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Submission to the Senate Education and Employment Legislation Committee inquiry into the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 Ms Jacqueline King Assistant General Secretary Queensland Council of Unions 5, 16 Peel Street South Brisbane Qld 4101 Phone: 3010 2555 1 QCU Submission to the Senate Inquiry into the Sex Discrimination Act and Fair Work Act (Respect at Work) Amendment Bill 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 23 Table of Contents Introduction ............................................................................................................................................. 3 Sex Discrimination Act Amendments..................................................................................................... 3 Recommendation 16 Objects, Definitions and Coverage ................................................................... 3 Recommendations 17 & 18 Positive Duties ....................................................................................... 5 Recommendation 19 Australian Human Rights Commission Powers ................................................ 5 Recommendation 20 Aiding or Permitting an Unlawful Act .............................................................. 6 Recommendation 21 Victimisation ..................................................................................................... 6 Recommendation 22 Timeframes ....................................................................................................... 6 Recommendation 23 Representative and/or Collective Claims .......................................................... 6 Recommendation 25 Damages and Costs ........................................................................................... 6 Fair Work Act Amendments ................................................................................................................... 7 Recommendation 28 Prohibition against Sexual Harassment ............................................................ 7 Recommendation 29 Stop Sexual Harassment Orders........................................................................ 8 Recommendations 30 & 31 Unfair Dismissal and Misconduct .......................................................... 8 Other ....................................................................................................................................................... 8 Family and Domestic Violence Leave .................................................................................................... 8 Conclusion .............................................................................................................................................. 9 2 QCU Submission to the Senate Inquiry into the Sex Discrimination Act and Fair Work Act (Respect at Work) Amendment Bill 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 23 Introduction The Queensland Council of Unions (QCU) is the peak union organisation in Queensland representing twenty-six affiliated unions and around 360,000 Queensland union members.
The right for all workers to feel safe and respected at work is a fundamental right of all workers.

However, as outlined in the Respect@Work Report, four in ten women (39%) and one in four men (23%) have experienced sexual harassment at work during the past five years.

It is clear that the current regulatory system, which is in most cases decades old, is failing Australian workers, and is no longer fit for purpose.
In this context, the QCU welcomed the announcement of the Respect@Work Report in March 2020.

However, like many we were dismayed at the significant delay in the federal Government’s response to considering the Report.
So much so that in early March 2021, after the scandals that engulfed the National Parliament with allegations of sexual assault and harassment, the QCU agreed to become a Co-Convenor of the Brisbane March4Justice rallies and assisted with the organisation of other rallies throughout regional cities in Queensland.
Sadly, it was only after tens of thousands of women, men, and their families marched across Australia, that the federal Government finally responded to the Report in the Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces (‘Roadmap for Respect’).

Significantly, while the federal Government announced its decision to ‘adopt’ the Report on 8 April 2021, it also indicated that it would adopt the 55 recommendations "wholly, in part, or in principle”.
Since that time, one of the key recommendations originally not accepted by the federal Government has been adopted by the Commonwealth, States and Territory Work Health and Safety Ministerial Council meeting of 20 May 2021 to develop a model regulation focused on prevention of psycho-social hazards in workplace.
This regulation is an important step forward within the work health and safety jurisdiction to ensure businesses and undertakings focus on prevention of psychological injuries arising from the nature of work or the business or undertaking.
The federal Government then introduced the Sex Discrimination Act and the Fair Work Act (Respect at Work) Amendment Bill 2021 (the ‘Bill’) to the Commonwealth Parliament on 24 June, 2021 incorporating other key recommendations for legislative reform to the Sex Discrimination Act 1984 (Cth) (the SD Act) and the Fair Work Act 2009 (Cth) (the FW Act).

This Bill has now been referred to the Senate Committee for deliberation.
This submission relates to the efficacy of the amendments introduced in the Bill, to the other Respect@Work Report recommendations not adopted, and to a number of other related matters.

Sex Discrimination Act Amendments This part of our submission will address the specific recommendations contained within Respect@Work for legislative change and the amendments contained within the Bill relating to the SD Act.
Recommendation 16 Objects, Definitions and Coverage Recommendation 16 relates to recommended changes to the Objects, definitions, and coverage of the Act.

