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5           Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021

Order of the day read for the adjourned debate on the motion of the Minister for Families and Social Services (Senator Ruston)—That this bill be now read a second time— and on the amendment moved by Senator McAllister :

At the end of the motion, add “, but the Senate:

(a)              notes that:

(i)                    it took tens of thousands of Australian women taking to the street in the March4Justice before the Government responded to the Sex Discrimination Commissioner’s groundbreaking Respect@Work report, and even then the Government would not commit to implementing the 55 recommendations in full,

(ii)                  genuine action on sexual harassment in the workplace includes fully implementing all 55 recommendations of the Respect@Work report to help keep Australians safe from sexual harassment at work,

(iii)                this bill as drafted does not fully implement all legislative recommendations of the Respect@Work report,

(iv)                Australian women are looking at the Prime Minister’s record and assuming this bill is just another political fix,

(v)                  the Sex Discrimination Commissioner herself has described the Federal Government’s weak response to her report as a ‘missed opportunity’, and

(vi)                if the Government refuses to amend the shortcomings of this bill, an Albanese Labor Government will work with the Workplace Sexual Harassment Council, employers, workers, unions and legal experts to finalise and implement stronger laws as a matter of priority; and

(b)              calls on the Government to support amendments to this bill to ensure it fully implements all 55 recommendations of the Respect@Work report”.

Debate resumed.

Question—That the amendment be agreed to—put and negatived. All Opposition and Australian Greens senators, by leave, recorded their votes for the ayes.

Senator Siewert, at the request of 73451927-757c-4ef6-a9bd-35ebc8a34571 Senator Griff, moved the following amendment:

At the end of the motion, add “, but the Senate calls on the Government to work with the states and territories to ensure mandatory working with children checks are introduced for any employer or manager who hires children under the age of 18, such as employers or managers in the retail and fast food sectors”.

Question—That the amendment be agreed to—put and negatived. All Australian Greens and Opposition senators and Senator Patrick, by leave, recorded their votes for the ayes.

Main question put and passed.

Bill read a second time.

The Senate resolved itself into committee for the consideration of the bill.

 

 

 

In the committee

Bill taken as a whole by leave.

Explanatory memorandum : The Attorney-General (Senator Cash) 99aab936-98fb-4d6a-9d15-31f66af49cf0 tabled a supplementary explanatory memorandum relating to the government amendment to be moved to the bill.

On the motion of Senator Cash 99aab936-98fb-4d6a-9d15-31f66af49cf0 the following amendment on sheet QL186 was debated and agreed to:

(1)—Schedule 1, item 28, page 7 (after line 16), after section 49, insert:

49A   Applications for orders to stop sexual harassment

          The amendments of section 789FC made by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 apply in relation to an application made under that section after the end of the 2-month period beginning at the commencement of this section.

Senator McAllister, also on behalf of the Leader of the Australian Greens in the Senate (Senator Waters), moved the following amendments on sheet 1369 revised together by leave:

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

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Schedule 1

The day after this Act receives the Royal Assent.

 

3.  Schedule 2

The later of:

(a) immediately after the commencement of the provisions covered by table item 1; and

(b) immediately after the commencement of the Federal Circuit and Family Court of Australia Act 2021 .

However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.

 

(2)—Schedule 1, item 77, page 19 (after line 9), 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 Court 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 Court 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.

(3)—Schedule 1, page 19 (before line 10), 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;

(4)—Page 23 (after line 11), at the end of the bill, add:

Schedule 2 Amendments contingent on the Federal Circuit and Family Court of Australia Act 2021

Sex Discrimination Act 1984

1  Subsection 47F(1)

Omit “Federal Circuit Court”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

2  Subsection 47G(4)

Omit “Federal Circuit Court”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

Debate ensued.

Question—That the amendments be agreed to—put.

