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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-10-27 Daily Xml
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Bills

Equal Opportunity (Unlawful Acts at Workplace) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 12 May 2021.)

The Hon. C. BONAROS (22:31): I rise to speak on behalf of SA-Best on the Equal Opportunity (Unlawful Acts at Workplace) Amendment Bill 2021. The bill has arisen from recommendation 3 of the Equal Opportunity Commission of South Australia's report of the review into the harassment in the South Australian legal profession, and I quote:

That, consistent with Recommendation 15 of the Parliamentary Review, the Attorney-General consider amending the Equal Opportunity Act 1984...impose a positive duty upon employers to eliminate discrimination, sexual harassment and victimisation.

I was extremely pleased to see the implementation of that review following its introduction into this place and the discussions that have taken place as a result. At the outset, I would like to thank the acting equal opportunity commissioner, Steph Halliday, who provided that report, and I would also like to thank acting equal opportunity commissioner, Emily Strickland, for her report of the review of harassment in the South Australian parliamentary workplace.

We have the recommendations and it is time that we see them implemented. We asked what the problems were, we asked how to fix them, and in both instances the acting commissioners provided those responses, so it should come as no surprise to anybody that we support all 32 recommendations made, 16 in each report.

But of course now we are at the pointy end of business and we are at that stage where we need to implement those recommendations. This place has taken steps towards implementing the recommendations that relate to this workplace and I would hasten to say that the legal profession—certainly the discussions I have within the profession—is concerned about those recommendations languishing and not being implemented in a speedy fashion.

All 32 recommendations of the respective acting equal opportunity commissioners' reviews into sexual assault, bullying, harassment and victimisation in both the legal profession and in parliament itself should be comprehensively and urgently addressed. Insofar as they sit within the Attorney-General's basket, then it falls upon the Attorney-General to ensure that is done. There are many outstanding issues that do sit within that basket and the concern is that in some instances those recommendations are languishing. This is one of those recommendations that fits within the legal profession's remit, but of course would not apply only to that profession.

It is my firm view that we all have a role to play to get this done and to get it done right. Given the government's responsibilities in this area, I hope this bill will sufficiently focus its attention to effectively implementing at least recommendation 3, but of course, ideally, all 32 recommendations. To that end—and I say this respectfully—the bill before us is, as I often refer to when I introduce them, a skeleton bill of sorts, if you like. It aims to address the issue that has been highlighted by the acting commissioner.

There may be changes that we need to make because there may be issues that have been addressed. There are some concerns that have been raised already in relation to, I think, the proposed deletion of the current section 87(7) which provides for the situation where an employee is sexually harassed by someone who is not a fellow employee:

If an employee reports to his or her employer specific circumstances in which the employee was subjected, in the course of his or her employment, to sexual harassment by a person other than a fellow worker, and it is reasonable in all the circumstances to expect that further sexual harassment of the employee by the same person is likely to occur, it is unlawful for the employer to fail to take reasonable steps to prevent the further sexual harassment.

I think we can all think of lots of situations where circumstances have been perpetrated by someone other than a fellow employee, and it is imperative that these situations are covered. I do not think that that is not the intention of these provisions, but I think that we need to take into consideration some of the advice that we have received in relation to the deletion of clauses and the replacement of clauses with others.

I think it has been suggested that the wording of the new section 90A could potentially be improved as per the suggestion of the Law Society of South Australia, which suggests it could be amended to 'take all reasonable steps' for instance, or the wording for the commonwealth Sex Discrimination Act and the Victorian act be adopted. Rewording that clause to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation as far as possible is one of the suggestions that has been made.

There are going to be suggestions. I think the important thing to keep in mind here, though, is that we do not need to reinvent the wheel. The Hon. Tammy Franks has introduced the bill and it seeks to remedy a problem in our law and we have that before us. We do not need to go and draft another bill from scratch. If there are amendments to be moved or if there are improvements that can be made or if there are issues to be addressed, we can do it on the bill before us. As I said before, we all have a responsibility and a role, I think, to play in ensuring we get this right.

