If Woolworths is Getting it Wrong, Are You?

A November 2014 decision of the Queensland Civil and Administrative Tribunal (QCAT) creates cause for all employers to carefully review the questions asked, and information sought, during their recruitment applications and interviewing processes.

Woolworths has been found to have breached the Queensland Anti-Discrimination Act (AD Act) by asking online job applicants to provide details of their:

1. Gender
2. Date of birth
3. Proof of their right to work in Australia.

Consistent with many employers’ understanding of the law, Woolworths argued in the proceedings that it was reasonable to ask these questions because:

1. Gender information was required to comply with the Commonwealth workplace gender reporting requirements.
2. Date of birth was required because some jobs could only be performed by those 18 and over, and different rates of pay (junior rates) might apply to those under 21.
3. Employers have an obligation to seek “right of work” proof to avoid breaching section 45AB of the Migration Act which prohibits the employment of “unlawful citizens”.

QCAT Senior Member, Richard Oliver, concluded differently, determining that in order to meet the section 24(3) AD Act defence, for the information to be “reasonably required”, it would have been sufficient for Woolworths to:

1. Ask whether an employee was 18 or over (together with an explanation as to why that information was needed) and that the question should only be asked where it was relevant to the position.
2. Not ask for gender details but rather determine their gender from a “reasonable estimate” by reference to applicants’ names (he concluded that in any event, the gender reporting requirements have been delayed until next year).
3. Ask employees to “nominate the basis upon which they have a right to work in Australia”, rather than demanding that all applicants provide birth certificates, passports and visas, especially when applicants are first seeking a position, as this also raises issues with privacy legislation and the secure storage of voluminous private information.

Senior Member Oliver concluded that Woolworths could have gathered further relevant information needed once employees had been engaged.

The Lessons

In view of this decision, all employers should carefully check their recruitment applications and questionnaires. We recommend that until this issue is further clarified on appeal or by legislation, employers:

1. do not request job applicants to provide their gender
2. ask “Are you over or under the age of 18?” only in the event that it is directly relevant to the position advertised, and ensure that you set out the reasons why the question is being asked
3. ask applicants to “advise the basis upon which you have the right to work in Australia” and, later in the recruitment process, request information from successful applicants (e.g. birth certificates, passports, visas) which supports their “right to work” contentions.

Many employers will find this a frustrating decision, however, it would be a worthwhile New Year exercise for all HR managers and recruitment specialists to revise their recruitment documentation and online recruitment questionnaires.

In February/March 2015 we will be holding our next HR Big Breakfast. This topic will be specifically addressed.

Meanwhile, have a safe and relaxing Christmas and New Year.