A Queensland non-profit has successfully applied for an exemption to employ only women
Children by Choice Association Incorporated [2023] QIRC 293
Summary
A Queensland non-profit organisation has successfully applied to the Queensland Industrial Relations Commission (the Commission) for an exemption to employ only women.
Facts
The applicant, Children by Choice, is a non-profit organisation whose primary objective is to ensure women and pregnant people experiencing hardship or distress with a pregnancy receive counselling, information, material aid, and referral. Its clients include victims of domestic violence, sexual assault and reproductive coercion perpetrated by men.
Children by Choice applied for an exemption from the operation of sections 14, 15, 15A, 124 and 127 of the Anti-Discrimination Act 1991 (Qld) (AD Act) in relation to the attribute of "sex" in section 7(a) of the AD Act. At the time of the application, Children by Choice held an exemption to employ only women in specified roles, which was soon to expire. The application sought a broader exemption, allowing the organisation to employ only women across all roles.
Children by Choice sought an exemption that is not referable to any particular role in the organisation because roles within the organisation are subject to change depending on funding and project work. In support of the application, Children by Choice submitted that the exemption is necessary:
to employ sufficient levels of staff and meet its objectives and obligations under funding arrangements;
to provide a safe space for clients, as many women and pregnant people request services be provided by women;
because due to the physical layout of the office, the small number of staff (approx. 12 people), the organisational structure and the organisation’s limited budget, there is no reasonable means by which it can create a role that a man can perform; and
as it might otherwise be exposed to a risk of complaints under the AD Act.
The Queensland Human Rights Commissioner (HRC) submitted that excluding men is prima facie unlawful sex discrimination under the AD Act, and the exemption should be limited to roles that require direct contact with clients.
Decision
The Commission found it reasonable and appropriate to grant Children by Choice the exemption under section 113 of the AD Act. In doing so, Industrial Commissioner Pidgeon took the following matters into account:
Whether the exemption is necessary
The organisation's structure, budget, small team and premises, which meant all staff were visible to and had contact with clients, were key considerations.
The HRC submitted an exemption for administrative roles was not necessary, suggesting other means could achieve the purpose of the exemption such as changing the office layout and minimising contact between non-client-facing staff and clients. Children by Choice submitted that these steps were not possible, appropriate or practical.
The Commission favoured Children by Choice's submissions, finding that all roles involved some "outward facing" duties and it would not be practical for some members of the organisation's small team to have their duties adjusted to preclude contact with clients or to change the office layout.
The Commission held that an exemption was necessary as the employment of only women would otherwise contravene the AD Act, and went on to consider the following matters in deciding whether to exercise the discretion to grant the exemption.
Whether there are any non-discriminatory ways of achieving the purpose of the exemption
The Commission did not identify a way of achieving the objects or purposes for which the exemption is sought.
Whether the exemption is in the community interest;
The Commission accepted that the services provided by Children by Choice are important for its clients and that the exemption is in the community interest.
Whether the exemption application is supported by others;
The exemption application was supported by other organisations, including the Domestic Violence Action Centre, DVConnect, the Centre Against Domestic Abuse (Moreton Bay region) and Women’s Health and Equality Queensland.
Whether the exemption is consistent with the objects and purposes of the AD Act; and
Industrial Commissioner Pidgeon stated that "[i]t is clear the AD Act anticipates that there may be a need for exemptions to be granted in particular circumstances" and the exemption sought was consistent with the purposes and objects of that act.
Human rights considerations
Children by Choice bore the onus of showing that the limitation is justified and proportionate under section 13 of the Human Rights Act 2019 (Qld) (HR Act). A human right may be subject only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
Among other factors, the Commission considered:
| Factor under section 13(2) of the HR Act | Relevant consideration |
| The nature of the human right | The right to equality before and equal protection of the law without discrimination and equal and effective protection against discrimination |
| The relationship between the limitation and its purpose | The limitation allows Children by Choice to:
|
| Whether there are any less restrictive and reasonably available ways to achieve the purpose | No less restrictive and reasonably available ways were available |
The Commission determined that an exemption was necessary, reasonable, and appropriate and any limitation on human rights arising from granting the exemption was proportionate when considering the exemption's purpose and impact.
Commentary
The exemption granted by the Commission applies in relation to the advertising, recruitment and employment practices for Children by Choice, a broader exemption than is typically granted (usually, for named positions within an organisation).
The Commission exercised its discretion based on the specific facts of the organisation, including the small number of staff, the nature of its services and clients, office layout and its funding and organisational arrangements. In particular, the Commission accepted that it was not appropriate or practical to take steps to enable a man to work at the organisation, meaning that there was no role a man could perform.
The decision is a useful example for small, budget-constrained organisations that provide gender-specific services as to the extent of exemption they might be able to obtain.
Authored by Marine Chu, Lawyer, Allens.