Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1694853997652.pdf (Australia)
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 51 CONTENTS INTRODUCTION .............................................................................. 3 WORKPLACE SEXUAL HARASSMENT ............................................... 3 RESPONSE TO THE SEX DISCRIMINATION AND FAIR WORK (RESPECT AT WORK) AMENDMENT BILL ......................................................... 4 Amendments to the Sex Discrimination Act .................................................... 4 Amendments to the Fair Work Act .................................................................. 5 Amendments to the Australian Human Rights Commission Act ...................... 6 ACT Government Submission 2 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 51 INTRODUCTION The ACT Government submission to the Senate Education and Employment Committee Inquiry into the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Cth) (the Bill) recognises the importance of collaborative, whole-of-nation responses to sexual harassment at work that align with the Australian Human Rights Commission’s (AHRC) Respect@Work report.
The ACT Government welcomed the Respect@Work report and its clear, evidence-based and survivor-centred approach to preventing and responding to workplace sexual harassment.

The ACT has developed an ACT Government response to the Respect@Work report which sets out a long-term commitment to creating a new culture of respectful behaviour in ACT workplaces by providing an overarching position on each of the 55 recommendations in the Respect@Work report.
This Response is founded on the principles of gender equality and respect for women, recognising that preventing sexual harassment at work requires addressing the root causes of sexual harassment and violence against women.

In the same spirit, the ACT Government supports action by the Commonwealth to protect workers from being subject to sexual harassment and sex discrimination in the workplace and steps taken to advance women’s safety and gender equality.
In this context, the submission recognises that this Bill addresses some key concerns raised in the Respect@Work report and will assist in the broader work to respond to and prevent sex-based and sexual harassment at work.

It is important to note that these amendments fall within the jurisdiction of the Commonwealth and are for the Commonwealth to action and implement.

However, the expansion of federal protections for Australian workers is supported.
There is still work to be done to respond to sexual harassment and ensure women’s safety and gender equality at work.

The ACT Government is committed to working with Federal, State and Territory government colleagues to collectively progress shared actions and contribute to preventing sexual harassment.

WORKPLACE SEXUAL HARASSMENT The ACT Government recognises that sexual harassment is a pervasive and insidious issue across the Australian community, particularly in workplaces.
This is unacceptable and preventable.

Sexual harassment impacts the whole society.

The ACT Government also recognises that gendered power imbalances in the workplace and across society are the key driver of sexual harassment, and that other forms of discrimination, disadvantage and harassment intersect to compound the impact of sexual harassment- such as gender, cultural background, race, disability, or sexuality.

Responding to and preventing sexual harassment is everyone’s responsibility.
All individuals and workers have a fundamental right to be safe and protected in their workplace, and more broadly across the community.

Our community expects that all types of organisations, managers and employers take appropriate steps to promote respectful workplaces, free from sexual harassment.

This requires nation-wide commitment and support.


The ACT Government is committed to promoting respect, equity, and diversity within the workforce and broadly across the community, and to taking action to address and prevent sexual harassment in all settings and support those affected by sexual harassment, particularly women.
ACT Government Submission 3 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 51 RESPONSE TO THE SEX DISCRIMINATION AND FAIR WORK (RESPECT AT WORK) AMENDMENT BILL Amendments to the Sex Discrimination Act The ACT Government supports the amendments to the Sex Discrimination Act 1984 (Cth) which clarify the objects of the Act, introduce a prohibition on sex-based harassment, and expand the coverage of the Act.
The inclusion of the achievement of equality of opportunity between men and women in the objects of the Sex Discrimination Act is important in recognising that gender inequality in Australian workplaces is an underlying condition that creates an environment where sexual harassment may occur.

The prohibition on sex-based harassment will ensure that harassment because of a person’s sex, but which is not conduct of a sexual nature, is expressly covered in the Bill.
This would include women but also harassment of individuals who do not conform to binary gender stereotypes of masculinity or femininity.

While sex-based harassment is currently already covered as sex discrimination under Commonwealth and ACT discrimination law, the new provision will ensure that this is expressly covered as harassment.
We welcome this clarification and note that gendered stereotypes are damaging for everyone in the workplace and are a contributing factor in the underlying culture of gender inequality in Australian workplaces.

We note that this Bill addresses gaps in the coverage of the Sex Discrimination Act.

This increased coverage will help to ensure all individuals are free from harassment at work and feel safe and supported.
Importantly, the Bill expands the existing prohibition on sexual harassment to cover interns, volunteers and self-employed workers, by adopting the terms ‘worker’ and ‘person conducting a business or undertaking’ from the model Work Health and Safety laws thus ensuring that all types of workers in all workplaces are adequately protected from sexual harassment.

This recognises the changing nature of modern working arrangements.
In addition, the Bill removes the current exemption of state and territory public servants, bringing the Sex Discrimination Act into line with other Commonwealth anti-discrimination laws – the Racial Discrimination Act 1975 (Cth), Disability Discrimination Act 1992 (Cth) and the Age Discrimination Act 2004 (Cth) – which already apply to state and territory governments and instrumentalities.
The Bill also clarifies that the scope of the Sex Discrimination Act extends to MPs, their staff, and judges at all levels of government.

