—and it is characteristically weak—to this very sensible and clear recommendation was only to agree to it in principle. The government stated:

The Government will review the Fair Work system once the amendments proposed under Recommendation 16 have been implemented and their impact assessed.

Well, unfortunately for this weak argument, which fails on almost every measure, recommendation 16 isn't relevant to this recommendation. Recommendation 16 relates to proposed amendments to the Sex Discrimination Act, which, in any case, the government only agreed to implement part of and which have no bearing whatsoever on whether sexual harassment is expressly prohibited in the Fair Work Act.

The Kate Jenkins report was all about looking at the big systems which legally govern sexual harassment and are presently failing to prevent it. She made a comprehensive recommendation about how to address that, but this is another part of her recommendations that is being ignored. It could be argued that by adopting a measure that could help stop sexual harassment in the workplace after it has occurred, the 'stop sexual harassment' orders, the government has failed to implement a regulatory change that could help prevent sexual harassment in the workplace from occurring in the first place. The introduction to the government's response explicitly states that prevention must be our focus. That's why we've moved these amendments, to ensure that our workplace laws explicitly state that sexual harassment and sex based harassment are prohibited, as all sensible people would agree they should be.