Berry Street Victoria exemption application – Apr 2017

Berry Street Victoria applied to the Victorian Civil and Administrative Tribunal for an exemption under section 89 of the Equal Opportunity Act 2010. The application sought to allow Berry Street to discriminate by employing women only in its Northern Family Violence Services (the conduct).

Berry Street clarified that “women only employment” related to any person who identified as a woman.

The Commission intervened in this application to make submissions about what discrimination might arise from “women only” employment and whether the exception in section 28 of the Equal Opportunity Act 2010 might apply to the conduct. The Commission’s submissions considered the meaning of the protected attributes of “sex” and “gender identity” and submitted that women-only employment may result in both sex and gender identity discrimination. The Commission requested that any decision by the Tribunal provide clarity on this point.

The Tribunal considered that the conduct involved discrimination on the basis of sex and gender identity, but that s 28 of the Equal Opportunity Act 2010 applied to the conduct of Berry Street. This was because the women were being employed for family violence services, which constituted a special needs service under the exception in s 88 of the Equal Opportunity Act 2010. The application was struck out as no exemption was required.

The Commission’s submissions and the Tribunal’s orders can be found below. The orders are not public but are published with the consent of Berry Street Victoria.