A landmark victory for equal employment, this was one of largest and longest sex discrimination cases in Australian history.
We acted for a group of women in an employment discrimination case against Australian Iron and Steel (AIS), owners of the Port Kembla Steelworks and a subsidiary of BHP – the largest company in Australia at the time.
Women had been applying for work at the steelworks for years, but few were offered positions. Between June 1977 and April 1980, AIS employed 4,000 steelworkers but just over 1% were women. Two thousand women were on the waiting list for jobs, some for as long as seven years. The waiting list for men was only 47, and men never waited more than two and half months for a job.
In 1980, 34 women took complaints to the NSW Anti-Discrimination Board, arguing the company had breached its obligations under the Anti-Discrimination Act 1977 byrefusing to hire women. After significant negotiation the steelworks agreed to hire more women, eventually employing more than 150.
But when the steel industry experienced a downturn in the early 1980s, many of the women were laid off. The company said this was because they had been among the most recent hires, but the women argued if they had not initially been discriminated against, they would have been hired earlier and would not have been laid off on the principal of ‘last on, first off.’
Our case representing women ironworkers was led by Counsel John Basten (later a Justice of the NSW Court of Appeal) and heard at the Equal Opportunity Tribunal over 42 days throughout 1984-1986. A central issue was whether the nature of steel mills meant the work was ‘unsuitable for women’. In particular, the company claimed most jobs at Port Kembla required lifting weight beyond the statutory limit permitted for women. The Tribunal found this was not the case and awarded approximately $1.4million to 34 women affected. Several women were awarded the maximum individual amount of $40,000.
AIS appealed, eventually taking the case to the High Court. They claimed the Tribunal had erred in law by deciding the layoffs amounted to additional discrimination, beyond the initial discrimination in delaying employment of women.
As the case continued, women affected organised with others to form the Jobs and Justice for Women Campaign, keeping pressure on AIS and BHP with advocacy and public activism.
The High Court dismissed the AIS appeal in December 1989. The Court’s four separate decisions were the first to consider the legal definitions of ‘direct’ and ‘indirect’ discrimination in the Act.
During the time it took to reach this resolution, other women had brought complaints to the Anti-Discrimination Board. The total number of complainants eventually numbered more than 700. The Justice and Equity Centre (as PIAC) agreed to act in a representative action at the Equal Opportunity Tribunal for nearly 300 women not involved in the original complaint.
At the time, orders made in representative proceedings under the Anti-Discrimination Act could only concern liability and not damages. So, while the Tribunal found AIS were liable, each woman had to pursue an individual complaint to receive compensation.
AIS admitted discriminating against the women but disputed the issue of damages. The company accepted our suggestion of an independent meditator, with the last of the 709 claims settled in 1994.
Judge Geoffrey Graham, of the Equal Opportunity Tribunal, described the case as ‘a landmark in Australian industrial history . . . on a par with earlier decisions such as the Harvester basic wage case of the 1900s and the equal pay cases of the 1960s and 1970s’.
Further Reading
ABC Radio National, The steely women who launched a historic fight over the equal right to work — and won, 3 March 2020
Alternative Law Journal, Iron and Steel, June 1994
Illawarra Mercury, Jobs fight turns tide for Wollongong’s women of steel, 20 June 2015
Header image courtesy of the Illawarra Mercury; International Womens Day march on Crown St, Wollongong, 1984.