3 QCU Submission to the Senate Inquiry into the Sex Discrimination Act and Fair Work Act (Respect at Work) Amendment Bill 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 23 Recommendation 16(a) was to amend the Act to ensure the objects include ‘to achieve substantive equality between women and men’.
The purpose of this recommendation was to ensure the Act was underpinned by a comprehensive understanding of what equality between women and men means, including an understanding of the drivers of gender-based inequality and gender-based violence.

However, Clause 31 of the Bill amends the Act only to ‘achieve, so far as practicable, equality of opportunity between men and women’ i.e., to create opportunities for equality and not to achieve substantive equality between women and men.
This represents a fundamental misunderstanding of the need to change workplace and community culture about violence against women which should be reflected as a key purpose of the regulatory framework dealing with complaints about sexual harassment and discrimination on the grounds of sex.

Recommendation 16(b) recommended changes to the Act to include a new sex-based harassment offence.
Clauses 61 to 63 of the Bill amend the Section 28B of the Act to make harassment on the ground of sex a specific offence.

Clause 60 amends the Act to create a new Section 28AA for the definition of harassment on the ground of sex.

In its Report, the Commission identified that conduct which falls short of sexual harassment may also constitute sex discrimination if it amounts to less favourable treatment on the basis of sex.
Existing case law identifies that currently complaints can be raised as a matter of sex discrimination, sexual harassment, or both.

For example, a person can be subjected to detrimental treatment because of their sex.

The test for such conduct is whether a reasonable person would have anticipated in all of the circumstances, the possibility that the person harassed would have been offended, humiliated or intimidated (s 28A(1)).
However, the proposed definition of sex-based harassment includes an additional requirement to prove that not only is the conduct ‘unwelcome conduct’ but also that the conduct is ‘of a seriously demeaning nature’.

This is a reduction in the current standard to prove sex discrimination and will add significant more burdens to applicants in achieving restitution against harassment on the grounds of their sex.
Recommendation 16(c) recommended the express prohibition of the creation or facilitation of an intimidating, hostile, humiliating or offensive environment on the basis of sex.

In arriving at this recommendation, the Commission noted that while it has been traditionally accepted that a sexually hostile work environment could constitute sex discrimination that there has been limited judicial authority on the issue.
The Commission referred to an example of a hostile workplace where one sex is made to feel uncomfortable or excluded by the workplace environment such as where there is the display of obscene or pornographic materials, general sexual banter, or innuendo and sexual jokes.

In such a case, the harassment may not be directed at a specific person but is nevertheless creating a workplace environment that makes it difficult (intimidating, hostile, humiliating or offensive) for people of one sex to work within.
This Recommendation has not been addressed in the Bill.

One of the purposes of Respect@Work was to seek to shift workplace cultures and not just rely upon a victim-based response.

A specific offence such as contained within Recommendation 16(c) should be included in the Bill to help drive workplace cultural change and send a clear message that this sort of intimidating, hostile, humiliating or offensive work environments on the basis of sex is unlawful and will not be tolerated.
4 QCU Submission to the Senate Inquiry into the Sex Discrimination Act and Fair Work Act (Respect at Work) Amendment Bill 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 23 Recommendation 16(d) recommends the extension of ‘workplace participant’ and ‘workplace’ to cover all persons in the world of work, including paid and unpaid workers, and those who are self- employed.
Clauses 33 to 36 of the Bill extends the application of the Act to Commonwealth administrative offices including for Members of Parliament and judicial officers.

Clause 47 of the Bill extends the provisions relating to sexual harassment and the sex-based harassment offences to a person conducting a business or undertaking (a ‘PCBU’) and to a worker as defined under work health and safety law.

These extensions are welcomed and supported.


Recommendation 16(e) recommends the removal of the current exemption of state public servants.

This is provided for in Clause 37.

This is supported.

