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senate vote 2021-09-01#1
Edited by
mackay staff
on
2021-09-03 09:40:10
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Title
Description
- The same number of senators voted for and against [amendments](https://www.openaustralia.org.au/senate/?gid=2021-09-01.25.1) introduced by NSW Senator [Jenny McAllister](https://theyvoteforyou.org.au/people/senate/nsw/jenny_mcallister) (Labor), which means they failed. The amendments were a joint Labor and Greens initiative that would have inserted a positive duty
- ### What is the purpose of the amendments?
- Senator McAllister [explained that](https://www.openaustralia.org.au/senate/?gid=2021-09-01.25.1):
- > *... right now the tool we rely on to get workplaces to become safer is an individual making a complaint. When surveyed, Australian women overwhelmingly say, yes, they have been sexually harassed at work, often in the last 12 months. The numbers are extraordinary. Most of them don't make a complaint ... Women correctly apprehend that their careers, their livelihoods and their reputations are at stake when they are the complainant, and most women choose to remain silent. And the conclusion we should draw from all of those data points is that this is not an effective mechanism to make our workplaces safer ... It's on that basis that Labor has concluded that we do wish to move here amendments to insert a positive duty obligation onto employers, consistent with the [recommendation made by Commissioner Jenkins](https://humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020).*
- >
- > *... We are aware that we need to make sure that a positive duty does not create an unreasonable burden on employers, so the way our amendment is drafted will ensure that, consistent with recommendation 17, the measures required to fill a positive duty must be reasonable and proportionate, taking into account factors that include the size of the person's business or operations, the nature and circumstances of the business and operations, the person's resources, the person's business and operational priorities, the practicability and cost of the measures, and all other relevant facts and circumstances.*
- ### Amendment text
- Available on [sheet 1369](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/display.w3p;query=Id%3A%22legislation%2Famend%2Fs1306_amend_d640b51d-1b5e-4ebe-b738-48f151aff73f%22;rec=0).
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senate vote 2021-09-01#1
Edited by
mackay staff
on
2021-09-03 09:17:44
|
Title
Bills — Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021; in Committee- Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 - in Committee - Positive duty amendment
Description
<p class="speaker">Michaelia Cash</p><p>In the first instance, I table a supplementary explanatory memorandum relating to the government amendment to be moved to this bill, and I also therefore seek leave to move government amendment on sheet QL186.</p><p>Leave granted.</p>- The same number of senators voted for and against [amendments](https://www.openaustralia.org.au/senate/?gid=2021-09-01.25.1) introduced by NSW Senator [Jenny McAllister](https://theyvoteforyou.org.au/people/senate/nsw/jenny_mcallister) (Labor), which means they failed. The amendments were a joint Labor and Greens initiative that would have inserted a positive duty
- Senator McAllister [explained that](https://www.openaustralia.org.au/senate/?gid=2021-09-01.25.1):
- > *... right now the tool we rely on to get workplaces to become safer is an individual making a complaint. When surveyed, Australian women overwhelmingly say, yes, they have been sexually harassed at work, often in the last 12 months. The numbers are extraordinary. Most of them don't make a complaint ... Women correctly apprehend that their careers, their livelihoods and their reputations are at stake when they are the complainant, and most women choose to remain silent. And the conclusion we should draw from all of those data points is that this is not an effective mechanism to make our workplaces safer ... It's on that basis that Labor has concluded that we do wish to move here amendments to insert a positive duty obligation onto employers, consistent with the [recommendation made by Commissioner Jenkins](https://humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020).*
- >
- > *... We are aware that we need to make sure that a positive duty does not create an unreasonable burden on employers, so the way our amendment is drafted will ensure that, consistent with recommendation 17, the measures required to fill a positive duty must be reasonable and proportionate, taking into account factors that include the size of the person's business or operations, the nature and circumstances of the business and operations, the person's resources, the person's business and operational priorities, the practicability and cost of the measures, and all other relevant facts and circumstances.*
- ### Amendment text
- Available on [sheet 1369](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/display.w3p;query=Id%3A%22legislation%2Famend%2Fs1306_amend_d640b51d-1b5e-4ebe-b738-48f151aff73f%22;rec=0).
