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Pro-choice group can employ women only

A Brisbane pro-choice counselling, education and advocacy service has succeeded in its bid for an exemption to employ women only.

Children by Choice Association Inc. applied to the Queensland Industrial Relations Commission (QIRC) in August for an exemption from operation of ss 14, 15, 15A, 124 and 127 of the Anti-Discrimination Act 1991 (Qld) in relation to the attribute in s 7(a).

It submitted that an exemption was necessary, and for all roles at the organisation, “to meet its objectives and service provision obligations under funding arrangements by providing services in a space and manner whereby all women and pregnant people feel safe to attend and participate in”.

In her decision delivered last week, Queensland Industrial Relations Commissioner Pidgeon agreed, after considering opposition from the Queensland Human Rights Commission (QHRC).

The QHRC argued excluding males from work with the agency amounted to prima facie unlawful sex discrimination under the Act, and submitted that the exemption should be limited to roles which required direct contact with clients.

It also argued Children by Choice had not demonstrated that restricting work to women only was a legitimate and proportionate limitation on the right to equality and protection from discrimination under the Human Rights Act 2019 (Qld).

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In its application, Children by Choice described itself as “an independent non-profit [organisation] with the primary objective of ensuring that women and pregnant people who experience hardship or distress with a pregnancy receive high-quality and unbiased decision-making counselling, evidence-based information, material aid, and referral about all pregnancy options, including abortion, adoption and parenting”.

The Toowong-based service stated it employed 12 people and received funding from the Department of Justice and Attorney-General under Sexual Violence and Women’s Support Services.

It stated 43 per cent of clients had reported experiencing domestic violence, sexual assault, or reproductive coercion, predominantly perpetrated by men.

“Due to these experiences, many clients are often fearful and/or have a trauma response to men and would not feel comfortable or safe receiving services from men or attending a venue where men are present,” it said.

It added that women at the point of intake often sought confirmation their session would be facilitated by a woman, and often reported they felt more comfortable discussing an unexpected pregnancy with a woman.

The application contained letters of support, including from the Domestic Violence Action Centre, DVConnect, the Centre Against Domestic Abuse (Moreton Bay region) and Women’s Health and Equality Queensland.

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The QHRC noted that the agency’s current five-year exemption, which was granted in 2018 and expires in November, applied only to specified roles including Counsellors, Manager, Communications Coordinator, Campaign Coordinator, and Education and Training Coordinator.

It agreed that “an exemption relating to the roles requiring direct contact with clients is necessary and that there are no other reasonable means of achieving the purpose of providing the services to women in a safe and supportive manner”.

However, it questioned whether an exemption was necessary for roles not requiring direct contact with clients.

Commissioner Pidgeon was satisfied with Children by Choice’s response.

“It seems clear to me on the basis of the submissions above that all roles involve some ‘outward facing’ duties and that it would not be practical for some members  of a very small team to have their duties adjusted to preclude them from being in contact with the clients of the applicant,” she said.

“Further, I accept that the nature of the services provided by Children by Choice means that it is not possible or appropriate for it to be required to structure itself such that some employees spend little or no time in the office or work varied hours.

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“I accept the submissions of the applicant regarding the nature and layout of the office and impracticality of readjusting the layout or design of the office to enable a man to work in the office, and at no stage become visible to or come into contact with a client who is moving about within the small office premises.”

Commissioner Pidgeon accepted that there were no less restrictive and reasonably available ways to achieve the purpose within Children by Choice’s funding and organisational arrangements.

“I find that Children by Choice has discharged its onus to demonstrate that granting an exemption is necessary, reasonable and appropriate and that any limitation on human rights arising from the granting of the exemption is proportionate when balancing the impact of the exemption with the purpose of the exemption,” she said.

She ordered that the exemption would apply for five years, and “only in respect of actions or omissions which are reasonably necessary in relation to advertising, recruitment and employment practices”.

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