I commend the Hon. Tammy Franks for introducing this bill and for ensuring that it is dealt with this side of the sitting calendar and not languishing until after the election, which really is not a reasonable outcome. The Law Society has also noted the bill extends these positive obligations that are referred to potentially, I think, beyond the recommendations of the EOC in that it extends the duty beyond employers to persons with management and control of a workplace. The current act does not reference this definition.

We know where that definition comes from, obviously, but if that is a concern that the Law Society has then I am suggesting that we explore that further and see whether there is a workable solution that can be found to addressing that issue. I say that because, when the Law Society provides us with advice, we take that advice into account and ensure that we have addressed any of the issues that the Law Society may raise. We do not always agree with the Law Society and, in this instance, I do not know that we will, but we may very well do so.

I do not think those problems are insurmountable. I think that, if they are indeed problematic, they can be addressed by way of amendment between the houses. I think that this is a very good opportunity to implement a recommendation which, to be quite frank, I think we would have all liked to see introduced into this place already.

The Attorney-General has carriage of this portfolio, in so far as it relates to the legal profession. We have not seen those changes brought before the parliament by the Attorney to date. I do not expect that we are going to see the remainder of the recommendations in that report implemented this side of the election, but I think that we do have a very good opportunity right here, right now, with the bill that we have before us, which was introduced by the Hon. Tammy Franks, to address at least one of those issues. It is a very important issue and it will go a long way towards addressing the problems that the commissioner highlighted in her report.

Basically, we should not be throwing the baby out with the bathwater. If it can be fixed, we should fix it. If there is advice that the Attorney has received, we should be privy to that advice. If there is advice that the commissioner has provided to the government in relation to the amendment, we should be privy to that advice. My understanding—and I have asked the question—is that to date no such advice has been provided to the Attorney, but I am not sure whether, subsequent to my request for that information, that information was made available.

Soon we will have the opportunity to consider the report of the joint committee of parliament, which addresses some further recommendations relating to this place. These are all steps forward and that is what we are all trying to achieve. We are trying to move forward when it comes to these issues and it is my firm view that we should get as much of this work done as possible this side of the election.

As I said, I cannot see that happening with the remainder of the recommendations relating to the legal profession, aside from those things that perhaps do not require legislative change, but, as I have said, and I have repeated a number of times, we have an opportunity with this bill to get one step further to implementing the intent of the EO commissioner's recommendations. I commend the Hon. Tammy Franks for getting us one step closer to that and I think we need to take that opportunity. With those words, I indicate our support for the second reading of the bill.

The Hon. R.I. LUCAS (Treasurer) (22:43): I rise on behalf of the government to indicate that I think all members in this chamber and the government acknowledge that the principle or the objective behind this is shared by us all and that is that we want to have safe workplaces and we want to have workplaces that are free from harassment and sexual harassment. However, I think there are—and I will also refer to the Law Society's submission and some other submissions—differing views as to what the current laws provide and what this particular proposal might entail and what is the best way of achieving what is a shared objective.

If I can place on the record the advice that I have as the minister for work health and safety, and workplace safety in particular, is that the existing obligations under the Work Health and Safety Act are that:

A person conducting a business or undertaking (PCBU) ensure so far as reasonably practicable the health and safety of workers and others while they are at work and the elimination or minimisation of risks. This includes risk to physical and psychological health, and therefore it is unnecessary to amend regulations—

and I interpose there, and legislation—

to make specific reference to psychological health. SafeWork SA has undertaken successful prosecutions for breaches of the Work Health and Safety Act in relation to incidents involving harassment, including sexual harassment.

I place on the record, on behalf of the duly-appointed, parliament-endorsed regulator of work health and safety laws in South Australia, which is SafeWork SA, that they have, with existing laws and regulations, successfully prosecuted harassment cases and sexual harassment cases. Their advice is that there is already an existing duty on employers (or persons conducting businesses and undertakings, I should say) to have safe workplaces, and that safe workplaces have to involve both physical and psychological health-related issues.

