Australian employment law
When hiring staff, it is critical for employers to ensure that all candidates are provided with an equal opportunity. Employers should carefully consider the content of their job advertisements, the questions candidates are asked during an interview and the selection criteria for the position. See the ‘What Not to Ask’ box for some common examples.
Under the Fair Work Act 2009, it is open for a disgruntled unsuccessful candidate to seek recourse against an employer they believe has made a decision not to hire them on the basis of their:
- colour
- sex
- sexual preference
- age
- physical or mental disability
- marital status
- family or carer’s responsibilities
- pregnancy
- religion
- political opinion, or
- national extraction.
Once a candidate makes such an allegation, it is up to the employer to prove that one of the above attributes was not a part of their decision-making process. That is, a candidate can make a successful claim even if the attribute only formed a small part of the employer’s decision. State-specific discrimination legislation also exists.
Indirect discrimination
On the surface, the above concepts may seem simple – do not discriminate against candidates and you’ll be right! However, employers need to be mindful of having an unintentional or unconscious bias towards certain types of candidates.
The Queensland Anti-Discrimination Tribunal, for example, found that Virgin Blue’s recruitment process was skewed towards younger candidates. Virgin Blue’s assessors, who were predominantly under 25, were held to have an unconscious predisposition to selecting candidates of a similar age. (Hopper & Ors v Virgin Blue Airlines Pty Ltd – Final [2005] QADT 28).
Employers therefore, when using a selection panel in the recruitment process, should do their best to ensure that panel members possess wide-ranging attributes. If the circumstances permit, this may include having both males and female, younger and older as well as ethnically diverse panel members.
Past history
Although employers should generally be wary of bias to certain types of candidates, they are allowed to ask applicants questions about their past or present illnesses and/or injuries. An employer may choose to do this during the interview or through an application form. However, the question must be directed towards assessing whether the applicant is able to carry out the inherent requirements of the position. It is unlawful for an employer to ask candidates questions about their medical history that do not go towards making this assessment.
It is also open for employers to seek information from candidates about their police history, but again they need to ensure that the records relate to the position’s requirements. State specific legislation prohibits discrimination on the basis of irrelevant criminal records or spent convictions.
