Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697637076641.pdf (Australia)
22 July 2021 Mr Alan Raine Committee Secretary The Senate Education, Employment and Legislation Committee Parliament House CANBERRA ACT 2600 Via email to: eec.sen@aph.gov.au Dear Mr Raine, Re: Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 Thank you for the opportunity to make this submission in response to the above proposed Bill (the Bill).
Background The Working Women’s Centres (WWCs) comprise Working Women’s Centre SA (WWCSA), the Northern Territory Working Women’s Centre (NTWWC), and the Working Women’s Queensland program of Basic Rights Queensland (BRQ).

WWCs are community based, not for profit organisations that provide free and confidential advice and holistic support services on work-related matters to female, transgender and non-binary identifying workers and specialise in gender-based workplace issues.
The Northern Territory and Queensland Centres were established in 1994 and the South Australian Centre in 1979.

WWCs work primarily with women who are not represented by a union, lawyer or other advocate.

Women who contact our Centres are often economically disadvantaged, vulnerable and work in precarious areas of employment.

Many women who access our services are pregnant and/or have children.
We assist with a broad range of workplace issues such as gender discrimination, unfair dismissal, bullying/harassment, sexual harassment and assault.

We also conduct research and project work on a range of issues that women experience in relation to work.
These have included access to child care, family friendly practices, the needs of Aboriginal and Torres Strait Islander working women, pregnancy and parental status discrimination and leave entitlements, work/life balance, pay equity, and the impact of domestic violence on women workers and their workplaces.

Additionally we provide free and fee-for-service training for workers and employers about workplace rights on areas such as bullying, sexual harassment and domestic violence.
The experience of WWCs is that sexual harassment at work remains a persistent public health challenge with implications for workplace safety and workers compensation.

Despite outlawing 1 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 53 sexual harassment in specific contexts, much needs to be done to prevent the escalation of injury that women often experience when trying to address sexual harassment in their places of work.
We are clearly not there yet as has been evident by recent public disclosures as well as clients accessing our respective services.

Common across WWCs is the increase seen in clients presenting with sexual harassment and sexual assault matters in the last 12 months to 30 June 2021, especially during the first 6 months of 2021.
BRQ has seen a steady flow of sexual harassment complaints in the last 12 months peaking in March 2021 with 11 new clients alone, which is significant for a service that operates only 3 days a week due to funding constraints.

For the NTWWC, sexual harassment has become our leading discrimination matter, with women from culturally and linguistically diverse backgrounds being highly represented.
Whilst there have been some improvements in recognising psychological injury, both workers’ compensation and workplace health and safety authorities in practice seem to be largely ill equipped to respond to claims from sexual harassment victims, which can serve to exacerbate injuries.
Largely because of administrative obstacles, many women fall short of being able to access appropriate (or any) workers’ compensation for injuries sustained in the course of their employment due to sexual harassment or assault.

It also becomes another process where traumatised clients need to re-tell their story multiple times to ‘prove’ the abuse occurred, potentially being repeatedly disbelieved, which further exacerbates their injuries.
There are also well documented difficulties for women to pursue justice or compensation through police processes, meaning many choose not to report assaults that could warrant prosecution.

Improving access to justice and/or safety mechanisms through other instruments may help to mitigate the impact of these systemic failings and better protect and support the healing of workers who experience sexual harassment and sexual assault.
WWCs welcome reforms proposed by the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (the Bill) based on the Australian Human Rights Commission’s (AHRC) Respect@Work Report (The Report).

However, there are further recommendations in the Report not covered in this Bill that we hope to see included in amendments or future Bills to adequately provide and reinforce protections in relation to sexual harassment and discrimination based on sex.
Our submission summarises our main concerns about the Bill broadly, and then focusses on particular provisions where we recommend amendments, clarification or inclusions.

Throughout our submission we have included numerous case studies that demonstrate the breadth of our clients’ experiences with respect to sexual harassment.

Unfortunately there are many more stories.


The case studies cited do not include the real names of our clients and/or have details modified to protect the confidentiality and identity of our clients including in some instances their personal safety.

General Concerns: Sexual harassment is “recognised as a form of gendered violence.
The social norms, structures, attitudes and practices that drive violence against women are the same drivers that enable sexual harassment.”1 Therefore it is imperative that any work toward preventing sexual harassment and other forms of gendered violence and inequity in the workplace involves facilitating a broader shift 1 Respect@Work: Sexual Harassment National Inquiry Report (2020) page 23.
2 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 53 in societal attitudes and what is considered appropriate behaviour.
Primary prevention work is a key recommendation of the Respect@Work Report and the current context in Australia was highlighted as a barrier for victims in accessing supports and/or reparative mechanisms.2 WWCs consider it vital to assess all proposed actions arising from the Report in relation to the broader goals of achieving gender equality and combatting the drivers of gender based violence, as well as how the existing social context may skew interpretation.
Any legislative amendments introduced should be carefully considered in terms of both a) how they will serve to change the current social narrative and b) how they may be interpreted through the lens of existing societal attitudes, including tendencies toward disbelieving victims or trivialising sexual harassment.

