Can you hire an all-female staff?

The Queensland Industrial Relations Commission (QIRC) recently dealt with an employer’s request for it to be allowed to hire only all-female staff despite concerns that it may be against anti-discrimination laws.

Children by Choice is 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.

Its services include education, community engagement, research, advocacy and project work. It receives funding from the Department of Justice and Attorney-General under Sexual Violence and Women’s Support Services investment specifications. Twelve women are currently employed by the employer.

The employer said that the nature of its work and its clients require an exemption under the state’s Anti-Discrimination Act 1991 so the employer “can advertise for, recruit and employ only women to all positions.” It said the exemption will enable it to “provide services in a space and manner whereby women and pregnant people feel safe and comfortable.”

The organisation further said that 43% of its clients have reported experiencing domestic violence, sexual assault, or reproductive coercion, predominantly perpetrated by men.

‘Exemption is necessary’

“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,” the records said.

The employer argued the exemption is necessary for Children by Choice 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.

“A high number of women and pregnant people request services be provided by women, and therefore, it is necessary for employees of Children by Choice to be women,” the employer said.

Meanwhile, the Human Rights Commissioner argued against the employer’s exemption request and said that Children by Choice has “not demonstrated that restricting work to women only is a legitimate and proportionate limitation on the right to equality and the protection without and against discrimination.”

Would an all-women staff be allowed?

In its decision, the QIRC said that granting an exemption is “necessary, reasonable and appropriate.”

“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,” it said.

“Human rights are significantly important,” the Commission added. It noted “the limitation is confined to men who are prospective employees of Children by Choice, an organisation employing approximately 12 people at any one time.”

“The importance of the limitation [should be balanced], which is to ensure that women and pregnant people, many of whom are vulnerable and therefore request that services be provided by women, feel safer in an environment where they will not come into contact with men,” the Commission said.

The QIRC granted the exemption, adding that it "applies only in respect of actions or omissions which are reasonably necessary in relation to the advertising, recruitment and employment practices." Additionally, it said the exemption shall apply for a period of five years.