Prospective employers can request a workers’ compensation claims history for a prospective employee (Claims History) under the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2013 (Qld) (WC Act). The use of a Claims History in recruitment may expose an employer to liability under the general protection provisions of the Fair Work Act 2009 (Cth) (FW Act).
Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2013 (Qld)
Use of Claims History
A prospective employee must endorse a prospective employer’s application for a Claims History.
The Claims History sets out the number and nature of a prospective workers’ current or previous applications for compensation or claims for damages under the WC Act or any previous workers compensation legislation.
On receipt of a Claims History, a prospective employer must not:
- disclose the contents or information within the Claims History;
- allow access to the Claims History; or
- use the contents or information within the Claims History for any purpose other than the employment process. Breach of these provisions may expose a prospective employer to a criminal penalty of up to 100 penalty units.
Request for Disclosure
A prospective employer may also request that a prospective employee disclose any pre-existing injury or medical condition. Such a request by a prospective employer must be in writing and include:
- the nature of the duties and the subject of the prospective employee’s application; and
- warnings under sections 571B(2), 571C and 517C(2) of the WC Act in relation to consequences of providing misleading or false disclosure.
Relevant definitions from the WC Act include:
- Prospective employer means a person conducting an ‘employment process’ to select a prospective worker for employment.
- Prospective worker means a person subject to an employment process for selection for employment.
- Employment process means any process for considering and selecting a person for employment.
- Pre-existing injury or medical condition means, for an employment process, an injury or medical condition existing during the period of the employment process that a person suspects, or ought reasonably to suspect, would be aggravated by performing the duties the subject of employment.
Fair Work Act 2009 (Cth)
The general protection provisions of the FW Act consolidate a number of unlawful workplace practices including the concept of “adverse action”.
A prospective employer takes adverse action against a prospective employee if the prospective employer threatens to or takes action by:
- refusing to employ the prospective employee; or
- discriminating against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee.
Further, a prospective employer is prohibited from taking adverse action against a prospective employee because of the prospective employee’s physical or mental disability (discrimination).
Prospective employees includes persons who a prospective employer has formed an intention to employ and persons whose prospective employment is being considered (ie. persons who have made an application for employment or are negotiating in relation to possible employment).
A prospective employer will not take adverse action if the prospective employer’s decision about a prospective employee is on the basis of the inherent requirements of the position the subject of the employment process.
The inherent requirements of a position:
- are determined according to common sense and objective fact;
- are essential elements of a position, not additional or incidental elements; and
- are those which would fundamentally change the position if removed.
Application for Breach
Prospective employees who believe a prospective employer has taken adverse action against them may make an application to the Fair Work Commission.
Once an applicant has made out the basic elements of their claim, the onus is on the respondent (in this case the prospective employer) to rebut the prospective employee’s claims and to substantiate a case to the contrary.
Distinct from an application for unfair dismissal, claims under the general protection provisions of the FW Act, including adverse action for prospective employees, have no cap on the damages which may be awarded.
Tips for Prospective Employers
To utilise the provisions under the WC Act while minimising a risk of claim under the FW Act, prospective employers should ensure:
- job application materials require a prospective employee to disclose pre-existing injuries or medical conditions, provide consent to request a Claims History and include the content, form and warnings required by the WC Act;
- information garnered by a Claims History or prospective employee’s disclosure is kept confidential and if a prospective employee is employed, the information is not used during the course of employment (as adverse action extends to employees);
- position descriptions and duties statements are relevant, recent and reflect, in appropriate detail, the inherent requirements of the position;
- pre-employment medical assessments are used strictly to determine fitness for duty with reference to the position descriptions and/or duties statements;
- decision makers are equipped with knowledge of the general protection provisions and otherwise act within the bounds of the FW Act; and
- any decision not to employ a prospective employee on the basis of a Claims History or disclosed pre-existing injury or medical condition is appropriately recorded, and supplemented by a consideration of the inherent requirements of the position and/or results of the pre-employment medical assessment.