However, it should be noted that the Anti Discrimination Act 1991 (Qld) currently applies to state public servants and all persons in Queensland for sexual harassment matters.
Recommendations 17 & 18 Positive Duties Recommendation 17: The Commission recommended that the SD Act is amended to introduce a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, and victimisation as far as possible.

The recommendation outlined a number of factors that should be considered when taking account of whether measures were reasonable and proportionate.
This recommendation is based upon the existing positive duty contained within Section 15 of the Equal Opportunity Act 2010 (Vic).
Recommendation 18: In addition, the Commission recommended that the Commission is given the function of assessing compliance with the positive duty for enforcement which could include power to undertake assessments of the extent to which an organisation has complied with the duty, to enter into agreements or enforceable undertakings, or to apply to the Court for orders requiring compliance with the duty.
The Commission noted in Respect@Work that the SD Act contains vicarious liability provisions in Section 106 of the Act which extend liability to an employer for the actions of an agent or employee where sexual harassment has occurred in connection with the employee’s employment or the agent’s duties.

However, vicarious liability only arises once a complaint and finding of sexual harassment has been made.
The Commission noted that an employer’s practices are only scrutinised after a complaint has been made.

It was also noted that the positive duty of care currently provided for under work health and safety law, as it relates to sexual harassment, focuses on psychological health broadly and frames sexual harassment as a hazard and a risk.
The proposal for a positive duty under the SD Act would be focused on specific measures an employer has in place to prevent sexual harassment, sex discrimination and victimisation.

However, this Recommendation is not included in the Bill.

The QCU supports the Recommendation of the Commission and the inclusion of the positive duty and assessment function of the Commission for enforcement purposes in the Bill.
Recommendation 19 Australian Human Rights Commission Powers Recommendation 19 is to amend the Australian Human Rights Commission Act (the AHRC Act) to provide the Commission with a broad inquiry function to inquire into systematic unlawful discrimination, including systematic sexual harassment.
5 QCU Submission to the Senate Inquiry into the Sex Discrimination Act and Fair Work Act (Respect at Work) Amendment Bill 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 23 The Recommendation is not included in the Bill.

The QCU supports an amendment to reflect the provisions outlined in Section 127 of the Equal Opportunity Act 2010 (Vic).
Recommendation 20 Aiding or Permitting an Unlawful Act Recommendation 20 recommends an amendment to Section 105 of the SD Act to ensure it applies to sexual harassment.

Section 105 extends liability of persons to a person who causes, instructs, induces, aids, or permits another person to do an act that is unlawful under the Act.

The current provision only relates to discrimination in work or other areas and does not extend to sexual harassment.
The Bill amends the Act to extend the liability provisions to persons involved in unlawful sexual harassment or sex-based harassment offences.

The QCU supports this amendment.

Recommendation 21 Victimisation Recommendation 21 recommends an amendment to the AHRC Act to make explicit that any conduct that is an offence under Section 94 of the SD Act can form the basis of a civil action for unlawful discrimination.

Section 94 provides for an offence an act of victimisation against another person.
Clause 77 contains an amendment creating a new Section 47A which clarifies that victimisation is unlawful on a civil basis.

The QCU supports this amendment.

Recommendation 22 Timeframes Recommendation 22 recommends the AHRC Act is amended to extend the President’s discretion from 6 months to terminate a complaint under the SD Act to 24 months.

Clause 3 of the Bill amends Section 46PH of the AHRC Act to adopt the recommendation.

The QCU supports this amendment.


Recommendation 23 Representative and/or Collective Claims Recommendation 23 recommends the AHRC Act is amended to allow unions and other representative groups to bring representative claims to court consistent with the provision that enables unions and other representative groups to the Commission.

The Government’s response indicated that it noted there is an existing mechanism to enable representative proceedings in the Federal Court.
Part IVA of the Federal Court Act facilitates representative complaints.

However, there is no provision for a union or other representative group to have standing to bring a representative complaint in their own name compared with Section 46(2)(c) of the AHRC Act which enables a representative complaint to be made by a person or a trade union.

The Bill does not include this recommendation.

