Is BHP discriminating against men?

When BHP Billiton’s CEO Andrew Mackenzie addressed shareholders at the 2016 annual meeting, he told them that achieving a 50% female workforce within the decade was a “moral imperative” for the company.

This sanctimonious claim was all the more sickening given that his big announcement neatly diverted attention from ongoing protests by Brazilians affected by the collapse of the company’s Samarco dam a year earlier, which killed at least 19 people and devastated the local environment.

It worked a treat. The media lapped it up, applauding Mackenzie’s plan to replace half the male workforce with women in this most masculine of industries. By last year BHP had doubled the proportion of female employees – up from 17% in 2016 to over 32% on 30 June last year. To measure their “progress” another way, in the 12 months to June 2022, BHP shed 1,417 male employees (5% decline) and hired 806 more females (7% increase).

Women are lining up to come on board.

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­BHP is convinced that this blatant discrimination against men is perfectly legal. But we have exciting news – lawyers have suggested the “special measures” provision in the Sex Discrimination Act that mining companies rely upon for their “positive discrimination” is ripe for a challenge. What’s needed is the right case to bring this on.

Our legal friends, who have recognised expertise in this area, say: “The notion that the special measures available under s7D permit untrammelled discrimination against men may be misplaced.” 

Their comments continue: “There seems to be a misunderstanding amongst some lawyers and in some of the case law that the Sex Discrimination Act (SDA) permits unlimited discrimination against men to address so-called discrimination against women. However, if a case came before the courts which involved significant, positive, relentless discrimination against men in a large organisation in order to quickly achieve an aggressive and arbitrary goal of so-called “equality” (i.e. 50% women working in a particular work place) for no reason other than reaching that goal, then it would be interesting to see if the special measures exception holds up for such an employer.”

The lawyers point out that the Australian Human Rights Commission Guidelines on special measures under the SDA say special measures must be “proportionate and properly targeted”.

The AHRC guidelines note that the Federal Court has held that the objective of achieving ‘substantive equality’ in s7D means equality in substance, rather than ‘formal’ equality. “It does not mean abstract or speculative, ideal or imaginary equality,” say the lawyers suggesting that on the face of it, the BHP’s very aggressive policy could lack proportionality.

The lawyers draw attention to Article 4 of the Convention on the Elimination of All Forms of Discrimination against Women which underpins the SDA noting that this Article, which deals with special measures, refers to them being acceptable to achieve “the objectives of equality of opportunity and treatment”.

This is a key issue. “Nowhere does the Convention refer to equality of outcome”, the lawyers comment.  “And that makes sense, because otherwise the Convention would be condoning ongoing and disproportionate discrimination against men, and that would never be the overriding objective of a human rights instrument. These instruments are all about providing opportunity for women, if they want it, and striking a balance - not about permitting rampant unfairness against men.”

So, there we are. All that is needed is a man (or group of men) who has been harshly and unfairly treated by disproportionate and aggressive workplace diversity objectives in BHP, or elsewhere in the mining industry, or some other large corporate to take legal action over that treatment.