In a matter of weeks, the Australian Human Rights Commission will release their latest national survey on sexual harassment in Australian workplaces. The last report, from 2018, was a very challenging read. It shows that when we discuss sexual harassment in the workplace we’re not looking at a small or isolated problem that only affects the occasional person in Australia—that Australia has a deep and wide problem. The 2018 report found that in the previous five years almost two in five women and just over one in four men had experienced sexual harassment in the workplace. Let us be clear what this means. This means that in order to earn an income, to contribute to a workplace, to do their job, more than a quarter of Australian workers are having to put up with unwanted sexual misconduct.
The Respect@Work report told thoroughly shocking stories about what people have had to endure at work. One woman spoke about three incidents in her career in three different places in which she worked: being touched by her manager in a storeroom as a 16-year-old supermarket worker; being locked in a toilet cubicle in her mid-20s with a colleague, who demanded to be kissed; and being publicly groped and insulted by the CEO at a work function some years later. One police officer told a deeply distressing story about having to lock herself in a car at night when on an away job because she’d been sold to a group of detectives who expected to be able to mistreat her. A hotel worker spoke about working as a butler. Her job entailed time spent in guests’ rooms to serve them meals and unpack their luggage. She said:
… a female co-worker was sexually assaulted by a guest while unpacking their luggage … she was not the only one of her co-workers that had been sexually harassed by a guest while conducting their required tasks in their rooms.
A man named Barry spoke to the commission about his experience working in a rural town:
… one evening while giving his male boss a lift home, his boss said he was lonely and placed his hand on Barry’s upper thigh. Barry respectfully declined the advance. Barry told the Commission that the following day, he was told that his services were no longer required. Barry said he was unable to find another job as his former boss would not provide him with a reference.
These are just four stories among hundreds of thousands that could be told.
The 2018 Human Rights Commission report found that the majority of people who were sexually harassed at work did not formally report their experience or seek support or advice, with many victims believing that a formal complaint would be viewed as an overreaction or that it was easier to stay quiet. Fewer than one in five people, 17 per cent, made a formal report or complaint in relation to workplace sexual harassment. There’s something very wrong with a situation in which this many people experience sexual harassment in the workplace and do not feel that they’re able to do anything about it, either because they see no point or because they fear reprisal or the cost involved in taking action.
As one woman said to Respect@Work:
For a long time I thought that what happened to me was normal—it’s just what happens to young women in the workplace. You learn to ignore it as best you can and move on … But nowadays I think that, even if that [is] the case, it shouldn’t be.
Let me be clear: there is no place for sexual harassment in Australian society or Australian workplaces. By and large, it’s men who are the perpetrators of harassment in the workplace, and the message must be sent loudly and clearly: enough is enough. This has to stop. That’s why the coalition took action to address these issues when we were in government. We set the agenda to change the culture of Australian workplaces so that we could begin to see workplaces being consistently free from sexual harassment and discrimination. Today’s bill builds on the leadership of the coalition government.
In 2018 we announced an Inquiry into Sexual Harassment in Australian Workplaces to ensure we more comprehensively understood what was taking place and to develop a pathway for change. That landmark inquiry was world leading, and I want to pay tribute to my former colleague the Hon. Kelly O’Dwyer, who commenced that inquiry along with Commissioner Kate Jenkins. A few years on, we’re used to these topics being front of mind, but I want to pay tribute to those two women, who made sure we didn’t turn a blind eye any longer. They took a stand and they are the reason we can debate these matters with clarity and conviction. I’m talking not about a small or isolated problem but about something that has to be given serious attention. One might think that because so often sexual harassment occurs quietly, in hidden moments in workplaces, in underhanded and malicious ways, we can easily miss it or allow ourselves to overlook it. What Kate Jenkins has shown us in recent years is that this is a problem that is pervasive and we all have a responsibility to change the culture of workplaces.
The inquiry commissioned by Kelly O’Dwyer and undertaken by Kate Jenkins resulted in Respect@Work, a substantial report that made 55 recommendations to our government. In response, when we were in government we released the Roadmap for Respect, which responded to the report and also outlined a long-term plan for preventing and addressing sexual harassment. That road map included agreeing to—in full, in principle or in part—or noting all 55 recommendations of the Respect@Work report, and it focused particularly on prevention.
