In the largest and longest sex discrimination case to date, Australian Iron and Steel Pty Ltd v Banovic, PIAC acted for a group of women in relation to discrimination in employment at the Port Kembla Steelworks, owned by Australian Iron and Steel, a subsidiary of BHP.
For a number of years, women had been seeking employment at the steelworks. Between June 1977 and April 1980, the company employed over 4,000 iron-workers, of whom only 58, or a little over 1%, were women. It had over 2,000 women on its waiting list, some of whom had been there for seven years. By contrast, there were only 47 men on the list, and their longest waiting period was two and a half months.
Thirty-four women complained under the Anti-Discrimination Act 1977 (NSW) that the company had failed to hire them because they were women. After a long period of conciliation, the company agreed to engage the women as ironworkers. Over 150 women were eventually employed.
In 1982, the Australian steel industry suffered a major downturn and Australian Iron and Steel laid off several hundred workers on the ‘last on, first off’ principle. Many of the women were retrenched. They filed further complaints alleging the retrenchments to be themselves the result of earlier discrimination. The women argued, that if they had not been subject to the original discrimination but had been hired when they applied for jobs, they would not have been retrenched.
The Equal Opportunity Tribunal considered the case over 42 days during 1984-6. One of the central issues was whether the nature of most of the work in steel mills rendered it unsuitable for women. The company claimed that all but a few of the thousands of jobs at its works required lifting beyond the statutory limit set for women and therefore its actions in discriminating were not unlawful. However the Tribunal found that many of the jobs said to be ‘weight barred’ to women were in fact not so and it subsequently awarded over $1 million to the 34 women, with several individual awards at the maximum of $40,000. The company then took the case to the Court of Appeal and having failed there, to the High Court.
The issue in the High Court was whether the Tribunal had erred in finding that the company’s act of retrenching the women amounted to an act of discrimination which was separate and additional to their discriminatory conduct in delaying employing them.
In December 1989, the High Court dismissed the company’s appeal. Its judgement considered for the first time the definitions of ‘direct’ and ‘indirect’ discrimination under sections 24(1) and 24(3) of the NSW Anti Discrimination Act and in particular in relation to indirect discrimination when a requirement or condition, which on its face seems neutral, will be discriminatory.
The original complaint group was only 34 women and so as that matter progressed through the courts, PIAC agreed to act in a representative action for the balance of the women affected. The company acknowledged discriminating in relation to them, but the issue of damages remained in dispute. Finally, Australian Iron and Steel agreed to PIAC’s suggestion of using an independent mediator and in 1994 the last of the 709 individual claims was settled.