The QCU supports an amendment to adopt this recommendation.
Recommendation 25 Damages and Costs Recommendation 25 recommends that the AHRC Act is amended to insert a cost protection provision consistent with Section 570 of the Fair Work Act.
6 QCU Submission to the Senate Inquiry into the Sex Discrimination Act and Fair Work Act (Respect at Work) Amendment Bill 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 23 The Government’s response was to note that the determination of costs orders is already at the discretion of the court, but will review cost procedures in sexual harassment matters to ensure they are fit for purpose.
Costs provisions under Section 570 of the FW Act provide that: “The party may be ordered to pay the costs only if: (a) The court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or (b) The court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or (c) The court is satisfied of both of the following: (i) (ii) The party unreasonably refused to participate in a matter before the FWC; The matter arose from the same facts as the proceedings”.
The QCU believes that including limited costs provisions for complaints made under the SD Act and other discrimination law is essential to ensure that complainants are not dissuaded from bringing forward complaints with reasonable cause.

The provisions in the FW Act already accommodate for instances of a vexatious complaint, or where one has been made without reasonable cause, or where costs are incurred by a party’s unreasonable acts or omissions.
For example, where a settlement was reached in conciliation, but a party chose to pursue the matter to the Court and it was reasonable to assume that the same settlement was arrived at and did occur.

The QCU supports an amendment to the AHRC Act to include the same costs provisions as contained under Section 570 of the FW Act.

Fair Work Act Amendments This part of our submission relates to the Respect@Work recommendations relating to legislative reform to the FW Act and related matters.
Recommendation 28 Prohibition against Sexual Harassment Recommendation 28 recommends that the Fair Work system be reviewed to ensure and clarify that sexual harassment, using the definition in the SD Act, is expressly prohibited.

The Government agreed in principle to review the fair work system once Recommendation 16 have been implemented and their impact assessed.

Recommendation 16 relates to amendments the SD Act about the objects, definitions, and coverage.
The substantive amendments in this recommendation which are contained in the Bill include the new offence of sex-based harassment and the expansion of coverage to persons conducting a business or undertaking and to workers as defined under work health and safety law.

These amendments do not relate to a prohibition on sexual harassment under the FW Act.
To enable this recommendation, the QCU therefore supports amendments to the general protections provisions in the FW Act to include complaints made with respect to discrimination, sexual harassment and sex based harassment under the respective Commonwealth discrimination laws.

The QCU also supports amending the FW Act to provide specific powers for the Fair Work Commission to deal with workplace related sexual harassment complaints by conciliation and arbitration.
7 QCU Submission to the Senate Inquiry into the Sex Discrimination Act and Fair Work Act (Respect at Work) Amendment Bill 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 23 Recommendation 29 Stop Sexual Harassment Orders Recommendation 29 recommends the introduction of a ‘stop sexual harassment’ order equivalent to the ‘stop bullying order’ in the FW Act which should be designed to facilitate the order’s restorative aim.
Clause 24 substantially amends the workplace bullying order provisions under the FW Act by including a provision for the Fair Work Commission to issue an order if it satisfied that the worker has been sexually harassed at work by one or more individuals, and the Commission is satisfied that there is a risk that the worker will continue to be sexually harassed at work by the individual or individuals.

The FWC is able to make an order to prevent the worker from being sexually harassed.
However, it should be noted that the current Section 789FE of the FW Act ‘FWC to deal with applications promptly’, that deals with workplace bullying orders will also apply to sexual harassment matters.

This Section provides that the FWC must start to deal with the application within 14 days after the application is made.

There are also requirements in Clause 24 for an applicant to prove that sexual harassment has occurred and that there is a risk it will recur.
The QCU believes that the Commission’s recommendation would be better met by providing for the FWC to make an order that is more commensurate with an injunction where prima facie evidence is required to prove sexual harassment has occurred and will recur focused on prevention and restoring rights of parties while a proper investigation process is followed.
This will also require specific powers for the FWC to conciliate and arbitrate the substance of a workplace grievance about sexual harassment where the objective is to restore the relationship between the employer and employee.
Recommendations 30 & 31 Unfair Dismissal and Misconduct Recommendation 30 recommends that Section 387 of the FW Act is amended to clarify that sexual harassment can be conduct amounting to a valid reason for dismissal in determining whether the dismissal was harsh, unjust, or unreasonable.