Our government provided over $64 million over the four years in the 2021-22 federal budget to support the implementation of the Roadmap for Respect. In September last year we legislated many of the recommendations in Respect@Work. The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 expressly prohibited sex based harassment. It made it clearer than it has ever been in Australian law that sex based harassment is not acceptable. We corrected gaps in the legislation to make sure all workers were respected. We made clear in the sex discrimination act that MPs, judges and public servants would all be subject to the sex discrimination act. This means that people are protected from sexual harassment regardless of the field in which they work or for whom they work.
We established the Respect@Work Council, which brings together leaders from key government regulators and policymakers responsible for sexual harassment policies and complaints to improve coordination, consistency and clarity across existing legal and regulatory frameworks. We also increased the length of time that people have to make a complaint from six months after the incident to 24 months. We made changes to the Fair Work Act to make it clear that being a perpetrator of sexual harassment is a valid reason for dismissal. This was an essential reform, as it made it possible for employers to dismiss a worker who sexually harassed another worker without the risk of them bringing an unfair dismissal claim in response. It was essential that employers respond swiftly when their employee’s behaviour is unacceptable.
The bill before us today is another piece of that puzzle. It follows on from the work that we did in government. It picks up on particular issues that were given initial time for consideration and consultation. I am pleased to say that with work having progressed we support the principle behind this bill. There is much in the bill that we can support.
The most significant thing the bill does is to put responsibility on workplaces, not simply to react to complaints of harassment or discrimination. We know that many people won’t ever make a complaint. It requires workplaces to act proactively to create an environment in which sexual harassment and discrimination is not tolerated. I would have much preferred that this legislation and this debate were not required, but the continual evidence of widespread sexual harassment in workplaces indicates that the bar has to be raised higher. Workplaces need to actively make sure they provide a safe environment for their employees.
However, there are a few measures that we believe require some change in order to make it easier for businesses to comply and achieve the intention behind this bill. We’re not seeking to see boxes ticked; we’re not seeking to burden workplaces unnecessarily; but we are seeking to ensure workplaces are safe places for all Australians. If employers can’t easily fulfil the obligation the legislation places on them and an undue additional regulatory burden is imposed, we will create more problems than we solve. We must take a path that is achievable and will lead to tangible change.
I should note that this bill is the subject of a Senate committee inquiry. That committee is not due to report until 3 November, so we haven’t had the benefit of the consideration of this bill by that committee. But we have had the benefit of reading a number of the submissions to that committee. From those submissions the coalition will provide some helpful amendments to ensure the good aims behind this legislation are better achieved. As such, I will move the amendment that has been circulated in my name.
The bill proposes to insert section 28M into the Sex Discrimination Act, which would make it unlawful for a person to subject another person to a workplace environment that is hostile on the grounds of sex. This concept already exists under discrimination law, although the provision is drafted broadly. We propose an amendment to align the provision with existing case law. Section 28M defines too broadly what it means to subject the person to a workplace environment that’s hostile on the grounds of sex. In particular, the proposed new section does not connect the inappropriate conduct clearly enough with the person who would be the complainant. The provision makes it unlawful for a person to subject another person to a workplace environment that is hostile on the ground of sex. The issue with the way the provision is drafted is that there isn’t a requirement for the first person or the second person to actually be in the workplace at the same time or for there to be a temporal connection between the conduct and the harm. For instance, there are businesses which operate on many different sites in different units. It’s important that the complaint be related to the activity that goes on at the site or unit in which a person works. In relation to the temporal connection, the Australian Chamber of Commerce and Industry has pointed out in their submission:
… from a practical perspective, there are unique circumstances in which an extended lapsed period of time could unfairly punish employers, even where they have taken action to address workplace hostility. For example, consider a scenario in which there exists a cultural problem of sexism at a workplace. If an employer takes action to rectify the situation and ensures that the workplace is no longer “offensive, intimidating or humiliating” to prospective female employees, but a female employee is employed at the workplace at a later date, hears about the prior conduct and is subsequently intimidated, it is likely that proposed section 28M is enlivened. Intimidating conduct has been engaged in and an intimidated person has been in the workplace after the conduct occurred, although the two events were not contemporaneous and there is otherwise no connection between the events and the person.
