Mining companies’ gender equity policies are ripe for a challenge.
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. Take a look at this lot, all real Australian women who have sought work through websites advertising mining jobs in recent weeks. An unlikely backbone of our future mining industry?
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.
Wouldn’t it be great to see a case that tested the limits of these “special measures provisions” and the dystopian gender equity framework that they prop up in Australia? It would be a real chance to strike a blow against the insidious gender politics taking over this country.
Some background for those of you unfamiliar with how these equity goals operate in practice. BHP’s discrimination against men has been relentless with the company achieving much of this feminization of the workforce by advertising women-only positions across the company. Sometimes the ads target women with experience in industries like construction, mining, defence, agriculture, aviation etc. But BHP and other mining companies which have bought into this madness also hire women with no relevant experience, like hairdressers, farmers, teachers, nurses – and boast that they quickly train them to become skilled mining employers.
The 50% goal is not just some pie in the sky aspiration. Oh no. Executives’ jobs and bonuses are on the line if they don’t manage to push more women in and men out. There are strict quotas on hiring females and it won’t matter if you were just hiring the best candidates, if you fail to hire enough women you can expect repercussions, starting with loss of bonus pay.
The discrimination doesn’t stop at hiring – promotion also is more driven by gender than merit. The overall effect is that women are promoted to management, on average, 9 years earlier than men – according to an analysis of the mining industry by accounting firm BDO.
BHP is also leaning on their suppliers to fall into line with their policies like excluding males from some job vacancies, and imposing diversity demands, which an AFR analysis described as “onerous” on contractors.
There have been two cases of BHP being sued for sex discrimination by men which have attracted significant publicity. Burak Powers, a former manager within BHP’s Houston petroleum office, sued the company in a Texas Court, claiming punitive damages because he was passed over for promotion in favour of less qualified and experienced women.
Powers laid out the “systemic pattern of top-down sex discrimination” that resulted in his position supposedly being abolished, only to be recreated, minus an open interview process, and offered to a less qualified female worker. All this despite his being invited into BHP’s elite Future Emerging Leaders Program and receiving “uniformly positive” performance reviews. He subsequently applied for three other positions inside BHP which were apparently all given to less qualified females.
Another man seeking damages against BHP was a former manager for regional Caribbean, Adrian Purdy, who was instructed by the company to fill two vacancies with females. His affidavit recounts: “I was repeatedly informed by senior managers at BHP that it was of paramount importance to hire, retain and promote as many females as possible.” Mr Purdy said two women were subsequently “hired from outside the company, over numerous clearly better qualified males who were already employed at BHP”. Mr Purdy was laid off after raising the matter in BHP’s in-house complaints portal.
BHP vowed to fight both cases but ultimately settled with Mr Powers out of court. There’s been no news about what happened with Purdy.
Over the years, I have received a steady stream of emails from people in the mining industry, alarmed at what is going on. See this story from a man who was doing plumbing training with another apprentice who happened to be female and indigenous:
“Someone from BHP HR phoned her directly and begged her to come on board as the first female plumbing indigenous apprentice. She said she didn’t really want to but BHP kept phoning and eventually she took it. When I asked, ‘What do you actually do?’ she said that they gave her a house in the town not in the mine site, a brand-new Mercedes van, all rent and living expenses all paid for. She only had to work weekdays 7am to 3pm, just driving around changing tap washers all day at worker bathrooms. Her salary was $90,000 which for an apprentice is huge. As you finish your training we want to promote you immediately to supervisor, they said. She was telling me all this with a smile on her face. This boils my piss. Juxtapose that to the young guys in the class working long hours in filthy conditions in Perth earning next to no money.”
Recently I spoke to a very cheerful young woman – I’ll call her Belinda – who had newly arrived at BHP’s showcase for gender diversity, the South Flank mine, where already 40% of frontline employees are female and 4 out of 6 senior managers. Belinda had formerly been in childcare but as a recent immigrant she leapt at the chance of trying her hand in this quintessential Aussie industry.
