Anti-discrimination legislation in Queensland, Victoria, the Northern Territory and the Australian Capital Territory prohibit asking a person, either orally or in writing, to supply information on which unlawful discrimination might be based.
A recent decision of the Queensland Civil and Administrative Tribunal (QCAT) demonstrates the impact these prohibitions have on an employer’s ability to request information of potential job applicants during the recruitment process.
Woolworths advertised a position for a console operator at its petrol outlet at Beerwah in Queensland. Applicants were able to apply using Woolworths’ online application system, in which they were required to answer mandatory questions about their gender and date of birth, as well as being required to provide documentary proof of the applicant’s ability to work, in order to submit the application.
Mr Willmott was a potential applicant who lodged a complaint with the Anti-Discrimination Commission of Queensland arguing (among other things) that Woolworths’ employment application process breached section 124(1) of the Anti-Discrimination Act 1991 (Qld) (the AD Act), because it requested information regarding age, gender and right to work that might be used as the basis of unlawful discrimination.
Defence of the claim
Woolworths explained that the mandatory questions were included so that it could discharge its obligations as a potential employer, as well as comply with Commonwealth legislation. It therefore relied on the defence in section 124(3) of the AD Act that the information was reasonably required for purposes that did not involve discrimination. It also argued that requests for information which is required by another piece of legislation does not mean that section 124(1) has been breached
Woolworths’ explanations for requiring the information were compelling and logical. Woolworths argued, in respect of the:
- date of birth information, that it was necessary to determine what entitlements would be paid (as different ages attracted different pay rates under their enterprise agreement) and as a means of differentiating between employees of the same name, in circumstances where they employ approximately 190,000 people across Australia. Woolworths also argued it was necessary because some jobs could only be performed by people over 18 years of age;
- gender information, that it required this information to comply with reporting obligations in relation to gender composition pursuant to the Commonwealth Government’s Workplace Gender Equality Instrument (WGE Instrument); and
- right to work information, that the Migration Act 1958 (Cth) (Migration Act) prohibits it from employing unlawful non-citizens, and that the request for documentation was reasonably necessary to discharge this obligation.
Despite Woolworths’ explanations and the obvious and acknowledged impacts on running an efficient recruitment process, QCAT favoured a strict application of the AD Act by finding for Mr Willmott.
Relevantly, Senior Member Oliver found, in respect of:
- date of birth information, that obtaining age information was not reasonably required for determining entitlements at the application stage and a simple ‘Are you over 18?’ question for roles requiring 18+ age would suffice, together with an explanation as to why the information was needed;
- gender information, the WGE Instrument only imposes an obligation on employers to report information gathered in the recruitment process, but not on applicants. He stated that Woolworths could make a reasonable estimate of the gender of the applicant for the purposes of complying with the WGE Instrument; and
- right to work information, that obtaining proof of right to work in Australia is not reasonably required for a purpose not involving discrimination at the application stage, because simply considering applications for work did not breach the Migration Act provisions about employing unlawful non-citizens. He conceded however that the information would be reasonably required when moving on with the process to the point of considering a prospective applicant for a position.
Woolworths was also unsuccessful in arguing that section 124 of the AD Act is inconsistent with the Migration Act and Privacy Act 1988 (Cth).
Mr Willmott was awarded compensation in the amount of $5,000 for embarrassment, humiliation and some notional amount for the loss of a chance that he may have been successful in the application.
Key takeaway messages for employers
This decision demonstrates QCAT’s strict application of the AD Act. It is a timely reminder to employers of the fine lines walked during the recruitment process.
Employers should critically consider whether the information they propose to request from potential applicants is:
1. information on which unlawful discrimination might be based?
If the information requested relates to a protected attribute such as sex, age, race or family responsibilities (to name a few, there is a long list of protected attributes in the AD Act), then it will be information on which unlawful discrimination might be based.
2. reasonably required for a purpose that did not involve discrimination?
In order to establish the defence under section 124(3) of the AD Act, employers must be able to prove that the information was reasonably required for a purpose that did not involve discrimination. The Woolworths decision demonstrates that business efficiency is not reason enough to show that the information was ‘reasonably required’. Ideally, the purpose for which the information is required should be explained to the potential.
3. being requested at the most appropriate time?
If the information is not reasonably required at that time, even if it will be reasonably required at a later time, then the defence may not be able to be made out. A tiered approach to requests for information may be a useful tool.
‘Pro formas’ or template applications can be dangerous if used without consideration for their use in that circumstance. If you use pro forma application forms or employee information-gathering forms or questionnaires, it is prudent to analyse their appropriateness in each specific circumstance of use and critically consider if the information requested is strictly necessary. If the information requested is not reasonably required for a purpose not involving discrimination, then the form should be amended to suit the specific position.