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Published online by Cambridge University Press: 24 January 2025
Opening the Federal Government’s National Conference on Legislative and Award Restrictions to Women’s Employment in October 1986, the Prime Minister, Mr Hawke, reaffirmed the government’s commitment to equal employment opportunity, based on the belief that merit should be the major principle in determining employment and promotion. Yet he recognised that at present there are many obstacles to the achievement of that goal. One particular obstacle which limits women’s opportunities to participate fully in the workforce is the existence of a range of Federal and State legislative, regulatory and award provisions, which exclude women from certain occupations or industrial processes, prevent their advancement and contribute to a concentration of women at the bottom end of the labour market.
Occupational health and safety legislation in particular, is littered with discriminatory provisions. They relate to such matters as the handling of heavy weights, shiftwork, the provision of special amenities and facilities, lead processing, industrial processes, underground mining, and apprenticeship.
This article is a revised version of a paper delivered by the author to the Conference on Legislative and Award Restrictions to Women's Employment, Canberra 17 October 1986. It draws on background material supplied by the Task Force on Discriminatory Legislation and has benefited from comments made by, and the support of the Task Force. It is reproduced with the permission of the Office of the Status of Women.
1 Quoted by P Foner, 3 History of the Labor Movement in the United States 224 (1947).
2 NSW Anti-Discrimination Board, Protective Legislation at Work: A Case Study of the “weight limit” on manual handling Sydney April 1984; and Najdovska v Australian Iron and Steel NSW Equal Opportunity Tribunal, 30 September 1985, (1985) EOC 92-140.
3 It may be of note that in female dominated industries (eg textiles, work in operating theatres with anaesthetic gases) in which large numbers of women are exposed to similar hazardous substances, exclusionary policies have not been adopted.
4 Factories, Shops and Industries Act 1962 (NSW), Lead Regulations, Reg 2 (NSW); Industrial Safety Health and Welfare Act 1972, (SA) Industrial Safety Code Regulations 1975, Reg 45 (SA); Factories and Shops Act 1960 (Qld), Lead Rule Cl 26 (Qld); Industrial Safety, Health and Welfare Act 1977 (Tas), Industrial Safety Health and Welfare (Administrative and General) Regulations 1979, Reg 336 (Tas); Labour and Industry Act 1958 (Vic), Labour and Industry (Lead Processes) Regulations 1966, Reg 23 (Vic); Factories and Shops Act 1963 (WA), Factories (Lead Materials) Regulations, Reg 4(f) (WA).
5 See generally, ACTU survey Federal A ward Provisions which Differentiate on the Basis of Sex D76/81 June 1981. The major lead smelting companies are Broken Hill Associated Smelters, Port Pirie; Mount Isa Mines; Sulphide Corporation, Cockle Creek Newcastle. These companies are covered by the following Awards: Broken Hill Associated Smelters Employees Award (State); Mount Isa Mines Employees Award (State); Sulphide Corporation Employees Award (State); Mining (Lead-Zinc) Award (Federal). None of these awards contains provisions which restrict or prohibit the employment of women in lead processing areas.
6 The Sex Discrimination Act (SDA) proscribes discrimination on the basis of sex, marital status or pregnancy (ss 14-20), in the specific circumstances defined, against an employee, applicant for work, candidate for trade or professional qualification, commission agent, contract worker, business partner (actual or potential) or union member (actual or potential). Under ss 14-20 it is unlawful to discriminate against various classes of persons in the following ways: in the terms or conditions of work afforded; by denying or limiting access to opportunities for promotion, transfer or training, or to any other benefits associated with the work offered; by dismissing the person, or by subjecting the person to any other detriment., Discrimination, under sub-ss 5(1), 6(1) and 7(1), is defined as treatment of a person which is less favourable than it would have been to another person in the same circumstances, or circumstances that were not materially different, because of: the first person's sex, marital status or pregnancy; a characteristic that appertains generally to persons of the sex, marital status or pregnant state of the aggrieved person; or a characteristic that is generally imputed to persons of the sex, marital status or pregnant state of the aggrieved person. In the case of discrimination on the ground of pregnancy, the less favourable treatment must also be not reasonable in the circumstances. Indirect discrimination is also unlawful under the SDA: sub-ss 5(2), 6(2), 7(2). Indirect discrimination occurs when, on the basis of sex, marital status or pregnancy, a person is required to comply with a requirement or condition with which a substantially higher proportion of per sons of the opposite sex, or different marital status or who were not pregnant, could comply or would be able to comply, which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not, or would not be able to comply: ss 5-7. Acts done for two or more reasons are included in the definition of discrimination provided one of the reasons is the person's sex, marital status or pregnancy: s 8. See generally Anti Discrimination Legislation, background paper prepared by the Task Force on Discriminatory Legislation and Office of the Status of Women for the Conference on Legislative and Award Restrictions to Women's Employment, Canberra, 17 October 1985.
