Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697637229920.pdf (Australia)
9 July 2021 Senate Standing Committee on Education and Employment Department of the Senate PO Box 6100 Canberra ACT 2600 Dear Committee Members Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 WEstjustice and Springvale Monash Legal Service welcome the opportunity to make a submission to the Education and Employment Legislation Committee (the Committee) inquiry into the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (the Bill).

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1.

About our organisations and our employment law work 1.1.

WEstjustice WEstjustice is a community legal centre providing services to people who live or work in Melbourne’s West.

Melbourne’s western suburbs encompass six local government areas and a population of approximately 900,000 people and is growing rapidly.1 It is one of the most diverse regions in Australia with significant representations of communities from Asia, Africa and the Pacific Islands.
It is also an area with high levels of casual and low income workers.2 1.2.

WEstjustice’s Employment and Equality Law Program WEstjustice’s Employment and Equality Law Program (EELP) seeks to improve employment outcomes for vulnerable workers including migrants, refugees, temporary visa holders, young people and people who have experienced gender-based violence.
We do this by empowering communities to understand and enforce their workplace rights through the provision of tailored legal services, education, sector capacity building and advocacy for systemic reform.

Our EELP Program has in-depth experience working with victims of sexual harassment.
While sexual harassment is not the most common issue for our clients (sexual harassment claims account for less than 10% of our casework files), where our clients have been victims of sexual harassment the conduct has been egregious and has had a significant impact on our clients.

In most cases we have supported these clients through to the completion of their legal claims.
1 Department of Jobs, Precincts and Regions (Vic), ‘Western Region’, Suburban Development (Web Page, 5 April 2019) <https://www.suburbandevelopment.vic.gov.au/regions/western-region>.

2 See for example Ben Schneiders ‘A city divided – Covid-19 finds a weakness in Melbourne’s social faultlines’ The Age 07 August 2020 Accessed at https://www.theage.com.au/national/victoria/a-city-divided-covid-19-finds-a-weakness-in-melbourne- s-social-fault-lines-20200807-p55ji2.html - based on ABS and DHHS data.
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 36 Our practice confirms the findings of the Australian Human Rights Commission’s Respect@Work: Sexual Harassment National Inquiry Report (2020) (Respect@Work Report) - that culturally and linguistically diverse (CALD) communities are significantly overrepresented in sexual harassment claims and intersectional disadvantage is also present.
All of our clients who have complained of sexual harassment have been women or identify as part of the LGBTIQ+ community.

It was also frequent for these clients to report to us with a range of other legal issues, as set out in more detail in the case studies below.

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1.3.

Springvale Monash Legal Service Established in 1973, Springvale Monash Legal Service (SMLS) is a community legal centre that provides free legal advice, assistance, information and education to people experiencing disadvantage in our community within the City of Greater Dandenong, the City of Casey and the Shire of Cardinia.

SMLS has a significant policy, advocacy, and law reform program.
We contribute to reforms in family violence laws and practices, access to civil procedure reforms, discrimination towards young community members in their use of public space and their interactions with the criminal justice system, as well as in highlighting the needs of refugees and people seeking asylum, particularly unaccompanied humanitarian minors and women escaping family violence.

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1.4.

SMLS and Employment Law SMLS recognises that there is an ongoing need within our local community for free employment law assistance for workers.

The complexities and constantly shifting nature of employment law is often difficult for our clients to navigate, particularly for clients from culturally and linguistically diverse communities.

At SMLS we aim to empower clients to become better informed of their rights and of the legal avenues available to assert those rights.
We also understand that our clients may not always be in a position to self-help if, for example, a matter is complex or if a client is facing disadvantage due to factors such as limited English or disability.

Some clients may feel intimidated by the employer and may not otherwise be willing to assert their rights in the absence of a legal advocate.
We seek to redress these power imbalances by providing ongoing assistance, which may include preparing applications to the Fair Work Commission and negotiating a settlement with employers.

