BHP rejects men as primary carers

February 20, 2015

The Fair Work Commission decided on February 11 that two male mine workers at the Crinum mine in the Bowen basin in Queensland were not eligible for paid primary carer’s leave to look after their newborn children.

The case was brought by the Construction, Forestry, Mining and Energy Union (CMFEU) as part of the dispute settlement procedure in the BHP Billiton Mitsubishi Alliance Enterprise Bargaining Agreement 2012.

The men said their wives had given birth via caesarean sections and as medical advice forbade the new mothers from lifting, carrying and caring for their newborns for a period, the men had no option but to take up the primary carer position until their wives regained their health.

Many mining families lived in isolated areas and cannot call on extended family networks for help.

The two fathers followed the practice at the Crinum mine for the birth of an infant. They booked time off after the birth as annual leave and, on returning to work, filled out a leave application form and a statutory declaration that the leave was taken as parental leave. Both men also supplied medical certificates that their wives had undergone caesarean sections.

The presiding judge Deputy President Ingrid Asbury, while rejecting BHP’s many arguments, still held that the two men were not entitled to primary carer’s leave in accordance with the terms of the 2012 agreement.

This was because their evidence did not establish they were fulfilling the primary carer role for their newborn children, but instead were providing care for their partners who were providing primary care for their infants.

Asbury also said the process was not worded clearly enough in the agreement to avoid similar problems on this issue. The CMFEU has said it is considering an appeal against the judgement.

This case raises real issues that were also raised in a previous successful case of sex discrimination in the 1980s in NSW, also BHP.


BHP seems to be at it again despite having been proved liable for direct and indirect discrimination for its failure to employ 34 women at its subsidiary Australian Iron and Steel (AIS) plant in Port Kembla by the Equal Opportunity Tribunal in 1985. The Tribunal awarded damages of approximately $1.4 million in October 1986. BHP appealed the Tribunal’s decisions until finally they were all ruled out by the various courts of appeal by December 1989.

Finally, after a nine-year struggle — first to get jobs, then the fight against the consequences of retrenchment based on loss of seniority caused by the delay of that initial discrimination — the women, mainly migrants whose first language was not English, were able to access the damages that had been awarded to them.

This campaign was known as the Jobs for Women campaign. The women then went on to establish a representative case where a “class” was established for all job applications by women between June 1977, when the Anti-Discrimination Act came into effect in NSW, and December 1981, when BHP ceased to hire at all. This extended BHP’s liability to 707 more women who fitted that period of time but whose claims were not met, even partially, by BHP until February 1994, 14 years after the original discrimination had taken place.
These decisions made legal history in terms of anti-discrimination law and health and safety legislation.

More relevant to the current case of BHP’s discrimination against two male miners, it established that discrimination based on gender had relevance in the industrial arena, with employment awards and registered industrial agreements. These were areas that had been exempted from the NSW Anti-Discrimination Act 1977 and the federal Sex Discrimination Act 1984.

This was changed in both jurisdictions. NSW amended the state legislation in 1995 to remove the exemption for conduct done in compliance with awards, industrial orders and agreements entirely. The federal parliament amended the Sex Discrimination Act in 1993 to limit these exemptions and provided particular practices to deal with a complaint of sex discrimination in an award or enterprise agreement.

If the Sex Discrimination Commissioner is of the opinion that there is discrimination, they can apply to the relevant industrial relations body for a hearing at which the commissioner has a right of appearance and the Industrial Relations Commission can take such action as it considers necessary to remove discrimination from the award or agreement.


The commission judgement seems to suggest so. The company, according to the relevant clauses in the agreement, is entitled to some evidential proof that the mother is not the primary carer for the father to access primary carer’s leave.

Yet such evidential proof is not applied to the mother. In other words, there is an assumption that mothers are the primary carers as a rule but there can be exceptions requiring proof.

Such assumptions are based on stereotypes of gender roles that don’t stand up historically.

Upper class women have traditionally hired other women to take on the primary care role, such as wet nurses, nursery staff and nannies. The only time such an assumption could be based in fact is during the pregnancy when the woman is carrying the foetus which is entirely dependent on her.

Once the infant is viable after birth it assumes personhood legally and then primary care can take many forms. The availability of surrogacy today complicates matters even further.

There are no definitions of what primary care involves. Is it breast feeding but not formula bottle feeding? Breast milk can and often is expressed for bottle feeding if the infant is in child care. Which tasks are included as primary and which as secondary? Is the method of giving birth to be taken into account?

BHP argued that caesarean birth does not automatically make the mother incapable of providing care, even though many obstetricians acknowledge that such operations can debilitate the mother for a period of time.

The Sex Discrimination Act is administered by the Australian Human Rights Commission and Elizabeth Broderick is the Sex Discrimination Commissioner. The 1984 act has been amended over the years but as it now stands there is a section 19, entitled Registered Organisations under the Fair Work (Registered Organisation) Act 2009.

Clause 2 says: “It is unlawful for a registered organisation, the committee of management of a registered organisation or a member of the committee of management of a registered organisation to discriminate against a person who is a member of the registered organisation, on the grounds of a member’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities.”

Sub clause (a) says: “by denying the member access, or limiting the member’s access, to any benefit provided by the organisation.”

If the CMFEU is considering a legal challenge, it would do well to consider these sections of the law and the powers of the Sex Discrimination Commissioner.

The finding against AIS was a landmark in Australian industrial history, as significant as the 1907 Harvester basic wage decision and the equal pay cases in the 1960s and 1970s. Indeed, this appears to be true. However, companies such as BHP just do not seem to grasp the essence of discriminatory practices.

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