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

Order of the day read for the further consideration of the bill in committee of the whole.

 

 

 

In the committee

Consideration resumed of the bill— and of the amendments moved by Senator McAllister (see entry no. 5) .

Debate resumed.

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, 13

Senators—

Canavan

Hughes

O’Sullivan

Ruston

Cash

Hume

Rennick

Seselja

Colbeck

McKenzie

Reynolds

Smith, Dean

Davey*

 

 

 

* Tellers

Question negatived.

Senator McAllister moved the following amendments on sheets 1381, 1385 and 1399 together by leave:

Sheet 1381

(1)—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 ).

(2)—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

(3)—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).

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

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

Insert:

Part 3-1A

 

 

 

 

12A

378D(7)

(a) a person affected by the contravention;

(b) an employee organisation;

(c) an employer organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit Court;

(c) an eligible State or Territory court

60 penalty units

(5)—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.

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

49A  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.

Sheet 1385

(1)—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.

(2)—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 Court 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.

Sheet 1399

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

(2)—Schedule 1, item 5, page 3 (line 22), omit “or sexual harassment”, substitute “, sexual harassment or harassment on the ground of sex”.

(3)—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 ).

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

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

(5)—Schedule 1, item 11, page 4 (line 29), omit “ or sexually harassed ”, substitute “ , sexually harassed or harassed on the ground of sex ”.

(6)—Schedule 1, item 12, page 4 (line 31), omit “or sexually harassed”, substitute “, sexually harassed or harassed on the ground of sex”.

(7)—Schedule 1, item 13, page 5 (line 2), omit “or sexually harassed”, substitute “, sexually harassed or harassed on the ground of sex”.

(8)—Schedule 1, item 14, page 5 (line 4), omit “or sexual harassment”, substitute “, sexual harassment or harassment on the ground of sex”.

(9)—Schedule 1, item 15, page 5 (line 6), omit “ or sexually harassed ”, substitute “ , sexually harassed or harassed on the ground of sex ”.

(10)—Schedule 1, item 16, page 5 (line 8), omit “or sexually harassed”, substitute “, sexually harassed or harassed on the ground of sex”.

(11)—Schedule 1, item 17, page 5 (line 10), omit “or sexual harassment”, substitute “, sexual harassment or harassment on the ground of sex”.

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

(13)—Schedule 1, item 19, page 5 (line 14), omit “ or sexual harassment ”, substitute “ , sexual harassment or harassment on the ground of sex ”.

(14)—Schedule 1, item 20, page 5 (line 16), omit “or sexually harassed”, substitute “, sexually harassed or harassed on the ground of sex”.

(15)—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 ”.

(16)—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.

(17)—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.

(18)—Schedule 1, item 23, page 5 (line 25), omit “ or sexual harassment ”, substitute “ , sexual harassment or harassment on the ground of sex ”.

(19)—Schedule 1, item 24, page 6 (line 5), omit “either or both”, substitute “any or all”.

(20)—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;

(21)—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.

(22)—Schedule 1, item 25, page 6 (line 29), omit “ or sexual harassment ”, substitute “ , sexual harassment or harassment on the ground of sex ”.

(23)—Schedule 1, item 26, page 6 (line 31), omit “or sexually harassed”, substitute “, sexually harassed or harassed on the ground of sex”.

(24)—Schedule 1, item 27, page 6 (line 33), omit “or sexual harassment”, substitute “, sexual harassment or harassment on the ground of sex”.

(25)—Schedule 1, item 28, page 7 (after line 22), 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.

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, 13

Senators—

Canavan

Hume

Reynolds

Small

Cash

McKenzie

Ruston

Smith, Dean

Colbeck

O’Sullivan

Seselja

Stoker

Davey*

 

 

 

* Tellers

Question negatived.

Senator McAllister moved the following amendments on sheet 1432 together by leave:

(1)—Schedule 1, item 60, page 14 (after line 25), 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.

(2)—Schedule 1, page 14 (line 26), omit “subsection (1)”, substitute “subsections (1) and (1A)”.

Debate ensued.

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

The Leader of the Australian Greens in the Senate (Senator Waters) moved the following amendments on sheet 1433 together by leave:

(1)—Schedule 1, page 19 (before line 10), before item 78, insert:

77A  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

(2)—Schedule 1, page 20 (after line 8), 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.

(3)—Schedule 1, page 20 (after line 12), 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.

Debate ensued.

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

Senator Waters moved the following amendment on sheet 1434:

(1)—Schedule 1, item 60, page 14 (line 19), omit “seriously”.

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—

Brockman

Colbeck

McKenzie

Scarr

Canavan

Hughes

Ruston

Seselja

Cash

Hume

Ryan

Smith, Dean*

* Tellers

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

Senator Waters moved the following amendments on sheet 1373 together by leave:

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

gender identity has the same meaning as in the Sex Discrimination Act 1984 .

(2)—Schedule 1, item 6, page 3 (after line 26), after the definition of miscarriage , insert:

sex characteristics means a person’s physical features relating to sex, and includes:

                       (a)  the person’s genitalia and other sexual and reproductive parts of the person’s anatomy; and

                      (b)  the person’s chromosomes; and

                       (c)  the person’s hormones and secondary physical features emerging as a result of puberty.

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

9A  Subsection 153(1)

After “sex,”, insert “gender identity, sex characteristics,”.

9B  Subsection 195(1)

After “sex,”, insert “gender identity, sex characteristics,”.

9C  Subsection 351(1)

After “sex,”, insert “gender identity, sex characteristics,”.

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

12A  Paragraph 578(c)

After “sex,”, insert “gender identity, sex characteristics,”.

(5)—Schedule 1, page 5 (after line 4), after item 14, insert:

14A  Paragraph 772(1)(f)

After “sex,”, insert “gender identity, sex characteristics,”.

Debate ensued.

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

Senator Waters moved the following amendments on sheet 1427 together by leave:

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

gender identity has the same meaning as in the Sex Discrimination Act 1984 .

intersex status has the same meaning as in the Sex Discrimination Act 1984 .

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

9A  Subsection 153(1)

After “sex,”, insert “gender identity, intersex status,”.

9B  Subsection 195(1)

After “sex,”, insert “gender identity, intersex status,”.

9C  Subsection 351(1)

After “sex,”, insert “gender identity, intersex status,”.

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

12A  Paragraph 578(c)

After “sex,”, insert “gender identity, intersex status,”.

(4)—Schedule 1, page 5 (after line 4), after item 14, insert:

14A  Paragraph 772(1)(f)

After “sex,”, insert “gender identity, intersex status,”.

Debate ensued.

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

Bill agreed to and reported with an amendment.

 

 

 

On the motion of the Attorney-General (Senator Cash) the report from the committee was adopted and the bill read a third time.