Our amendment would amend section 28M to insert ‘in relation to’ and to delete ‘after the conduct occurs’, to bring the provision into line with existing case law.
Secondly, the bill proposes to insert section 47C into the Sex Discrimination Act to establish a positive duty on employers to take reasonable and proportionate measures to eliminate unlawful discrimination on the basis of sex, including sexual harassment within a workplace, and gives the Human Rights Commission enforcement powers, as well as powers to inquire into systemic discrimination.
Employers are already subject to significant obligations to prevent sexual harassment in the workplace—for example, section 106 of the Sex Discrimination Act makes employers vicariously liable for the actions of their employee or agent. It’s already true that an employer can only avoid liability where they can show they took all reasonable steps to prevent an employee or agent from doing those acts.
Furthermore, as a Safe Work Australia have pointed out in their submission, there has been extensive work done since Respect@Work to address sexual harassment through relevant legal frameworks, including via workplace health and safety policy makers and regulators. I will quote from their submission:
The model WHS laws establish a comprehensive and robust legal framework to protect workers from risks to their health and safety while at work, including from sexual harassment. The model WHS laws’ main objective is to provide a balanced and nationally consistent framework to secure the health and safety of workers. This includes protecting workers and other persons against harm to their health and safety by eliminating or minimising risks arising from work. The model WHS laws aim to provide all workers in Australia with the same standard of health and safety protection regardless of the work they do or where they work. The laws apply broadly to all organisations regardless of size or industry.
The model WHS laws include a positive duty to eliminate or minimise risks to both physical and psychological health from sexual harassment so far as it is reasonably practicable. There’s an appropriate concern that with having two different ways in which a positive duty is imposed but with a slightly different framework and drafting in place there’s the potential for confusion and duplication for employers. Again, to quote Safe Work Australia:
The proposed amendment to the SD Act impose a positive duty on PBCUs in relation to the prevention of workplace sexual harrassment. However, it is drafted in different terms to the model WHS laws, which also imposes a positive duty on PCBUs to prevent workplace sexual harassment. Because of these drafting differences, the scope and application of each positive duty may be different. It is not yet clear whether this will be of significance in practice, but it seems to us that it at least has the potential to cause confusion and uncertainty for duty holders. In our view, there may be benefit in more closely aligning the two frameworks to reduce this possibility.
The second issue in relation to section 47C is outlined by the submission of the Australian Chamber of Commerce and Industry, who said:
… section 47C would require employers and PCBUs to take measures to eliminate “as far as possible” certain conduct. Under work health and safety law, the obligation imposed on PCBUs is to ensure the health and safety of their workers “as far as is reasonably practicable”. The widespread use of “reasonably practicable” under work health and safety law has provided PCBUs with a substantial degree of understanding about the meaning of that threshold. There is also extensive case law about the meaning of these words which offers further clarity.
They quote from the High Court in Slivak v Lurgi and the test applied by Justice Gaudron of what reasonably practicable means. They say:
The new phrase “as far as possible” does not share such clarity—
of as ‘reasonably practicable’. We would adopt that view. And our amendment to section 47C, with the insertion of ‘as far as reasonably practical’, will more closely align the positive duty created in this bill with the existing obligations on employers under the work health and safety model law. This is essential, as we want to achieve the objectives of this bill without creating unnecessary additional burdens on business, particularly small business.
Another area of concern regarding the bill is that it seeks to significantly expand the role of the Human Rights Commission. Let me be very clear: I have great respect for the Sex Discrimination Commissioner Kate Jenkins and the work that she’s done in this space. My concern, again, is about duplication of processes and that workplaces could find themselves being subject to multiple inquiries through multiple bodies simultaneously. With the Human Rights Commission having enforcement functions in relation to the positive duty the same matters could be brought before the work health and safety regulator and the Human Rights Commission at the same time.