Recommendation 31 is to amend the definition of ‘serious misconduct’ in the Fair Work Regulations to include sexual harassment.

The Government’s position is to agree with both recommendations.
Clause 10 of the Bill amends Section 387 in accordance with the recommendation.

The amendment is supported.

Other The QCU notes the Bill includes a further amendment to Section 104 of the FW Act, being compassionate leave which forms part of the National Employment Standard, to include leave where an employee has suffered a miscarriage.

The QCU supports this amendment.


Family and Domestic Violence Leave The QCU believes that the Bill should also incorporate an amendment to the National Employment Standards which includes provision for family and domestic and violence leave.
On this note, Sections 52 to 54 of the Industrial Relations Act 2016 (Qld) which covers state public sector and local government employees in Queensland, provide a right for all employees, other than 8 QCU Submission to the Senate Inquiry into the Sex Discrimination Act and Fair Work Act (Respect at Work) Amendment Bill 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 23 casuals to ten (10) days paid leave for domestic and family violence leave purposes.
A long term casual employee is defined as a casual employee engaged by a particular employer, on a regular and systematic basis, for 1 or more periods of employment during the 1 year immediately prior to accessing leave, are entitled to access up to two (2) days unpaid leave.
The QCU believes that consistent with the purpose of Respect@Work and its key recommendations which is to eliminate gender-based violence and within a workplace context, that the Committee should give due consideration to the inclusion of a similar statutory domestic and family leave entitlement within the National Employment Standards under the FW Act.
Conclusion The Bill outlines a number of key changes arising from Respect@Work recommendations for legislative change in relation to the SD Act and the FW Act.

The QCU agrees with the substantive amendments in both pieces of legislation.

However, the Bill does not adopt a number of key recommendations which go to enhancing preventative measures for sexual harassment in Australian workplaces.
In particular the failure to – • amend the Objects to include the achievement of substantive equality between women and men (Recommendation 16(a)); • expressly prohibit the creation or facilitation of an intimidating, hostile, humiliating or • • • • offensive environment on the basis of sex (Recommendation 16(c)); introduce a new positive duty in the SD Act and powers for the AHRC to ensure compliance with the duty (Recommendations 17 & 18); introduce a broad inquiry function for the AHRC to inquire in its own right into systemic unlawful discrimination, including unlawful systemic sexual harassment (Recommendation 19); introduce a specific right for unions and other representative organisations to file a separate application in the Federal Court for proceedings under the AHRC Act (Recommendation 23); insert new cost provisions replicating Section 570 of the FW Act in the AHRC Act (Recommendation 25); and • an express prohibition on sexual harassment under the FW Act (Recommendation 28).
The QCU is also concerned that the proposed test in the Bill relating to sex-based harassment to be unwelcome conduct of a seriously demeaning nature is a diminution to current sex based discrimination complaints which only requires conduct to be unwelcome in addition to the reasonable person test.

This additional test should be removed and the test remain as ‘unwelcome conduct’.
Further, the QCU is concerned that the current amendments to expand the workplace bullying orders to incorporate sexual harassment orders is not consistent with the purpose of restoring parties rights while workplace sexual harassment complaints are investigated.

Nor does it allow for a simple, low cost and effective way to resolve a workplace grievance by conciliation and where appropriate arbitration before the Fair Work Commission.
Finally, the QCU believes the Committee should give due consideration to the adoption of a new National Employment Standard for paid and unpaid domestic and family violence leave consistent with the provisions contained within the Industrial Relations Act 2016 (Qld).
In summary, the adoption of these further recommendations would go a long way toward shifting the focus of the current regulatory system from a victim-centred complaints based toward a prevention model where employers are required to put in place effective measures to prevent and redress complaints of harassment where possible.
9 QCU Submission to the Senate Inquiry into the Sex Discrimination Act and Fair Work Act (Respect at Work) Amendment Bill 2021 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 23