7 However, the Commission has a general discretion to grant exemptions. For example, under s 44 of the Commonwealth Sex Discrimination Act 1984 the Commission may grant exemptions subject to such terms as the Commission specifies and for a period not exceeding 5 years.
8 By virtue of s 109 of the Federal Constitution, State legislation which is inconsistent with a law of the Commonwealth is invalid to the extent of the inconsistency. Thus at the end of this period, discriminatory State laws (unless they are specifically preserved by regulation under sub-s 40(2) of Sex Discrimination Act) will be invalid to the extent of any inconsistency.
9 Anti-Discrimination Act 1977 (NSW) ss 54(a),(b); 54(3); Equal Opportunity Act 1984 (Vic) s 39(e)(ii), (iii); Equal Opportunity Act 1984 (WA) s 69(1)(a), (b).
10 Discrimination is defined ins 29(1) of the Equal Opportunity Act 1984 (SA) ands 29(2) provides as follows: “For the purposes of this Act, a person discriminates against another on the ground of his sex if - (a) he treats the other person less favourably by reason of his sex than in identical or similar circumstances he treats, or would treat, a person of the opposite sex; (b) he treats the other person less favourably by reason of the fact that he does not comply, or is not able to comply, with a particular requirement and - (i) the nature of the requirement is such that a substantially higher proportion of persons of the opposite sex complies, or is able to comply, with the requirement than of those of the same sex as that of the other person; and (ii) the requirement is not reasonable in the circumstances of the case.”
Regulation 45(1)(b) provides that: “No male under 18 years of age and no female shall be employed in any place where a lead process is carried on whereby any such person is or may be exposed to dust, mist, fumes or gases containing a lead material.”
Where two applicants, one male, one female, applied for a job in a lead process, the employer would invariably choose the male to comply with regulation 45(1 )(b). This is clearly discriminatory under s 29(2)(a) and there is thus an inconsistency between the two provisions.
Where an Act (here the Equal Opportunity Act 1984) contains provisions that are inconsistent with an earlier enacted item of delegated legislation, the earlier provision is rendered invalid to the extent of any inconsistency. However, there is also a presumption of statutory interpretation that general provisions do not impliedly repeal earlier specific provisions (Goodwinv Phillips (1908) 7 CLR I; Anti Discrimination Board (NSW) Annual Report 1983, 61 and Pearce, D C, Statutory Interpretation, (2nd ed 1981, 123-125)Google Scholar. It is unlikely that this principle would save regulation 45(1)(b). Although the Equal Opportunity Act is couched in general terms, it addresses the very situation contemplated by regulation 45(1)(b): Women are capable of working with lead, yet the regulation prevents them from doing so because of their sex rather than because of their ability. Section s 29(2) of the Equal Opportunity Act is intended to deal precisely with these sorts of circumstances and therefore it is most unlikely that s 29(2) would be read down so as to preserve the operation of regulation 45(1)(b).
11 43 Fed Reg 52, 954-963 (1978); / Bridbord, K, “Occupational Lead Exposure and Women”, Preventive Med 7, 1978, 311CrossRefGoogle ScholarPubMed. See generally Committee on Lead in the Human Environment, National Research Council, Lead in the Human Environment, 1980 [hereafter cited as Lead in the Human Environment].
12 Silbergeld, E, “Effects of Lead on Reproduction: Review of Experimental Studies”, in M Rutter & R Russell-Jones (eds), Lead versus Health: Sources and Effects of Low Level Lead Exposure (1983)Google Scholar. See also Bridbord, K, “Low Level Exposure to Lead in the Workplace” in H L Needleman (ed), Low Level Lead Exposure: The Clinical Implications of Current Research (1980)Google Scholar; Furnish, , “Prenatal Exposure to Foetally Toxic Work Environments” 66 Iowa L Rev 63 (1980)Google Scholar.
