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Submission by the Australian Nursing and Midwifery Federation Response to the Senate Legal and Constitutional Affairs Committee into the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 October 2022 0 Austra lian Nursing & Midwifery Federation Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022Submission 13 Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022Submission 13 Annie Butler Federal Secretary Lori-Anne Sharp Federal Assistant Secretary Australian Nursing and Midwifery Federation Level 1, 365 Queen Street, Melbourne VIC 3000 E: anmffederal@anmf.org.au W: www.anmf.org.au 1 Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022Submission 13 Introduction The Aust ralian Nursing and M idwif ery Federat ion (ANMF) welcomes the opportunity to provide a response to this Senate Inquiry.
The ANMF is Australia's largest nat ional union and professional nursing and midwifery organisat ion.

In collaborat ion with the ANMF's eight st ate and t erritory branches, we represent the professional, indust ria l, and political int erests of more t han 300,000 nurses, midwives, and persona l care workers (PCWs) across the count ry.

Approximately 89% of the ANMF's membership are women.
Our members work in t he public and privat e healt h, aged care, and disability sectors across a wide variety of urban, rural, and remot e locations.

We work w it h them t o improve their ability t o deliver safe and best practice care in eachand every one of these settings, t o fu lfi l their professional goals, and achieve a hea lthy work/life balance.
Our strong and growing membership and int egrat ed role as both a trade unionand professiona l organisation provide us w it h a complet e understanding of all aspects of the nursing and midwifery professions and see us uniquely placed todefend and advance our professions.

Through our work with members we aim to strengt hen the contribution of nursing and midwifery to improving Australia' s hea lth and aged care systems,and the healt h of our national and global communities.
The ANMF believes all nurses, midwives and carers have the right to work in asafe and healt hy workplace environment and to perform t heir work w ithout risks to their physical and psychological hea lth and safety.

The ANMF considers it is vit al that every possible measure be t aken to eli minate the risks of sexual harassment, gendered violence and discriminat ion in the workplace.
To achieve elimination of sexual harassment, gendered violence and discriminat ion there must be systemic change t o workplace structures that perpet uat e gender inequa lity and cult ural attitudes t hat condone unacceptable behaviour.

These changes must be encouraged and supported by legislative, regulatory and policy reform.
2 Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022Submission 13 The Bill The ANMF supports t he submission made by t he ACTU in relat ion to this Bill and wishes t o express it's strong support for the analysis and recommendations made therein.

The following recommendations warrant emphasis and attention; 1.

Amending the heading above s47C(4) to include the underlined words "Other conduct towards employers and workers, including conduct by third parties."
s47C(4) as current ly drafted does not explicitly refer t o third parties.

The ANMF considers there is a risk that duty holders wi ll not underst and t hat the subsection is directed at t he conduct of third parties, and t hat employers have an obligation to prevent unlawful third party conduct.

The inclusion of a not e under s47C(4) to explain that this section includes conduct by t hird parties, ( e.g.
cust omers, residents, pat rons, clients, service users, patients, visitors, suppliers, students and parents) would inform t he intended operation of t he provision and avoid unnecessary uncertainty/ ambiguity.

2.

S47C (6) be amended to expand on the matters to be taken into account in determining whether a duty holder has complied with the positive duty.
The fact ors to be taken into account when determining whether a duty holder has complied with the posit ive duty are current ly limit ed to considerat ions of the duty holder's circumstances, and do not include any considerat ions from an employee or worker perspective.

S47C(6) should be amended to ensure t hat when det ermining whether the duty has been met, duty holders are required t o give considerat ion to t he industry specific drivers of sexual harassment and discriminat ion in the workplace (e.g.
work design, workforce profile, gender balance, risk of third party harassment/gendered violence), and t he severe consequences for workers of t hose risks not being addressed.
3 Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022Submission 13 Fai lure to make t he abovementioned considerations in an assessment under s47C(6) would be contrary to the central objective of t he positive dut y, namely, to shift t he burden from individuals making complaint s t o employers taking proactive and prevent ative act ion to provide safe workplaces.

3.
3.

Industry specific guidance and resources be developed by the Australian Human Rights Commission in consultation with the Respect@Work Council, unions and industry on how to prevent and respond to third party harassment.

The provision of guidance mat erials, t hat are industry specific, will be crucial to t he effect ive implement ation of t his legislation.
Nursing is a profession that is overrepresent ed when it comes t o inst ances of occupat ional violence and sexual harassment perpet rat ed by third parties (e.g.

residents, pat ients, families/ friends of patient s) .

The ANMF has been responsible for t he production of indust ry-specific mat erials that instruct workplaces how they can best prevent and respond to occupat ional violence and sexual harassment perpet rated by t hird part ies.
For example, the '10-point plan to Prevent Gendered Violence and Aggression' developed by the ANMF Vic Branch has been adopted by t he Vict orian Government and incorporat ed under the Nurses and M idwives (Vict orian Publ ic Sect or) (Single Interest Employers) Enterprise Agreement 2020-2024.

The ANM F should be involved in t he development of guidance materials and resources to ensure they adequately address t he industry-specific risks faced by our members.

4.
4.

Guidelines published by the Commission pursuant to s35A should be enforceable and taken into account when considering whether a duty holder has complied with the positive duty Section 35A of the Bill provides the Commission with funct ions in relation t o t he positive duty.

