The Union has been keeping an eye on the federal Parliament where this week the Albanese Government introduced legislation to implement recommendations from the Respect@Work report prepared by Sex Discrimination Commissioner Kate Jenkins.
The legislation seeks to implement a further seven Respect@Work recommendations, including a positive duty for employers to prevent workplace sex discrimination, harassment and victimisation – gendered violence.
The implementation of a positive duty is particularly important because it puts the onus on employers to actively prevent workplace sex discrimination and violence. This particularly important recommendation was ignored by the former Morrison Coalition Government and not included in their legislation.
The Attorney-General Mark Dreyfus made the point, and quite rightly, that the positive duty obligation is the “cornerstone” of the Respect@Work recommendations, which marks a shift so that those who are experiencing gendered violence at work are not the ones who are also responsible for preventing it.
The legislation has been developed to complement the new Occupational Health & Safety framework requiring employers to address psychological harm in the workplace.
The Bill also increases the Australian Human Rights Commission’s powers to enforce the positive duty. The AHRC will have the powers to conduct inquiries into compliance, make recommendations to achieve compliance, issue compliance notices specifying actions to address non-compliance, apply to the courts for an auditor to direct compliance with notices and a power to enter into enforceable undertakings.
The legislation also amends the Sex Discrimination Act to introduce an express prohibition “to protect people from hostile workplace environments on the ground of sex”, which seeks to prohibit conduct that results in an offensive, intimidating and humiliating environment for people of one sex.
It also inserts costs protections into the Australian Human Rights Commission Act, so there is greater certainty in relation to the cost of pursuing legal action, which sometimes forces some people to stop pursuing their rightful claims.
The Labor Federal Government has committed to fully implement the Respect@Work recommendations, which we will be working with other unions to hold the government to account to ensure the recommendations are fully implemented.
The Attorney-General recently told a conference that the Government would move swiftly to put in place more recommendations from the Respect@Work report which would amend the Fair Work Act to:
- explicitly prohibit sexual harassment;
- enable unions or other organisations to bring sex discrimination legal action on behalf of complainants; and
- establish cost protections for complainants.
These are significant steps forward in addressing gendered violence in workplaces.
It will take some time to see whether the Australian Human Rights Commission’s involvement in determining workplace matters is effective in addressing gendered violence at work and dealing with workplace sex discrimination.
We are going to pursue every option available to the Union to ensure that Health Services, whether public, private or community, are doing what they can to prevent gendered violence in their workplaces.
While these are important steps, we know much more work needs to be done to fully implement all the recommendations from the Respect@Work report and much more needs to be done to address gendered violence in our workplaces.
In other good news for Australian workers, the Federal Government is supporting changes to the Family & Domestic Violence leave legislation proposed by the Fair Work Commission (FWC).
The amendment will enable the FWC to resolve uncertainties about the interaction between provisions in existing enterprise agreements and the new entitlement in the National Employment Standards.
If the FWC considers the effect of those terms is detrimental compared to the NES, it will be able to vary the terms of the agreement to make it consistent with the NES. This could lead to more workers having access to paid family and domestic violence leave.
However, the amendment only empowers the FWC to “consider” the interaction between the agreement and the NES, rather than make a “decision” about the agreement’s effect, meaning it will be expressing an opinion rather than making a binding decision.
More work will need to be done to ensure that all workers are able to access the Family and Domestic Violence leave entitlements in the National Employment Standards.
The Federal Government is also beginning the process of ratifying the International Labour Organisation’s Minimum Age Convention.
The convention says the minimum working age shall be no less than the age of completion of compulsory schooling and, in any case, shall not be less than 15 years.
It sounds strange to only be now ratifying something that has existed since the 1970s. However, according to the Federal Government, Australia has robust standards on safe and appropriate employment for children and ratification of the convention underlines the nation’s commitment to strong international labour standards.
The ratification of the convention forms a part of the National Action Plan to Combat Modern Slavery 2020-25.
The process to ratify the convention will happen after consideration by the joint standing committee and approval by the Executive Council.
While ratifying this International Labour Organisation convention is important, it leaves open other matters that need consideration like workers’ right to strike.
ACTU secretary Sally McManus highlighted this very issue, saying that introducing broader multi-employer bargaining without allowing protected strikes would leave workers with “almost zero” leverage.
We know that more effective bargaining is needed to get wages moving but under the current system many sectors – including health care, education, aged care, childcare, disability and community services – were “locked out” or faced “narrow” definitions of productivity.
As Sally McManus points out, the current enterprise bargaining system often entrenches conflict and division with unnecessary hurdles, legal complexities, and an “ineffective” independent umpire.
If workers have no access to protected industrial action, bargaining power is reduced to almost zero.
Without having the option to withdraw labour, those who sit opposite us at a bargaining table walk into the room knowing we have limited options for industrial action, which results in low pay offers and an attitude of “take it or leave it”.
The straw man argument of allowing workers to take industrial action, including strikes, means more industrial action has not stood the test of time with no surges in industrial action in countries that have explicitly protected industrial action like strikes.
We know there is a huge difference between having the option to take industrial action and actually taking industrial action.
Having a functioning bargaining system sees more agreements and fairer workplaces as a result.