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

31 August 2021

As other speakers have noted, the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 enacts the government's response to Sex Discrimination Commissioner Kate Jenkins's 2020 Respect@Work report. That outstanding report made 55 recommendations to address widespread and pervasive sexual harassment in the workplace.

It's a sad reality that so many girls and women around us have experienced such harassment while at work. The Human Rights Commission's 2018 sexual harassment survey aptly titled 'Everyone's business' revealed that 39 per cent of women and 26 per cent of men had experienced sexual harassment in the workplace in the previous five years. If we look over a lifetime, 85 per cent of women and 57 per cent of men said they had experienced it at some point in their lives, and most experienced of them had experienced it multiple times. This is not a niche problem; it is very much mainstream. The behaviours the survey reported range from suggestive comments, offensive jokes, indecent messages and insulting or explicit questions to leering, sexually explicit gifts, sexual nagging, inappropriate invitations, unwelcome touching, indecent exposure and attempted or actual sexual assault. That list is not exhaustive. Unfortunately, most incidents like this go unreported, even though they can make an employee feel unsafe or diminished in what should be a professional environment.

Commissioner Jenkins noted in her Respect@Work report that the rate of change since the introduction of the Sex Discrimination Act 1984 more than 35 years ago had been 'disappointingly slow'. We still put the onus on the victim to speak up and take action against their colleagues or employers. That can be extremely difficult to do when you're starting out in a workplace or when you're very much dependent on keeping your job as so many people are. Unless we make concerted efforts to tackle these behaviours at work, nothing will change. Unless we do more to prevent harassment and support employees, this harassment will only continue.

This bill makes some good first steps, such as enabling the Fair Work Commission to issue stop orders for harassment. But I agree with many other senators before me that the bill does not go far enough to implement the recommendations of Commissioner Jenkins's report. In her report, the commissioner says:

Workplace sexual harassment is not inevitable. It is not acceptable. It is preventable.

She also notes that a safe and harassment-free workplace is also a productive workplace. I think that is self-evident to all of us. It is only logical that employers be asked to do more to prevent harassment in the workplace for those reasons.

The Respect@Work report recommended that the Sex Discrimination Act be amended to include a positive duty on employers, except perhaps the very smallest businesses, to take reasonable steps to prevent sex discrimination, sexual harassment and victimisation. It seems the absence of this positive duty means that many employers focus on only complying with work, health and safety laws, which means it is solely up to the victim to initiate action. The government does not appear to consider this positive duty necessary, because there is an implied duty to prevent harassment in WHS laws that require employers to provide a safe workplace and to reasonably avoid health and safety risks. If this is the case, I see no harm, and, in fact, only benefit, in making that duty explicit, telling employers that it is their job to make sure they educate and protect employees from this type of harm, as they do with any other workplace harms, and that they cannot turn a blind eye to sexual and gender based harassment or dismiss it as just a bit of fun.

There are a number of other proposed amendments that take this bill from being a significant first step, which is how the Senate inquiry report described it, to making it a more fulsome piece of legislation that better reflects the Sex Discrimination Commissioner's Respect@Work report. I intend to support all the amendments that enact those missed recommendations, as they are sensible and necessary if we are to get this reform through.

To continue to ensure we stamp out opportunities for abuse and harassment, I foreshadow that I have a second reading amendment that will ask the federal government to work with the states and territories to ensure that employers and managers who routinely hire teenagers under the age of 18 are required to undertake working-with-children checks. This issue was raised during the Senate inquiry, and it struck me as being common sense that we address this loophole to protect teenagers embarking on their first jobs, many of which are in the retail and fast-food sectors.

The SDA told the inquiry that 51 per cent of its female members aged 15 to 17 years of age had experienced sexual harassment in the last five years. That is a shocking number. Teenage boys aren't immune. Fourteen per cent of teen boys also experienced sexual harassment. The union's national assistant secretary, Julia Fox, told the inquiry:

Do parents know that their child, their daughter, is more likely to be sexually harassed at work than not? What environment are we sending our kids into? It's their first job, and this is what happens. Both retail and fast food industries also employ large numbers of children under the age of 18, yet there is no requirement to have a working with children check. A volunteer coach at the netball club or the football club and, indeed, a parent coach is required to have one, but a manager at a McDonald's or a supermarket isn't, yet, they too, are working with children.

I'm not naive enough to think that working-with-children checks will stamp out this problem—not by a long shot—but it does make it more explicit to employers that they have an obligation, a duty of care, to ensure their young employees are safe from sexual harassment while at work.

To conclude, this bill is a very good starting point, but it is not the end point. I will support this bill, and, as I mentioned, I will also support key amendments that enact further recommendations of Commissioner Jenkins's Respect@Work report.

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