I’m also concerned that the Human Rights Commission’s conciliation role will be compromised if they’re required to conduct enforcement action in relation to the positive duty as well as to provide conciliation for the employee bringing forth the complaint. Serving both functions in relation to the same complaint would not be good practice. In order to avoid duplication in enforcement powers in relation to the positive duty, in order to protect the conciliation role of the commission and in order to prevent the duplication of inquiry powers which could see businesses or sectors subject to inquiry by multiple government agencies at the same time our amendment says that the Fair Work Ombudsman should hold enforcement powers in relation to the positive duty and the powers of inquiry in relation to systemic unlawful discrimination. These are powers and functions that are aligned with the existing powers and functions of the Fair Work Ombudsman. The functions of the Fair Work Ombudsman are provided for in section 68(2) of the Fair Work Act and include monitoring compliance with the Fair Work Act and fair work instruments, investigating conduct contrary to the Fair Work Act and fair work instruments, and any other functions conferred on the ombudsman by any other legislation.
The Fair Work Ombudsman can undertake workplace investigations. In relation to adverse action, it can conduct investigations. Where an investigation finds the employer has or had discriminatory practices that are linked to adverse actions for employees or prospective employees, it can take appropriate enforcement actions. Enforcement actions can include issuing compliance notices, enforceable undertakings or commencing proceedings in a court or before the Fair Work Commission. This extends to instituting proceedings for breach of civil remedy provisions, including those that prohibit adverse action, coercion or undue influence in relation to workplace rights, and to adverse action or coercion in relation to industrial activities and those that prohibit contraventions of the National Employment Standards, modern awards, enterprise agreements or national minimum wage orders.
In relation to adverse action, this includes workplace discrimination on the basis of various protected attributes including sex, sexual orientation and marital status. The Fair Work Ombudsman notes that bullying and harassment, including sexual harassment, can in some circumstances amount to unlawful discrimination, and then falls within its powers. So you can see the link between the role that the Fair Work Ombudsman already provides and the sense in having these matters dealt with by the Fair Work Ombudsman.
On the Fair Work Ombudsman’s broader powers in relation to industries: it can conduct inquiries to monitor compliance within an industry, region or supply chain, even where there’s no specific allegation of noncompliance with workplace laws; in response to trends in data that indicate systemic non-compliance in particular businesses or industries, as is posited in this legislation; and in response to issues raised in the media and concerns raised with the Fair Work Ombudsman that are directly in the public interest. That is why we support these matters being sent to the Fair Work Ombudsman.
I want to move to schedule 4, which deals with representative actions. Schedule 4 of the bill seeks to amend the Human Rights Commission Act to make it easier for unions and other representative groups to bring representative claims to the Federal Court. We believe that this schedule should be deleted. The amendment would allow bodies to commence legal proceedings on behalf of other parties rather than the aggrieved person taking the matter forward themselves. I want to draw the attention of the House to the work of the Australian Chamber of Commerce and Industry that argued:
Representative groups are not prohibited from providing financial or legal support to parties pursuing a representative proceeding in the courts. Rather, they are simply prevented from commencing the proceeding on their behalf. It’s not clear how allowing trade unions to commence legal proceedings on behalf of aggrieved persons will lead to better outcomes for these persons, especially in light of the support representative groups can already provide.
Fundamentally, litigants in representative actions need to be aggrieved persons, not bodies that represent, or merely purport, to represent their interests. This is how the existing avenue for class actions rightly operates. The interests of representative bodies do not always align with those who they represent. Allowing these bodies to commence and run representative actions on their behalf can lead to the aggrieved persons’ interests being neglected in favour of other motives, such as a desire for a more lucrative settlement or political objectives. Further, representative bodies are not those whose reputations, finances and relationships, are vulnerable during litigation. Allowing representative bodies to be the party instructing lawyers on the running of legal proceedings risks the pursuit of interests which are unrelated to those of the affected individuals.