<p>I move the amendment:</p><p class="italic">(1) Schedule 1, item 28, page 7 (after line 16), after section 49, insert:</p><p class="italic">49A Applications for orders to stop sexual harassment</p><p class="italic">The amendments of section 789FC made by the <i>Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021</i> 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.</p><p>This amendment, as I've already articulated in my summing up speech, gives effect to the recommendation of the Senate Education and Employment Legislation Committee report on the bill, by delaying applications being made under the changes to the bullying provisions in the Fair Work Act until two months after the bill commences. This recommendation was in response to concerns raised by the Fair Work Commission in its submission to the Senate committee about its capacity to successfully implement the changes to its antibullying jurisdiction, given it anticipates an increase in applications when the changes take effect. The committee obviously took on board that feedback from the Fair Work Commission and made the recommendation, and the government is more than happy to move that.</p> <p class="speaker">Jenny McAllister</p><p>I note that this is in fact the only amendment that the government will be seeking to move during this period of committee consideration. I think that's just worth reflecting on for a moment, because the sorry history of this legislation is this. The government sat on a report that it had commissioned into sexual harassment in Australian workplaces. It commissioned this report and then it sat on it for a full year—at least a year, in fact, because all the indications are that an early draft was given to them even months before it was formally tabled.</p><p>Now, Mr Porter, for reasons he has never bothered to explain, didn't think that this was a matter worthy of his attention, and, in fact, when I asked questions of the department about this in Senate estimates, they rather shamefacedly revealed—and I feel for the department, actually—that, in an entire year, the person that Mr Morrison thought suitable to be the Attorney-General had not bothered to speak to Commissioner Jenkins about her work. Mr Porter has never actually explained why it was that he took so little interest in sexual harassment in Australian workplaces—never bothered; never put that on the record. But I think many of us would have our own theories about why this was of so little interest to Mr Porter.</p><p>Finally, scandal after scandal after scandal has forced this government to engage with the questions that face Australian women. Tens of thousands of women mobilised around the country to demand that their interests be observed—to demand that the government start to engage with the reality that every woman in this country understands: that Australian women's working lives are not equal; that Australian women are subject to too much violence, at home and at work; that there is too much discrimination and that people have had enough. What was Mr Morrison's response to all of this? It was to hide inside. It was to refuse to engage with the thousands of women who'd made their way to the grounds of this place to voice their dissent and their concern that the government does not respond to their interests. Scandal after scandal after scandal—and we finally get a response to the <i>Respect@Work</i> report.</p><p>As to the government's response, their headline claim was that they accepted all 55 recommendations, but, when we actually go through the implementation road map, that's not what's there—that's not what is there at all. We see mealy-mouthed responses: 'accept in principle'; 'note'—note, but insert caveat which in fact negates the subject of the recommendation from Commissioner Jenkins. And then the legislation before us does not even fulfil the promises that are made in the road map.</p><p>So my question to the minister is this. Why have so few of Commissioner Jenkins's recommendations actually been reflected in this legislation? Why do Australian women have to wait?</p> <p class="speaker">Michaelia Cash</p><p>The government agreed to—in full, in principle or in part—or noted all 55 recommendations of the <i>Respect@Work</i> report in the Roadmap for Respect. Only 15 of the 55 recommendations proposed specific amendments to federal legislation; many of the remaining recommendations were directed to state and territory governments, independent agencies, regulators and the private sector., recognising the whole-of-community approach required for real change outlined in Sex Discrimination Commissioner Kate Jenkins's <i>Respect@Work</i> report.</p><p>In addition to developing the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, the Commonwealth, or the Morrison government, has already taken significant steps to implement other recommendations from the <i>Respect@Work</i> report. These include establishing the Respect@Work Council, to improve coordination, consistency and clarity across the legal and regulatory frameworks; and progressing work on recommendations requiring joint action through intergovernmental meetings such as national cabinet, the meeting of attorneys-general, the Women's Safety Taskforce and the meeting of work health and safety ministers.</p><p>In the 2021-22 budget, we've committed over $21.5 million to implementing the Roadmap for Respect. We are also, as you will be aware, amending the Fair Work Regulations in response to recommendation 31 of the <i>Respect@Work</i> report. The bill itself makes key amendments that would immediately strengthen the overarching legal framework with respect to sex discrimination and harassment. The government has prioritised those reforms which could be implemented quickly and easily. More complex reforms, as I have already articulated in my summing-up speech, will require additional consideration and consultation. This was actually recognised by the committee, who recommended that the bill be passed.