The committee divided—

AYES, 12

Senators—

Brown

Keneally

O’Neill

Siewert

Carr

Lines

Polley

Urquhart*

Hanson-Young

McAllister

Pratt

Watt

 

NOES, 12

Senators—

Canavan

Hughes

O’Sullivan

Reynolds

Cash

Hume

Payne

Smith, Dean*

Colbeck

McKenzie

Rennick

Stoker

* Tellers

The ayes and noes were equal and so the question was negatived.

Senator Waters moved the following amendments on sheet 1371 revised together by leave:

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

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Schedule 1

The day after this Act receives the Royal Assent.

 

3.  Schedule 2

The later of:

(a)    immediately after the commencement of the provisions covered by table item 1; and

(b)    immediately after the commencement of the Federal Circuit and Family Court of Australia Act 2021 .

However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.

 

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

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

Repeal the notes.

3B  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 Court 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.

(3)—Schedule 1, page 7 (after line 22), after item 28, insert:

Federal Circuit Court of Australia Act 1999

28A  Subsection 79(1)

After “arising under”, insert “Division 2 of Part IIB of the Australian Human Rights Commission Act 1986 ,”.

28B  Subsection 79(1) (note)

Before “See section 570”, insert “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

(4)—Page 23 (after line 11), at the end of the bill, add:

Schedule 2 Amendments contingent on the Federal Circuit and Family Court of Australia Act 2021

Australian Human Rights Commission Act 1986

1  Subsection 46PSA(1)

Omit “Federal Circuit Court”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

Federal Circuit and Family Court of Australia Act 2021

2  Before subparagraph 214(1)(b)(i)

Insert:

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

3  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.

Debate ensued.

Question—That the amendments be agreed to—put.

The committee divided—

AYES, 12

Senators—

Brown

Keneally

O’Neill

Siewert

Carr

Lines

Polley

Urquhart*

Hanson-Young

McAllister

Pratt

Watt

 

NOES, 14

Senators—

Canavan

Hughes

Payne

Seselja

Cash

Hume

Reynolds

Small

Colbeck

McKenzie

Ruston

Smith, Dean*

Davey

O’Sullivan

 

 

* Tellers

Question negatived.

Senator Waters moved the following amendment on sheet 1367:

(1)—Schedule 1, item 31, page 8 (lines 6 and 7), omit “to achieve, so far as practicable, equality of opportunity between men and women”, substitute “to achieve substantive gender equality”.

Debate ensued.

Question—That the amendment be agreed to—put.

The committee divided—

AYES, 12

Senators—

Brown

Keneally

O’Neill

Siewert

Carr

Lines

Polley

Urquhart*

Hanson-Young

McAllister

Pratt

Watt

 

NOES, 12

Senators—

Bragg

Colbeck

Payne

Small

Canavan

Hughes

Scarr

Smith, Dean*

Cash

Hume

Seselja

Stoker

* Tellers

The ayes and noes were equal and so the question was negatived.

Senator McAllister moved the following amendments on sheet 1405 together by leave:

(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 in 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:

351A(1)

351A(2)

(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”.

Debate ensued.

Question—That the amendments be agreed to—put.

The committee divided—

AYES, 12

Senators—

Brown

Keneally

O’Neill

Siewert

Carr

Lines

Polley

Urquhart*

Hanson-Young

McAllister

Pratt

Watt

 

NOES, 12

Senators—

Canavan

O’Sullivan

Reynolds

Small

Cash

Payne

Ryan

Smith, Dean*

Colbeck

Rennick

Seselja

Stoker

* Tellers

The ayes and noes were equal and so the question was negatived.

Senator McAllister moved the following amendments on sheet 1382 together by leave:

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

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Schedule 1

The day after this Act receives the Royal Assent.

 

3.  Schedule 2

Immediately after the commencement of the provisions covered by table item 1.

 

(2)—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 and domestic 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 that Act 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

 

 

 

At 12.15 pm : The committee reported progress.