One of the challenges I think in relation to what is proposed here is, in essence, a conflation of the roles of the equal opportunity commissioner and SafeWork SA. As we read this bill, it is proposing that the equal opportunity commissioner would in some way have the power to investigate in effect what are, in his or her view, unsafe workplaces, when that is actually the role of SafeWork SA. This parliament has given that role to the independent regulator, SafeWork SA, and it is their responsibility to investigate work health and safety issues within worksites in South Australia.

I note that one aspect of the Law Society's contribution to feedback on this particular legislation canvasses similar and related issues, that is, that the bill in their view omits a reference to compliance mechanism, thereby imposing an obligation but not providing a framework for what is to occur if such an obligation is breached. That is not our reading of the situation. Our reading is that, whilst it is not explicit, the only logical interpretation of the proposed legislation is that it is intended that the equal opportunity commissioner would be responsible for the enforcement of what might be incorporated into her act, and that is not in our view a role that the equal opportunity commissioner is suited to do and to undertake and is indeed tasked to do.

I think those who for good reasons want to support the legislation need to think through what in practical terms this all means. We have a SafeWork regulator. We have work health and safety legislation, and there have been proposals nationally and interstate in terms of changing work health safety laws, which have been hotly debated, but at least they acknowledged that work health safety legislation is essentially the responsibility of SafeWork SA or its equivalent regulator in each of the other jurisdictions.

This issue, which is the subject of this debate, has been debated at the national level as well. As I understand it, the Attorney-General's ministerial council (whatever that is called) has canvassed the issue. I know that at the recent meeting of work health and safety ministers this issue was canvassed, because a similar recommendation, albeit the recommendation at the national level had a significant number of caveats incorporated into that particular recommendation, that is, whilst they recommended a positive duty for all employers to take reasonable proportional measures to prevent sex discrimination, sexual harassment and victimisation as far as possible, it went on to say:

Noting that, this recommendation also proposes limiting factors such as the size, nature of the business or operation, resources, business operational priorities, practicality and cost.

This issue has been addressed at the national level in relation to national worksites, and a similar recommendation in relation to placing a positive duty on employers, as versed in the national recommendation, does have those significant riders to it, that is, practicality, cost, size of operation. All those sorts of things were included as part of the recommendation, and one would therefore infer the recommendation is that in some way any implementation of that would need to take into account all those different aspects. As the Law Society say in their submission, in point 7:

The Society suggests there is a need for any consideration of this important matter to be thorough and well-informed, having regard to addressing the present issue but also the current obligations on employers pursuant to a raft of State and Commonwealth legislation.

I am only addressing here the issues of an apparent overlap, or attempted overlap, between the responsibilities of the equal opportunity commissioner and SafeWork SA or the equivalent work health and safety regulator. At the national level, as I said, you have work health and safety ministers and Attorneys-General addressing these related issues as to how we approach at a national level.

Clearly, there are many who argue that there should be harmonisation with work health and safety laws. Everyone will probably support that, but in reality even when it was claimed that we had harmonisation it did not occur, because various jurisdictions opted out completely and one or two jurisdictions, whilst they said they would harmonise, made significant amendments to their legislation. South Australia was one of those as well. So, yes, there is a good degree of harmonisation of work health and safety laws, but it is not to the extent that many claim when you look at the actual detail of the laws in each of the jurisdictions.

One of the key points—and again the Hon. Ms Bonaros referred to this—from the Law Society submission was current duties on employers versus PCBUs. The Law Society notes that in the Hon. Ms Franks' second reading speech she referenced recommendation 3 of the EOC report, implying her bill addresses this recommendation:

We note, and highlight, that Recommendation 3 suggests the positive duty should be imposed on 'employers'.

9. Conversely, your amendment would place a duty on 'the person with management and control of a workplace' within the meaning of section 20(1) of the Work Health and Safety Act 2012 (SA), which we note involves the following definition:

They go on to quote the following definition. Then they say:

10. We understand the Equal Opportunity Act in its current form does not reference this definition.

11. The Society's Industrial Relations Committee has advised your proposed amendment appears to create an additional obligation on a person conducting a business or undertaking ('PCBU'). In this regard, the Committee observed that it appears two issues have been conflated, namely:

11.1 the issue as to placing a positive obligation on employers to prevent sexual harassment; and

11.2. extending any such obligation beyond employers to also include PCBU's.