Those duties include t he preparat ion and publishing of guidelines for complying with the posit ive duty, however the guidelines t hemselves are not enforceable.
The ANM F considers that unless these guidelines are enforceable, t here will be uncertainty in relat ion to what constitutes compliance with the positive dut y.

The ANMF echoes t he recommendations of t he ACTU t o prescribe the guidelines by regulation and ensure they are subject to regular review and updat e t o ensure they remain relevant and responsive to current issues and circumst ances.

4 Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022Submission 13 5.
An Equal Access Model of costs be inserted into the AHRC Act The Bill does not follow Recommendation 25 of the Respect@Work Report t o implement a 'no cost s model'.

Inst ead, the Bill provides for a 'cost neut rality' model pursuant to s46PSA.

Under this model, the general rule is t hat the parties will bear t heir own legal costs (s46PSA(1)), unless t he court considers t hat there are circumstances that justify making an order as t o costs (s46PSA(2)).
Whilst the costs neutra lity model is an improvement on t he current costs model in t he AHRC Act, and arguably addresses some of the shortfalls of the no-cost s model, it still gives courts a very wide discretion to order cost s against a party.

The application of t his model may sometimes result in applicants recouping t heir legal cost s, but it may equally result in applicants being liable for the cost s of the Respondent .
There is t herefore still a large degree of uncertainty for applicant s in this model.

The ANMF supports the model put forward by the ACTU - namely, t he equal access model (also known as vertical costs shifting or qualified one-way cost s shifting).
Under t his model, the following general rules wou ld apply: • Where an applicant is unsuccessful, each party wi ll bear their own costs, unless the unreasonable behaviour of the respondent has caused t he applicant t o incur additional costs • An unsuccessf ul applicant is only liable to pay the cost s of t he respondent if t hey made vexatious claims or t heir unreasonable behaviour in the course of proceedings caused the respondent t o incur costs • Where an applicant is successf ul and the court has found a respondent has engaged in unlawful conduct in breach of t he relevant act, t he respondent wi ll be liable t o pay the applicant' s costs because respondent s should not be excused from paying costs where t hey have been found by a court t o have breached anti-discrimination law.
The model is consistent with the concerns raised in the Respect@Work Report about t he negat ive impact of cost models on access to justice, especially for vulnerable members of the community.
s Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022Submission 13 In addition to the recommendations highlight ed by the ACTU and those echoed in our correspondence, t he ANMF would like t o take this opportunity t o comment and make recommendations regarding the issue of enforcement.

6.
6.

Inquiries made by the AHRC into compliance with the positive duty should occur where complaints have been made by unions on behalf of employees/workers at a workplace S35B(l ) of the Bill provides t hat the Commission may inquire into a person' s compliance with the posit ive dut y in relat ion to sex discrimination if the Commission reasonably suspects that the person is not complying.
The ANMF asserts t hat t his section creates uncertainty and ambiguity in terms of when an invest igation will take place.

Additionally, it fa ils to address whether a union would be in a position to make a complaint on behalf of members that would prompt an investigat ion .

The ANMF recommends the sect ion be amended to ensure that where a complaint is made by a union on behalf of employees/ workers, the AHRC is obliged to inquire into a person' s compliance wit h the posit ive duty.
In the absence of such an amendment a note should be inserted in the section clarifying that where a complaint has been made by a union/ employee representat ive, t he Commission would have sufficient grounds to suspect non-compliance w it h the duty.

7.

Power to seek enforcement of compliance notices should be extended to unions/ employee representatives S35J of t he Bill empowers the AHRC t o make an applicat ion to the Federal Courts to seek enforcement of compliance notices.
The power to seek compliance with t hese orders does not extend to unions or employee represent atives who would be directly impacted by t he issue of non-compliance.

The ANMF considers this to be a crucia l amendment t hat must be made t o the Bill to ensure t hat workers and their represent atives are empowered to create safe workplaces and prevent sexual harassment and sex-based discrimination.
In t he absence of such a provision, workers are at t he mercy of t he resources and inclination of the AHRC to pursue compliance on their behalf.

The ANMF considers this as count erproductive to t he goal of create saf e workplaces free from sexual 6 harassment and discrimination.

Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022Submission 13 8.
Enforcement bodies must be adequately funded to perform statutory functions The AHRC has been empowered to perform enforcement f unctions by t he Bi ll, specifically; • The power to inquire into suspected systemic un lawful discriminat ion and compliance w it h the positive duty; • The power to issue compliance not ices; and • The power to make applicat ions t o the Federal Court t o enforce compliance not ices associated with t he positive dut y.
The ANMF would t ake t his opportunity t o highlight that t he powers conf erred on the AHRC, whi lst welcome, will provide litt le widespread uti lity in the absence of adequat e funding for the AHRC to undertake these investigat ions and pursue enforcement of compliance notices.

Compliance with the legislation wi ll be sign ificantly undermined without an adequately resourced enforcement body, equipped to adequately investigate and dea l with breaches.
Conclusion The ANMF supports t he recommendat ions made by the ACTU in their submission regarding this Bill.

We also urge the Senate Commit t ee t o adopt the recommendations we have made regarding accessibility t o enforcement mechanisms under the Act, specifically those t hat would empower our members and workers across t he country to act ively prevent and eliminate sexual harassment and discrimination in their workplaces.
7 Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022Submission 13