</p><p>The amendments in the bill are informed by extensive consultation, including targeted consultation on a draft version of the bill prior to its introduction, public consultation by the Senate Education and Employment Legislation Committee and extensive public consultation undertaken by the Australian Human Rights Commission in developing the <i>Respect@Work</i> report.</p> <p class="speaker">Deborah O'Neill</p><p>I'm sorry that I need to make this kind of contribution at this point in time, because there was so much promise, so much hope and so much passion and energy for a wholesale change to the outcomes for Australian women at work. I stand as a female member of the great Australian Labor Party, on the back of the history of this great party, to make safe workplaces a reality in this country. The Australian Labor Party, for its entire 120-year history, has been about the lives of workers and their protection in the workplace. It might have been shearers and miners who gave breath to our extraordinary political force so long ago, and I dare say they could scarcely imagine the kind of society successive generations have created, but they could see the common, strong thread of workers' rights that links us back to those who sat under that Tree of Knowledge.</p><p>I want to point to a very important, relatively short document that sits at the back of the report from the Senate Education and Employment Legislation Committee on the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021. It's a shorter document than I hoped it might be, but the fact is that the inquiry into this very important bill was unbelievably short. After the government, through Christian Porter, delayed any response to this remarkable report here—hundreds and hundreds of pages, with thousands of consultations clearly setting out a road map, of a kind, that was indicated to this government—we had no action. When we finally got to the point where something was to be done—and I will acknowledge that Senator Cash, in her new role, actually blew the dust off the government's copy of this and got on with the job of doing something—this government has been found wanting. The short inquiry forced contributors to provide their response to this parliament in the shortest of time. The short inquiry—truncated to two days—drew from witnesses evidence that indicated that they had barely had time to provide a response to the government legislation. In fact, the government prompted action when we had received, after the inquiry, confidential reports—I won't reveal them—from people and peak bodies that had wanted to participate but were so cut short in their capacity to respond that they ended up not being able to fully interrogate the piece of legislation that the government is advancing. So we have to characterise what's happened here as a 'do nothing' response and then a 'let's get this sorted in a hurry' response. Neither of those actually leads to proper, careful legislation.</p><p>Labor, in the course of this debate this morning, will move a significant number of amendments that I encourage the Greens and other senators on the crossbench to really have a good look at and support, because this moment is not going to come again. After the report, there was no action, and then there was this legislation. The fanfare that's going to go with this will say: 'Basically, the government accepted all 55 recommendations. It's all good here. We've sorted the problem of sexual discrimination and harassment at work.' That's what the headline takeaway is going to be: 'The government did this.' But they didn't. They haven't.</p><p>At the back of the committee report that I am referring to there is a dissenting report of equal length from Labor senators. For people who really want to know what the government are doing, or the lack of what they're doing, that dissenting report will give them the outline of what's missing. Senator Cash, in her contribution in response to Senator McAllister's question, indicated again that there was support for the 55 recommendations, but Senator McAllister has already well articulated the reality that it was a mealy-mouthed response to those 55 recommendations, and participants in the inquiry made it very, very clear that the government is not accepting all 55 recommendations. Let that be very clear. This document, so carefully constructed by Kate Jenkins, the Sex Discrimination Commissioner, telling the stories of Australians who have experienced sexual harassment and who came forward and retraumatised themselves on many occasions to retell their stories, is not being given full voice and a full response by this government. Senator Cash has indicated in her defence that there were 16 legislative actions that were recommended, but this government's only taking six of them. That's not a pass in anyone's book.</p><p>So let's be clear about where we are today with regard to this particular matter. I'm sure Senator Cash can see, as Labor senators see and as ordinary Australians see, that sexual harassment in the workplace is a very significant hazard. There is not only the personal suffering and pain; the cost of sexual harassment in the workplace hurts productivity in this nation. It hurts lives, it hurts productivity and it impacts negatively on businesses. It costs the Australian people a huge amount in terms of mental health and damage. Labor says: enough is enough.</p><p>This bill would have been a game changer if the government had actually taken on the task that was served up by Commissioner Jenkins and properly legislated this, with all the resources it as the government has, to create great legislation to give protection in the workplace. But the government seems to have squibbed it here. So my question, Senator Cash, is: there were 15 legislative actions recommended; why did the government only have enough courage or give itself enough time to get up six?</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
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