The inclusion of Territory government and instrumentalities promotes existing obligations required of ACT Public Servants under the Human Rights Act 2004 (ACT) (HRA), which mandates acting consistently with human rights including the right to equality and non-discrimination and the right to the enjoyment of just and favourable conditions of work without discrimination.
Taken together, the changes to the Sex Discrimination Act will serve to usefully complement protections under the ACT Discrimination Act 1991 (ACT).

We note that the Respect@Work report also recommended the inclusion in the Sex Discrimination Act of a positive duty to prevent sex discrimination and sex-based harassment, but that this reform has not been included in the Bill.
The ACT Government considers that the inclusion of a pro-active obligation on employers to take steps to prevent discrimination assists to develop a deeper culture of gender equality in Australian workplaces and reduce the burden on individuals to make complaints to achieve needed changes.

The ACT Government would be supportive of future consideration of such reforms.
ACT Government Submission 4 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 51 Amendments to the Fair Work Act The ACT Government also supports the amendments to the Fair Work Act 2009 (Cth) which broaden the protection of workers through the clarification that ‘stop bullying’ orders also apply in instances of sexual harassment, that sexual harassment can be a valid reason for dismissal, and the introduction of miscarriage leave.
The ACT Government supports actions to strengthen the legislative and regulatory framework to protect workers from sexual harassment and other forms of sex discrimination in the workplace and supports those measures on the basis that they do not seek to limit or reduce protections under ACT laws.
While we acknowledge the Commonwealth’s moves to eliminate sexual harassment and discrimination by amendments to the Sex Discrimination Act, the ACT Government encourages the Commonwealth to reconsider its position with regard to delaying broader amendments to the Fair Work system in response to Recommendation 28 of the Respect@Work report.
Our position is that equal representation and clarity of offences relating to sexual harassment and discrimination on the basis of sex is needed across all legislation relating to discrimination, including those governing the national Fair Work system.

This is particularly important for ACT workers where the Fair Work Act 2009 (Cth) governs workplace entitlements, terms and conditions.
Ensuring consistency across all regulatory and legislative frameworks was a key principle underpinning the Respect@Work recommendations.

To delay the introduction of counterpart amendments to expressly prohibit sexual harassment under the Fair Work Act limits our ability to clearly demonstrate our shared abhorrence of discrimination in any form.
As a government committed to upholding the rights, entitlements and protections of workers, it is our position that the Commonwealth should be taking advantage of the opportunities provided by the Bill to ensure that sexual harassment and discrimination on the grounds of sex are expressly prohibited under the Fair Work Act.

To do so would provide the strongest deterrent to discrimination and harassment and offer the highest protection for workers.
The measures taken by the Commonwealth to clarify the circumstances in which a worker can apply for a ‘stop bullying’ order to expressly include circumstances relating to sexual harassment are welcomed by the ACT Government, as a step towards greater workplace protections.
The ACT Government continues to urge the Commonwealth to prioritise processes to ratify the International Labour Organisation Convention concerning the Elimination of Violence and Harassment in the World of Work (ILO Convention 190) which recognises the right of everyone to a world of work free from violence and harassment, noting that it has not taken the opportunity presented by the Bill to do so.
The ACT Government welcomes the work underway at the national level in improving how the model Work Health and Safety (WHS) laws deal with psychosocial risks and hazards in the workplace.

Changes that were recommended both in the Respect@Work report and the 2018 independent review of the model WHS laws by Marie Boland.
As a party to the 2008 Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety (IGA), the ACT Government remains committed to the principles and processes for cooperation between the Commonwealth, states and territories to implement and maintain model WHS laws.
The ACT Government also notes that this Bill presents a clear opportunity for the Federal Government to institute 10 days paid Family and Domestic Violence Leave for all workers ACT Government Submission 5 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 51 through the National Employment Standards.

The inclusion of five days of unpaid leave in the National Employment Standards does not adequately allow victim-survivors of violence to escape unsafe situations.
Domestic and family violence is an issue that affects all parts of the community, including workplaces.

Further, domestic and family violence is a gendered issue.

To escape violent relationships victims needs time and resources that are not equally available to everyone, especially if they cannot afford to take time off work.

This can leave victim-survivors in very unsafe circumstances and tenuous employment, leading to experiences of financial hardship.
Increasing the entitlement to 10 days paid leave is one aspect of providing greater and much needed assistance to victim-survivors.

Amendments to the Australian Human Rights Commission Act The ACT Government supports the simplification of the AHRC complaints process and the broadening of the AHRC’s powers.
As a human rights jurisdiction, the ACT is committed to the promotion and protection of human rights and recognises and supports the AHRC’s important contribution to reducing and preventing sexual harassment at work.

The current system regulating workplace sexual harassment is complex and may act as a deterrent to complainants.
As the Respect@Work report revealed, discrimination on the basis of sex and other characteristics can increase barriers to reporting sexual harassment and there are many complex reasons that result in the delay in bringing a sexual harassment complaint.

The Bill allows for the discretion of the President of AHRC to terminate a complaint if it was received more than 24 months after the alleged conduct.
This is an increase from the current discretion to terminate a complaint if received more than six months after the alleged conduct.

The ACT Government considers that this improvement to the accessibility of Commonwealth legal protections is complementary to protections at the Territory level.
The new timeframe is consistent with the ACT Human Rights Commission Act 2005 (ACT) which allows for a complaint to be closed if more than two years have elapsed since the conduct which is the basis of the complaint (s 78(1)).

ACT Government Submission 6 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 51 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 51