Belinda was full of praise for the facilities South Flank set up to attract women – two gyms, an outdoor pool, library, music room, plus daily events such as aerobic classes, visiting speakers, and nightly cooking classes. Over $100M has been spent on new lighting, CCTV, electronic door locks, and security.
Hmmm – The Big Australian boasts that all this diversity is improving productivity. It must take some very creative accounting to prove that’s the case once you factor in the costs of all this hoopla to keep women happy, don’t you reckon?
And get this – South Flank is a new mine and highly automated so the mine was forced to actually recreate entry-level roles in order to employ unskilled women. Read this ultra-woke Harvard Business Review article which boasts how it all happened.
Then there’s the problem of retaining these women – a McKinsey analysis shows the major reason for women leaving mining is “work not interesting” – precisely what you would expect from research on women’s interests.
Meanwhile the cheery young Belinda was most impressed by how easy it all was for her, boasting it had only taken a few weeks of training to get her into the large dump truck she’s now driving.
“Women take more care of the trucks than men,” she told me. That’s the mantra that pops up constantly when you ask about the BHP boast of a better safety record for women, with “67% lower recordable injury rates.” Of course, the analysis which produced that impressive figure is never presented but you can bet it’s partly due to men still mainly doing the tough, dangerous jobs in the industry while most of the women are safely ensconced in HR, admin and the cushy end of the business.
Belinda was proud that one of her group was already being promoted into a team leader role. I’ve heard from men working in this mine about the problems of women thrust into supervisory roles with absolutely no experience. “It’s utter chaos,” one correspondent told me. “The site has developed such a bad reputation that many men refuse to work there. One contractor refused to contract to the site because of severe safety concerns. Just a few weeks ago a truck laden with explosives was rolled.”
There’s no way of verifying such stories, and no one dares go on the record talking about what is going on. “If it comes out you’ve talked about this stuff, you’ll lose your job and never be employed in the industry again,” the bloke told me.
But it’s obvious that many men in the industry are very wary about women, as this mining contractor explains:
“It’s a very weird time up here at the moment. Can’t trust females. I’ve seen women flirt with blokes to have them do their work. Women can be very lazy and not wanting to get dirty (especially working visa women who don’t give a shit about the industry – they only want the money). But I’ve also known women who really earn what they get paid, women who excel at their job. I tend to stay away from the female workforce up here and generally have them swapped out of my crew – I don’t wanna lose my job because some female gets hurt feelings after being lazy at her job.”
What happens if you push thousands of young women into a very traditional male workforce? Pretty naturally the industry has been flooded with reports of men behaving badly. We’re currently seeing a huge campaign to change the mining culture “to keep women safe”, after the usual cooked-up “survey” showed heaps of predatory male behaviour, as usual mainly unwanted staring and the like. The result is they are wheeling out rape kits at mine sites, setting up a FIFO sex offenders register, and even introducing robotic dogs at Gina Reinhart’s Roy Hill mine for surveillance of misbehaving men.
Robotic dogs? I’m not kidding. I was sceptical when I first saw this video suggesting this was happening but there’s plenty online about ANGUS, the Autonomous Security Robot, designed to “ensure people feel safe on the site.” Here’s the actual gadget…
I’m receiving reports of teasing women deliberately getting men into trouble with the result that the man immediately loses his job: “Would a company accept a single male denial and not sack him when society is already sold on males in mining being sexual predators? No company wants bad publicity. I’ve adopted a policy of ‘say something to a woman only if they ask,” one nervous man explained.
Recently WA mines minister Bill Johnston responded to complaints that the mining culture is “a cesspit of predatory sexual behaviour against women,” by saying the best way to solve the issue was to add more women to the mix. How do you like that? They create the problem by pushing young women into this ultra male culture – and solve it by getting rid of men. That’s the world we live in.