"It's unfortunate that companies enter into agreements that have the potential to reinforce gender stereotypes."
Two men who looked after their newborns when their wives had caesareans were denied primary carer's leave by Australia's biggest miner.
The Fair Work Commission found the two fathers were not entitled to parental leave under BHP's enterprise agreement, in a judgment brought down on Thursday.
The company, which is the third biggest in Australia, has been criticised for showing poor commitment to gender equity in the workplace.
Helen Conway, the director of the Workplace Gender Equality Agency, attacked BHP's decision to use a technicality to deny leave to the fathers, who were employed in the Crinum mine in Queensland.
She said that the problem lay with the agreement which the Commission had to interpret.
She also said that the Commission determined the agreement entitled the company to require proof that the mother is not the primary carer, in order for the father to access primary carers leave.
"This is an evidentiary burden that would not apply to the mother . . . the assumption that the mother is the primary carer is rooted in gender stereotypes," she said.
BHP argued that a mother is not automatically incapable of providing care to her child because she has given birth by caesarean section.
Conway said it was unfortunate that companies entered into agreements that had "the potential to reinforce gender stereotypes".
The two men looked after their babies while their partners were recovering.
BHP said its agreement did not mean male employees could have primary carer leave just because their partners needed support.
The president of the Queensland branch of CFMEU, Stephen Smyth, said BHP's decision to deny the leave showed the big miner's commitment to diversity was shallow.
As soon as his members tried to exercise their right to this leave, the company decided to challenge.
"[The company] tries to portray itself as sharing and caring [but] to be perfectly honest that's a façade," he said.
He said that the union had fought for an agreement which provided extra support to workers because so many families who lived near mines did not have the benefit of living near extended family networks.
The union is considering appealing the judgment.
Catherine Brooks, principal of the workplace relations teams for legal firm Moore's and an accredited Workplace Relations specialist, said the Fair Work Commissioner's decision was correct based on the agreement.
But she too was critical of BHP. She said it had made a conservative decision to pursue the technicality, most probably based on a longstanding battle with the union.
Brooks said most workplaces would be far more concerned with ensuring a positive workplace culture and would utilise their discretion around parental leave policies.
"I think an employer would need to seriously consider whether they want employees who stay a year or 20 years . . . and if [20 years is] the case, they want to create longevity in a skills shortage," she said.
She said that modern industrial relationships in any company should be built around the kind of culture where employees are trusted and that these sorts of matters should be dealt with internally.
She also said these kinds of decisions could lead to reputational damage.
"You want the kind of workplace culture which will ensure people can stay around."
Brooks said the decision also had wider implications for those seeking parental leave.
"Once a woman has given birth she will need to think not only of her own circumstances but those of her partner," she said.
"And if she thinks she can't be the primary carer of the child straight away after giving birth she will have to be very proactive to make sure her partner- male or female- attends a doctor to obtain medical certificate and the crucial part of this is that the partner will need to be able to provide a medical certificate specifying that the mother cannot be the primary carer."