Mines given the all-clear to target female trainees

Cases

Mines given the all-clear to target female trainees

Two mining companies will implement an all-female training program after being granted an anti-discrimination exemption.

WantToReadMore

Get unlimited access to all of our content.

Two mining companies in Queensland have successfully applied for an anti-discrimination exemption, which allows them to implement an all-female trainee program.

The Queensland Industrial Relations Commission found the program supported the participation of women in the underground mining workforce.

Background


On 17 October 2017, Anglo Coal (Moranbah North Management) and Anglo American Metallurgical Coal filed an application for an exemption from the operation of specified provisions of the Anti Discrimination Act 1991. Anglo Coal is a wholly owned subsidiary of Anglo American Metallurgical Coal.

The application related to the operation of the Moranbah North Mine in the Bowen Basin. It sought approval of a 'Mature-Age Female Trainee Program', which was designed to recruit eight females over the age of 25 years to undertake training in underground coal mining.

The law


The purpose of the Anti Discrimination Act 1991 is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas, including work, education and accommodation.

Under section 113 the tribunal may grant an exemption to a person or group of people. This then means they are excluded from the operation of certain provisions of the Act. The power to grant an exemption is discretionary, which means the tribunal may consider a number of factors in assessing an application.

Legal question


The question here was whether Anglo Coal and Anglo American Metallurgical Coal should be granted an exemption from the operation of Queensland anti-discrimination law.

Arguments


The companies argued that the trainee program was necessary to encourage the participation of women in the underground mining workforce. They said the low percentage of female employees at the mine (8%) was a result of discriminatory legislation which prevented women from working underground until the 1980s.

The companies also submitted that the program was part of a bigger diversity and inclusion strategy that would apply across its coal mines in Australia.

Considerations and decision


Initially, the commission objected to the proposed age qualification required for the program. Deputy president Swan was not convinced the exemption based on age was necessary or reasonable.

Soon after, Anglo Coal and Anglo American Metallurgical Coal withdrew the age component of 25 years for the exemption sought.

The commission then granted the application for exemption based on the attribute of sex only. This means that Anglo Coal and Anglo American Metallurgical Coal are not required to comply with sections 14, 15, 15A, 124 and 127, in relation to the attribute (i.e. sex) in s 7(a) of the Act, from 1 May 2018 to 28 January 2020.

In making its decision, the commission referred to the following consideration in Gold Coast 2018 Commonwealth Games Corporation:
  • whether the exemption is necessary
  • whether there are any non-discriminatory ways of achieving the purposes for which the exemption was sought
  • whether the exemption is in the community interest
  • whether any other people or bodies support the application
  • whether it is reasonable and appropriate to grant the exemption
  • the effect of not granting the exemption
Deputy president Swan said that an exemption which allowed targeted recruitment of women in underground mining was ‘necessary’, ‘reasonable and appropriate’ and in the community interest. He noted this was because women had historically been poorly represented in the mining industry.

Anglo Coal and Anglo American Metallurgical Coal are required to apply for another exemption when the existing period ends in 2020.

The bottom line: If HR managers are considering taking any action to discriminate in favour of any particular group (“affirmative action”) on the basis of characteristics such as age or gender, then the starting point is to realise that such discrimination is basically illegal. However, the law permits certain types of discrimination to occur provided that it fulfils socially-desirable goals and is carried out in the appropriate way with judicial approval/permission. Seeking the input of a lawyer at the scoping-stage of any potential affirmative action project is advisable.

Read the judgment


Anglo Coal (Moranbah North Management) Pty Ltd [2018] QIRC 52 (1 May 2018)
Post details