There are sufficient mechanisms to enable representative proceedings in the Federal Court under part IVA of the Federal Court of Australia Act 1976. Further loosening of these rules in favour of unions who can pursue their own agendas, rather than those of the complainant, is not warranted. Our amendment proposes to delete schedule 4 and leave the law as it stands in relation to representative actions.
In relation to costs in schedule 5, the bill inserts a cost-neutral arrangement into the Human Rights Commission Act. This means parties are expected to bear their own costs, with the courts having power to make an alternative determination considering the factors in the legislation, including: financial circumstances of each party to the proceedings; the conduct of the parties, including conduct dealing with the commission; whether any parties have been wholly unsuccessful; whether any parties made an offer in writing to settle; whether the subject matter of the proceedings involves an issue of public importance or any other matter that the court considers relevant.
Again, let me draw the attention of the House to the words of the Australian Chamber of Commerce and Industry:
59. There is no obvious reason why proceedings brought with… respect of discrimination claims ought to depart from the traditional rule in Australia that costs follow the event, with broad discretion already conferred upon the courts to vary the application of this rule depending on the particular circumstances. This existing procedure, developed across centuries of the evolution of the common law, offers several critically important benefits which should not be discarded.
60. First, costs awards disincentivise unmeritorious litigation that can be significantly costly for all parties involved. Allowing litigation to be commenced without the risk of indemnifying the other party for their legal costs risks an increase in unmeritorious, vexatious and speculative claims being made. Of course, the courts will retain discretion to restrict the making of such claims; however often the ulterior purpose of the litigation will not be plain on the facts. Where it is more discrete, the risk of paying the opposing party’s costs deters such litigation from being brought.
We think discretion as to costs best sits with the courts, and we endorse the views of the Australian Chamber of Commerce and Industry in relation to the place of costs orders in the industrial relations system. Our amendments will remove schedule 5 of the bill and leave costs determinations to the discretion of the court.
The other amendment that we seek to make is to retain equality of opportunity in the objects clause of the act. We believe equality of opportunity should be retained because equality of opportunity offers a state of fairness in which individuals are treated equally. People are given the same opportunities, and it is up to them to exercise their talents and their abilities in order to achieve the things that they wish to pursue. We think that this is a fundamental principle that should be retained in the objects of the act.
The changes proposed in this bill with these amendments do important work in ensuring Australian workplaces are not hostile to either men or women on the grounds of sex. As a community, it’s essential that we draw a line under the unacceptable behaviour in workplaces and beyond that has been too common for too long. In doing so, we must ensure that businesses are supported to meet the new obligations under the bill. I welcome the 12-month period between assent and commencement. This will be essential time for businesses to learn about the new obligations placed on them to develop new protocols and policies and to train their staff.
In this point—and this is probably the most important thing I’m going to say in relation to this bill—the role of the Australian Human Rights Commission is essential. The Human Rights Commission is responsible for developing guidance materials and must ensure materials are clear and simple for all businesses to understand. It’s important these obligations apply to all workplaces, but, as noted in the explanatory memorandum, a big bank or other corporation with a human resources department will have more resources at its disposal to ensure it’s compliant, particularly compared to a small business such as a corner store which has only a few staff.
The guidance materials must meet the needs of different types of businesses too. The risks businesses must manage under this act and under the work health and safety framework vary significantly across industries. As the Housing Industry Association noted in their submission, it’s extremely difficult for a business to control the various actors on a worksite—the various trades, subcontractors, clients, state based regulators, union officials, the owner sometimes, and others. Similarly, in a business like a pub, a person creating an unsafe work environment for a second person may be an intoxicated patron rather than an employee of the business. The guidelines will need to address the full range of different businesses and the circumstances in which they find themselves. Guidance from the Human Rights Commission must meet the needs of business, based on the different types of workplaces that exist across Australia and the different types of businesses that will be subject to this bill. I call on the Human Rights Commission to ensure that they have given adequate support to businesses to comply with this.
We must continue to work as a society to continually improve and to ensure that everyone has an equal opportunity to succeed and that our workplaces are set up in such a way that someone who works hard, regardless of their background, can reach the highest of heights, because we should not tolerate sexual harassment in the workplace or anywhere else.