12. The Society's Industrial Relations Committee has queried how the positive obligation on a PCBU might operate in practice.

The Law Society is actually raising the same issues that I am raising, that in practice how is this intended to be implemented if it is going to be passed through both houses of this parliament. Those who support this are going to have to contemplate how it is going to be implemented. The Law Society is raising the question.

They have highlighted the significant difference in law between an employer and a person conducting a business or undertaking. We have had that debate before. Various levels of management or operational control significantly below the level of, in essence, the business owner or the employer come within the definition of a PCBU, and therefore this parliament might be seeking to place an obligation on someone. Clearly, it is placing, or intending to place, an obligation on someone who is not the business owner or the employer but a PCBU, which are people at various levels of management, potentially, within a larger organisation.

This is a positive requirement on each and every one of those PCBUs. The Law Society is saying, 'In practice, how is this going to operate?' and that is a not unreasonable question for those who are supporting the legislation.

Again, the Law Society, as I indicated earlier, raised the question about compliance. As I said, I have a slightly different view: I think the only inference can be—and this is certainly the advice I have received—that it is intended by those who support this that the equal opportunity commissioner would have to be the compliance officer and would have to do the investigations and come to whatever conclusion as to whether or not something has been breached or not under this new provision.

The Hon. Ms Bonaros has referred to other aspects of the Law Society. I should say that the members of the Law Society's Women Lawyers' Committee noted the bill also appeared to lack any reference to an independent, appropriately qualified person having the ability to step in and investigate potential breaches with a view to potentially making appropriate sanctions against the relevant person. Again, I understand the point that the Women Lawyers' Committee of the Law Society is making, but I think the only reasonable interpretation of this bill, if it is passed, is that that would rest with the equal opportunity commissioner, because there is not any reference to any other independent, qualified person.

The reality is we have independent qualified people: they are in SafeWork SA, and SafeWork SA are saying 'We are required to have safe workplaces. We are successfully prosecuting people for harassment and sexual harassment. It is possible under the legislation that we have in our state to do that.' But if there is to be at debate about this, it would seem to make more sense to me to be having the debate and the argument in the work health and safety legislation nationally.

To the extent that you can get agreement, great. I understand the frustrations of some in jurisdictions saying that is a never-ending objective; therefore, some jurisdictions will proceed, and so be it. I can understand that particular argument. All I say to what might be the majority in this chamber—and I do not know what the other chamber will do—is there are not unreasonable questions being raised by the Law Society and others.

Whilst I do not propose to ask—and I should, but the lateness of the hour means I do not want to keep people into the early hours of the morning—a whole series of questions of the mover during the committee stage, I do ask just one simple question, I guess, and that is: which particular employer organisations were consulted on this legislation, and, if they were, what, if any, response did any employer organisation provide to the mover of the legislation?

Clearly, as the Law Society is highlighting, this potentially places significant, new and different requirements on PCBUs within their organisation, and I would be interested to know, as I said, which organisations were consulted and what, if any, response they gave on the legislation.

For those reasons, as I said, whilst I think we all have a shared objective in this, it is the government's view that this is not the way to achieve the shared objective, and for those reasons we cannot support the bill.

The Hon. K.J. MAHER (Leader of the Opposition) (22:58): I will be very brief on this. I note the Treasurer speaking of a shared objective to bring about change in this area. I think it is incumbent then, if there is such a shared objective, for the government with all the resources of government to help shape this sort of change. I do not think it is good enough just to point out any deficiencies that are viewed in here. I think there is an obligation, if there is a genuine shared objective, to come up with ways to bring about such change.

We do have a shared objective to stamp out the sort of discrimination and harassment that does occur in workplaces, and there are penalties in place for things that occur after the fact. I think the point of this is not having to wait until after the fact but making sure that there is a better and more substantial incentive for the workplace to be safe so you are not having to look at penalties after the fact.