Our employment law service may provide advice and assistance in relation to; unfair treatment in the workplace, unfair dismissal, workplace bullying, discrimination, disputes regarding unpaid or underpaid wages, unpaid leave, redundancy, sham contracting and other entitlements.
In addition to our onsite employment law clinic, we operate a duty lawyer outreach service at the Fair Work Commission in partnership with Job Watch in response to ongoing need within our local community for free employment law assistance.

We also deliver the International Students Employment and Accommodation Legal Clinic, in partnership with Study Melbourne, WEstjustice and Jobwatch.

2 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 36 2.

Our submission 2.1.
Our submission 2.1.

A missed opportunity Given the stories we hear from our clients and the case work we conduct for sexual harassment victims, we support the implementation of the vast majority of the changes recommended in the Australian Human Rights Commission’s Respect@Work Report (both legislative and non- legislative) to comprehensively address sex discrimination and sexual harassment in Australian workplace.
We note that this Bill will implement a small, select group of recommendations for legislative reform made by the Respect@Work Report (Recommendations 16, 20, 21, 22, 29, and 30).
Disappointingly, the Bill does not implement some of the key legislative recommendations that would make a big difference to our clients and the communities we serve – including (but not limited to):  Recommendation 28 (amend the Fair Work Act to expressly prohibit sexual harassment);3  Recommendation 17 (amend the Sex Discrimination Act to include a positive duty on employers to take reasonable measures to eliminate sex discrimination, sexual harassment and victimisation);4 and  Recommendations 18 and 19 (Sex Discrimination Commissioner to undertake systemic investigations and compliance monitoring).
The Explanatory Memorandum to the Bill says that its aim 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”.

The Bill, as currently drafted, fails this aim because it does not implement the comprehensive, inter-related recommendations made following the extensive consultation and research undertaken by the AHRC in their 2-year, national inquiry.
Recommendation: We recommend the Federal Government implement all of the recommendations in Chapter 5 (The Legal and Regulatory Framework) of the Australian Human Rights Commission’s Respect@Work Report, rather than the limited selection of amendments contained in this Bill.

2.2.

Key issues in the Bill as drafted Below we have commented on some of the key issues we see in the Bill as drafted, in terms of how useful those changes will be for our clients.
We have not addressed all of the Bill’s provisions, only those of most relevance to our clients.

We have included de-identified case 3 We have commented on this further below – see page 4.

4 It is our experience that sexual harassment in the workplace is addressed by employers or regulators in context as a Workplace Health and Safety (WHS) matter.

While WHS frameworks may be interpreted to cover risks such as sexual harassment, there is no explicit reference to sexual harassment.
In our experience, employers often lack the frameworks and understanding to effectively identify and manage the risk of sexual harassment in the workplace.

A positive duty is needed.
3 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 36 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 36 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 36 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 36 experienced by our clients has occurred in circumstances of a power imbalance – for example, where a longer-term, permanent staff member (often in a position of authority or responsibility) has sexually harassed a newer, casual staff member.
We have seen multiple instances where the employer has terminated (or not offered further work to) the victim of sexual harassment rather than the perpetrator, as they seemed unsure of their legal right to terminate the perpetrator.

Recommendation: We support the definition of serious misconduct in the Fair Work Act being updated to explicitly include sexual harassment.
(iv) Extend timeframe for sexual harassment complaints to six years In our experience it can often take clients months or even years to come forward and have the courage to talk about their experiences of sexual harassment.

We support extending the timeframe for lodging complaints to the Australian Human Rights Commission to 6 years.

Recommendation: We recommend that the Australian Human Rights Commission Act 1986 (Cth) be amended to extend the time limit to lodge a complaint to 6 years.
Conclusion We urge the government to reconsider Chapter 5 of the Australian Human Rights Commission’s Respect@Work: Sexual Harassment National Inquiry Report (2020) and implement the full range of legislative changes envisaged by the AHRC, to give full protection to people who experience sexual harassment or sex-based harassment in the workplace.
Yours sincerely, Frankie Lai EELP Program Manager, WEstjustice Ashleigh Newnham Manager, Strategic and Community Development, SMLS 7 Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021Submission 36