We will highlight some concerns about perceived inconsistencies in this regard throughout our submission.
The General Outline in the Bill’s Explanatory Memorandum states that the purpose of the Bill is to “strengthen, simplify and streamline the legislative and regulatory frameworks that protect workers from sexual harassment and other forms of sex discrimination in the workplace”.3 The General Outline also states the purpose of the Bill is to “ensure that more workers, particularly vulnerable workers, are protected and empowered to address unlawful conduct.”4 We will highlight in this submission areas that we feel the proposed amendments do not achieve, and in some cases frustrate achievement of these purposes.
We will also raise concerns where the proposed amendments create disparity across federal legislation.

We are confused as to why amendments to the Fair Work Act relating to miscarriages have been included in a Bill designed to respond to the Respect@Work Report recommendations.

We are concerned that there is a risk that the significance of this item as a necessary protection for workers may be lost in the broader context of the Bill.
WWCs are further concerned by the suggestion that implementing these amendments will be cost neutral in practice, despite introducing an additional complaint function for the Fair Work Commission (FWC) in which to facilitate and make orders.

The General Outline in the Explanatory Memorandum mentions funding allocated under the Roadmap for Respect, however that document makes no provision for funding toward realisation of Recommendations 29 through 33.
If these amendments are intended to be seriously availed of as an effective complaints process, the FWC should be adequately supported and resourced to ‘resolve’ or ‘repair’ sexual harassment issues.

Lack of appropriate resourcing will place unnecessary burdens on the FWC and its employees and likely delay resolution and access to the intended protection measures for workers.
WWCs call for appropriate funding to be allocated to ensure the proposed changes can meet their proclaimed objectives including key support services such as the WWC’s to appropriately respond to client issues and demand.

WWCs support the Fair Work Commission’s request made in their submission to the Senate to commence operation of the relevant amendments 2 months after assent to enable proper implementation.

2 Respect@Work: Sexual Harassment National Inquiry Report (2020).

3 Page 3.

4 Ibid.
3 Page 3.

4 Ibid.

3 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 53 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 53 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 53 Recommendation 5 Remove exclusion of ex-partners in the provision relating to eligibility to compassionate leave.
Clause 10 – s387 of the Fair Work Act: Sexual Harassment a valid reason for termination WWCs welcome the inclusion of the explanatory note outlining explicitly that sexual harassment committed in connection to a person’s employment can constitute a valid reason for dismissal.

WWCs flag concern, however, in the inconsistency between the wording of this amendment and the proposed wording of s789FD (2A), which is designed to include protections for victims of sexual harassment.
These concerns are further outlined below.

There has already been a clear precedent set through Fair Work Act decisions that sexual harassment constitutes a valid reason for dismissal, however we are supportive of making this clearer and unambiguous, especially for employers who may not readily understand or access case law.
Clauses 22-28 - S789FD (2A) to 789FF of the Fair Work Act: “Sexually harassed at work” and Stop Sexual Harassment Orders WWCs support the creation of a pathway for workers to seek protection from sexual harassment.

WWCs welcome the inclusion of protections for workers in the event of sexual harassment by “an individual”, recognising that sexual harassment may be carried out by non-employee members of a workplace.
WWCs hold concerns though about the limitations imposed by the definition of the term “sexually harassed at work” as proposed in s789FD (2A) of the Fair Work Act.

We recommend that this new process instead be availed to all workers.

Our concerns are detailed below.


Definition of “sexually harassed at work” The proposed definition of the term “sexually harassed at work” differs from other workplace- related sexual harassment measures in the Fair Work Act and the Sex Discrimination Act and, in its current interpretation, does not capture all instances where the sexual harassment may take place in the context of work.
The limitations imposed by this definition contrast starkly with the wording of the proposed amendment to s387 of the Fair Work Act (‘…in connection with the person’s employment’ and from the existing and proposed provisions surrounding the “context of work” in the Sex Discrimination Act.
While the other changes are welcomed, it is unusual that the definitions under instruments providing for accountability of perpetrators of sexual harassment are broad and inclusive while the sole proposed amendment designed for protecting victims of sexual harassment is quite narrow and exclusive by contrast.

The inconsistency across Acts and even parts of the same Act may likely contribute to confusion and inconsistent application of responses to sexual harassment.
This is not cohesive with the goal to “simplify and streamline” regulatory provisions against sexual harassment.