We have looked at the submissions the Law Society has made and do take on board some of the interactions between the work health and safety legislation regime and the Equal Opportunity Act, but again, if the government is serious about these shared desires and objectives to bring about change, then help formulate some ideas about it.

We occasionally put legislation into this chamber to prod the government to do things. I made a contribution earlier today about the custody notification service—the Hon. Tammy Franks and I both had very similar legislation—which was brought into this chamber and it did bring about change. It was not the change that the Hon. Tammy Franks and I sought, that was a legislative scheme, but it brought about a scheme that has been implemented by regulation. It is not exactly what we sought but by bringing it in here and debating it in this place, it did bring about change.

I think this is what this ought to do, and I would encourage the government, if they are serious, to engage more thoroughly. If there are, as the Law Society has noted, some things that need refining, particularly interaction between different schemes and different legislation, let's see what alternatives the government have to bring about that change. I can indicate that we certainly will be supporting this second reading. It is something that does need examining, and I think in supporting the second reading, it will help to focus the government's mind on it.

The Hon. T.A. FRANKS (23:00): I thank those members who have made a contribution this evening and I offer some concluding remarks at this point of the debate. This is a very simple bill that could have a significant impact on workers and their workplaces. As I have explained, this bill would amend the Equal Opportunity Act in order to impose that positive duty on employers to eliminate discrimination, sexual harassment and victimisation.

Every single person does deserve to be safe at work and employers do have a crucial role to play in creating that safe environment. I certainly do not want people being harassed in their workplace and I hope this sentiment is shared by all members of this parliament. I thank the Hon. Connie Bonaros for her thoughtful contribution this evening, and I also thank the Hon. Kyam Maher for his words.

The Hon. Rob Lucas raised points which I think are valid and are certainly worthy of consideration. What I would say is that in my negotiations on this bill with the government, this is the first time that those things have been raised with me or my office, so I find it very disappointing that, having worked and tried to collaborate with the Marshall government on this, we actually have to bring it on to a vote to find out what their true thoughts are on the bill. Indeed, we kept being asked, 'Just hold off. Just hold off. We might have some minor amendments. We have to take it to our party room and have a conversation.'

It was actually the internal politics and politicking of the Marshall government that seemed to be the priority in the debate on this bill, and not fleshing out what the real concerns were, if they are the real concerns. I am interested in what the Treasurer had to contribute tonight because it is the first time it has been raised in that way. I would have thought there would be an exchange of correspondence. Perhaps if he was so interested in it, his office could have taken part in those discussions that were taking place between my office and the Attorney-General's office, but they certainly to my knowledge had not been communicated thus far.

It was my intention tonight to take this to a vote and stop at clause 1 and it still is. I thought, given that in these discussions with the Attorney-General there seemed to be some minor amendments that might need to be made in the other place if it passed the council tonight, that perhaps we could come back on another week, and the Attorney-General or the Treasurer could make those minor amendments that they feel necessary known to the rest of the members of parliament rather than just their party room, or indeed perhaps just their cabinet, or indeed just one or two members of their party.

With that, I commend the bill to the council on this very important issue. I believe this is a conversation that should not languish without being progressed to a point where there is impetus for change, there is impetus for reform, and there is transparency about what true views are held by members of this parliament.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.I. LUCAS: Sorry, Mr Chairman, I might have misheard the Hon. Ms Franks. If I could just clarify whether she indicated that she was proposing to adjourn the debate at clause 1 or not, whether I misheard that. Putting that to the side, I did ask one question in the second reading and the honourable member did not address it in her reply to the second reading, and that is: did the honourable member consult any employer organisations in South Australia in relation to their views on the bill and, if she did, what if any response did she receive to the proposed legislation?

The Hon. T.A. FRANKS: I did indeed say that I sought to stop at clause 1, so the Hon. Rob Lucas did hear that correctly. I also will take that question on notice and get an answer back to him. I also put a question on notice for him: can he please outline the number of sexual harassment prosecutions that have been undertaken, both successful and unsuccessful, by SafeWork SA in the last five years?

Progress reported; committee to sit again.

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