13 29 CFR s 1910.1025, app A (1980) (substance data sheet for over-exposure to lead); 43 Fed Reg 52, 959 (1978); Lead in the Human Environment, supra n 11, 7; Hricko, A & Brunt, M, Working for Your Life: A Woman's Guide to Job Health Hazards (1976)Google Scholar. However, R Gun, “Discriminatory Provisions in Relation to Employment in the Lead Trades” Report to the Industrial Safety Health and Welfare Board, South Australia Health Commission, 1985, concludes that “there is no reliable data which suggest that fertility in men is reduced as a result of exposure to lead.”
14 29 CFR s 1910.1025, app A (1980); Infante, & Wagoner, , “The Effects of Lead on Reproduction”, in Society for Occupational and Environmental Health, Proceedings, Conference on Women and the Workplace, (1977) 232Google Scholar; Rom, , “Effects of Lead on the Female and i{eproduction: A Review”, 43 Mt Sinai J Med 542, 546 (1976)Google Scholar, and Bridbord, “Low Level Exposure o Lead” supra n 12, 271.
15 29 CFR s 1910.1025, app A (1980); 43 Fed Reg 52, 959 (1978); Lead in the Human 1 Environment supra n 11, 7; A Hricko & M Brunt, supra n 13, c-7, c-8. Spontaneous abortion 1 and stillbirth probably only occur at high levels of exposure during gestation. See also Silbergeld supra n 12, 224.
16 Chemicals which can affect the human reproductive system may do so in a number of different ways. Mutagenic materials affect the germ cells of the exposed person prior to conception causing changes which alter the chromosomal structure of the parental germ plasm and I can be transmitted to future generations. Gameto-toxic agents damage the sperm or ova prior 1 to conception, leading to spontaneous abortion or foetal malformation. Teratogens (unlike mutagens and gameto toxins which act on the worker p.ior to conception) act on the embryo itself! after conception and affect its development. Most teratogenic effects occur in the first trimester1 of pregnancy, and may even occur when the mother's exposure to the toxin has ceased shortly 1 before conception. Evidence that lead is a teratogen comes mainly from tests on pregnant animals1 administered lead, which have suffered a variety of malformations indicating that lead can have: teratogenic effects in several animal species. See Hricko, A, “Social Policy Considerations ofl Occupation Health Standards: The Example of Lead and Reproductive Effects” (1978) Preventive Medicine 7, 394-406CrossRefGoogle Scholar, 398 and references therein. More recent evidence confirms that, atl least at high levels, lead is teratogenic to the developing foetus. See also Silbergeld, supra n 12, 224.
17 43 Fed Reg 52, 959 (1978); Samuelson, J T, “Employment Rights of Women in the Toxic Workplace” (1977) California Law Review 65, 1113, 1115-1117CrossRefGoogle Scholar.
18 Timpo, , Amin, , Casalino, & Yuceoglu, , “Congenital Lead Intoxication” (1979) J Pediatric 765, 766CrossRefGoogle ScholarPubMed.
19 Rom, supra n 14, 545; Timpo, Amin, Casalino & Yuceoglu, supra n 18, 766.
20 Bridbord, “Low Level Exposure to Lead”, supra n 12, 271, 272.
21 Ferm, V H & Carpenter, S J, “Developmental malformations resulting from the adminisration of lead salts” (1967) Exp Molec Path 7:208CrossRefGoogle Scholar; Gilani, SH, “Congenital abnormalities ir lead poisoning” Obstet Gynecol (1973) 41:265Google Scholar.
22 K Bridbord, “Low Level Exposure to Lead in the Workplace” supra n 12, 268.
23 Hricko, supra n 13, 396; Silbergeld, supra n 12, 225 has summarised the conclusions to be drawn from experimental studies on lead as follows: (I) lead at relatively low doses is a reproductive toxin in both male and female parents; (2) the reproductive toxicity of lead can be produced both after chronic exposure during early development, and after acute exposure of adults; (3) many of the effects of lead, particularly on early stages of reproduction, appear to result from actions on physiological functions in the parents rather than a consequence of a special sensitivity of the zygote/blastocyst/embryo; (4) lead, both organonetal and inorganic compounds, is mutagenic in both somatic and germ cells; and (5) some reproductive effects of lead are transmissible and can affect the reproductive capacity of the offspring of the exposed generation as shown for the male offspring of exposed males.