Further, this discrepancy shows a lack of nuanced understanding as to the impact of sexual harassment on victims, victims’ needs, and the principles of behavioural change among perpetrators of gendered violence.
Studies have shown that emphasising punitive responses to gender based violence can lessen the likelihood 6 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 53 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 53 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 53 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 53 regardless of whether the employer is a State Government entity, a national system employer or a constitutionally covered business.
Additionally, this will fall within the recommendations/findings of the Respect@Work report, to bring “co-ordination and consistency” in regimes governing workers’ rights and therefore clarity and ease in application.

Safety at work is fundamental regardless of where a person works and also consistent with Australia’s obligations under various international instruments.

These reforms are essential for advancing both women’s safety and economic security.
The community and NFP sector includes organisations registered as charities, employ a high proportion of female workers, workers on visas, workers in precarious employment situations such as casual and max-term contracts, and workers engaging in non-traditional workplace settings.
- - The charity sector employs 11% of the workforce in Australia and utilises approximately 3.6 million volunteers.7 The majority of work activities in the sector are primary and secondary education, aged care, social services.8 All of these fields traditionally employ a lot of women, and in particular aged and disability care employs high numbers of migrant women and women on visas (as seen through COVID-19 effects and the Aged and Disability Care Royal Commission).9 - Almost 50% of revenue for this sector comes from government grants (or donations).10 This means that employees are more likely to be casual or employed on shorter, funding dependent max term contracts.
- Volunteers often constitute young people or newly arrived migrants looking for work experience, retirees and older people, people who cannot work for impairment reasons, and isolated, looking for community connection.
These represent recognisable vulnerable groups subject to potentially higher rates of abuse and exploitation11 The NTWWC frequently hears anecdotally that people who work or volunteer for a cause they believe in are far less likely to want to take action against their organisation as they know that their community and clients will suffer.
- Many of the characteristics of the workers listed above include specific vulnerability factors flagged in the Respect@Work Report as increasing the risk of experiencing workplace sexual harassment.

The current wording of the provisions under s789FD-789FF serve to exclude many of these workers from the first dedicated protection response mechanism against sexual harassment.
Recommendation 7 Not for profits and community service organisations should be captured by the Fair Work Act, for the purpose of Stop Bully and Stop Sexual harassment orders, not captured as a “Constitutionally covered entity”.

7 Australian Charities Report 7th edition, May 2021 (ACNC).

8 Ibid.

9 Markets, Migration & the Work of Care, UNSW.

10 Australian Charities Report 7th edition, May 2021 (ACNC).

11 Key Volunteering Statistics, January 2021 (Volunteering Australia).
10 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 53 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 53 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 53 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 53 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 53 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 53 Gendered violence also impacts on women’s careers and their economic security.
Many women leave secure employment and careers in order to remove themselves from risk and harm where gendered violence is not addressed.19 Impacts extend to colleagues and the workplace more generally, and include compromised productivity, lower retention rates, recruitment costs, reduced morale, increased absenteeism, direct and indirect costs of investigations, and reputational damage.20 Currently, the National Employment Standards (NES) provides for five (5) unpaid domestic and family violence leave, with any paid leave available only at the discretion of employers in various policies or Enterprise Agreements.
As a model employer, the NTWWC offers 20 paid days domestic family and sexual violence leave annually under its Enterprise Agreement.

WWCs recommends taking this opportunity to amend the current NES to provide for paid domestic and family violence leave.

Recommendation 13 The National employment Standard is amended to provide for a minimum of 10 paid days domestic and family violence leave annually.

Thank you for considering our submission.


We look forward to contributing further to these discussions to ensure that the intent of the Respect@Work recommendations are implemented and greater protections are provided to women against gender based violence/sexual harassment in both a workplace setting and broader society.
Yours sincerely, Working Women’s Centres Nicki Petrou Director NT Working Women’s Centre GPO Box 403 Darwin, NT 0801 ph: (08) 8981 0655 admin@ntwwc.com.au Fiona Hunt Director Basic Rights QLD PO Box 10554 Adelaide Street Brisbane, QLD 4000 ph: (07) 3211 1440 qwws@qwws.org.au Abbey Kendall Director Working Women’s Centre SA PO Box 8066 Station Arcade Adelaide, SA 5000 ph: (08) 8410 6499 wwc@wwc.org.au 19https://d3n8a8pro7vhmx.cloudfront.net/victorianunions/pages/4164/attachments/original/1511416638/Fac t sheet stop GV print.pdf?1511416638 20 VEOHRC (2015) Independent Review into Sex Discrimination and Sexual Harassment, Including Predatory Behaviour in Victoria Police: Phase One Report - Dec 2015, http://www.humanrightscommission.vic.gov.au/our-resources-and-publications/reports/item/1336- independent-review-into-sex-discrimination-and-sexual-harassment-including-predatory-behaviour-in- victoria-police-phase-one-report-2015 16 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 53