24 N F Angell & J P Lavery “The relationship of blood lead levels to obstetric outcome” '.1982) Am J Obstet Gynecol 142:40.
25 Bridbord, supra n 12, 273.
26 The examples used are taken from Reproductive Hazards in the Workplace, Office of Technology Assessment, Washington DC, 1985.
27 Even the process of hazard identification is not entirely value-free. A researcher's own values may determine the kind of research that is conducted, and choice is constrained by the need to obtain research funding, a process which, at least in some circumstances, may be influenced by political considerations. Thus research on the reproductive health effects of various substances, including lead, has focused on female-mediated developmental effects and has generally overlooked the possibility of male-mediated developmental effects or other reproductive effects. As the USA Office of Technology Assessment (supra n 26, 18) has pointed out: “This bias may be reflected in employment policies that exclude women from the workplace based on scientific data but allow men to remain exposed because of a lack of data concerning male reproductive health effects. Current scientific evidence is in most cases inadequate to determine the extent to which a substance that is hazardous to one sex may or may not be hazardous to the other.”
28 This option has been urged by a number of women's groups, notably the Women's Electoral Lobby in its submission to the Commission of Inquiry into Occupational Health and Safety (Commissioner T G Williams) NSW Gov Printer 1981: “Concern about the effects of job health hazards on the reproductive function of women should not be an excuse to deny women access to certain jobs. Rather, legislation should be enacted which clearly guarantees every working man and woman in the nation, safe and healthful working conditions”.
29 Fed Reg 54, 354 ff (1978). Evidence in the Occupational Safety & Health Administration citation hearing for American Cyanamid's Willow Island, West Virginia lead chromate plant mggested that a “technically feasible retrofit” of the plant to substantially reduce lead exposure evels in certain areas would cost the company $2.6 million, an amount determined by the court to be economically infeasible for this employer. Secretary of Labor v American Cyanamid Co, OSHRC Docket No 7902438, (Aug 20, 1980), 18.
30 Against this it might be argued that the industry al present has insufficient incentive to develop a more effective control technology, and that if it is allowed to continue along its present path, then a growing awareness of the extent of the lead hazard will eventually result in demands for stringent standards of a kind the industry will be unable to achieve. If so, the industry may become socially unacceptable in the same way as the asbestos industry (and asbestos mining in particular) has in North America. On this argument, the long-term interests of the industry are to develop an effective control technology now. On this view, legislation could provide an appropriate incentive to attain hitherto infeasible control technology (see for example the case of Vinyl Chloride Monomer (VCM), Epstein, , The Politics of Cancer (1978)Google Scholar. This would involve a legal obligation to achieve a 30 μg/100 ml exposure level, to be gradually achieved and phased in over a 5-10 year period. However, there is insufficient evidence to further assess the viability of this proposal or whether the analogy with the asbestos industry is a good one.
31 Watt v Rama [1972] VR 353; McGhee v National Coal Board [1972] 3 All ER 1008; and Luntz, , Hambly, and Hayes, Torts Cases and Commentary (2nd ed 1985) 403Google Scholar. It is also possible that children might be born defective because of damage lead causes to the reproductive systems of men, but as so little research has been conducted on this subject and so little is known, it is extremely unlikely that either causation or breach of a duty of care could be established, and thus the chances of a successful negligence action against the employer are minimal.
32 Under today's working conditions and control techniques, medical opinion is that womel are under no greater risk than men.
33 World Health Organisation, Technical Report Series 647 Recommended health-based limits in occupational exposure to heavy metals, 1980, 62.
14 Angle, & McIntire, , “Lead Poisoning During Pregnancy”, 108 Am J Dis Child 436 (1961)CrossRefGoogle Scholar.
35 Equal Opportunities Commission (UK), Health and Safety Legislation: Should We Distinguish Between Men and Women?, 1979, para 407.
36 Cited in Trebilcock, A, “OSHA and Equal Opportunity Laws for Women”, (1978), Preventive Medicine 7, 372CrossRefGoogle ScholarPubMed.
37 Ibid, 100.
38 In the UK there was considerable disagreement between the Health and Safety Commission, which preferred to exclude all except the first group, and the Equal Opportunities Commission, which wished to exclude all except the third. The EOC view point has apparently prevailed. See Health and Safety at Work, May 1982, 24.
39 World Health Organisation, supra n 33, 62-75.
40 Ibid.
41 Stellman, , Women's Work, Women's Health (1977), 179Google Scholar.
42 Samuelson, supra n 17, 1142.
43 Office of Technology Assessment, supra n 26, 20.
44 The arguments are quite distinct from those relating to abortion, where the outcome of state non-intervention is the elimination of the foetus. In contrast, in the case of hazardous working conditions, the result of state non-intervention will often be the birth of an individual with defects which may require state intervention and support for many years.
45 Watt v Rama [1972) VR 353.
46 For a general summary see Encyclopaedia of Occupational Health and Safety, International Labour Organisation (ILO), Geneva, 1983, 1206, 1207.
47 Gun supra n 13, 4.
48 As defined under the third of the EOC's criteria see p 255 above.
49 Gun supra n 13, 6, reports that the experience of the South Australian Occupational Health and Radiation Control Branch in battery manufacturing is that there is no job in the production area where a blood lead level of 40 μg/100 ml or more is not likely to occur.
50 See generally Gun supra n 13, 7.
51 Cited in Gun supra n 13.
52 Gun, supra n 13, 9.
53 National Health and Medical Research Council, Approved Occupational Health Guide: Lead (Inorganic), Commonwealth Department of Health, 1980, 3.
54 43 Fed Reg 52, 973 (1978).
55 Law Reform Commission (Cth), Report No 22: Privacy, 1983, 1.
56 See generally “Guidelines on Manual Handling”, ACTU-VTHC Health and Safety Bulletin, No 25, 1983 22, 25, 26.
57 Furnish, HA, “Prenatal Exposure to Foetally Toxic Work Environments” (1980) 66 Iowa Law Review 63, 74Google Scholar.
58 For the USA see Olmstead v United States (1928) 227 US 438 (Brandeis, J dissenting), quoted in Whalen v Roe (1976) 429 US 589, 599 n 25, as the basis for the right to avoid disclosure of personal matters.
59 Bor, V L, “Exclusionary Employment Practices in Hazardous Industries: Protection or Discrimination?” (1978)5 Columbia Journal of Environmental Law 97, 139Google Scholar. As Bor points out, one would therefore have to establish rational criteria for identifying those employees who must submit to medical examinations. Once the people who meet those criteria are left to identify themselves, they are confronted with the same dilemma as if the examinations were optional: identifying themselves as potentially at risk and (depending whether benefits are protected) facing possible discharge or demotion, or refusing to come forward and foreclosing the opportunity to safeguard their functional capacities.
60 For example, while in the United States there was a powerful and successful push from, such groups for the elimination of protective legislation, the Sex Discrimination Act 1975 in he United Kingdom explicitly exempted protective laws. This decision not to repeal these laws eceived considerable support from many of the same groups who supported the Sex)iscrimination Act. See also Coote, A & Gill, T, Women's Rights: A Practical Guide (2nd ed 1977)Google Scholar and Jean Coussins, The Equality Report National Civil Liberties League (1976).
61 However, the HSE now tacitly accepts the EOC view, and the HSE's Deputy Director o Medical Services has gone so far as to claim that “provided you give women all the informatio, it will never be necessary to legislate because women who want children will have suff1i:ient mater nal common sense to avoid risks” Health and Safety at Work, May 1982, 25.
62 US Department of Labour OSHA Safety & Health Standards (29 CFR 1910) 1980.102 (Italics added).
63 Swinton, K, “Regulating Reproductive Hazards in the Workplace Balancing Equality and Health” (1983) 33 University of Toronto Law Journal 45, 73CrossRefGoogle Scholar.
64 Gun supra n 13, 4-8.
65 It was for this reason that the Factories Act 1961 (UK) formerly distinguished between women's employment in certain lead processes, where it was prohibited, and in others where t was permitted subject to certain control measures being taken.
66 In any event, as it becomes increasingly recognised that lead also damages the male reproductive system, and as women gain greater opportunities to work in lead processes, sc in the long term it will be necessary to develop industrial technology, work processes and employment practices which will allow both sexes to work safely with lead.
67 Gun supra n 13, 12.