Australia: Asking Questions That Relate To The Diversity Or Sensitive Personal Information Of A Job Applicant Or Employee May Be A Breach Of Australia's Discrimination And Privacy Laws

Last Updated: 30 December 2014
Article by Naomi Sheridan

An administrative tribunal in the Australian state of Queensland recently confirmed that employers with Australian operations must be careful about the personal information they ask job applicants and employees to provide or risk breaching discrimination and privacy laws. 

The Willmott v. Woolworths Ltd [2014] QCAT 601 (11 November 2011) case involved the largest grocery store chain in Australia and a member of the public who considered applying for a position with the company. After reviewing the company's recruitment website, the applicant took offense to some of the questions that were listed and filed a complaint with the Anti-Discrimination Commission of Queensland.   

The company's online application asked applicants to provide their date of birth, gender and documents confirming their legal right to work in Australia.  The Tribunal held these questions contravened the Anti-Discrimination Act 1991. The Tribunal noted the private information would be provided to the company in circumstances where an applicant ultimately may not even be considered for a position. Therefore, the company could not rely on the defense that the information was "reasonably required" pursuant to s124(3) of the Act. 

Companies with Australian operations should consider the questions they are asking employees through their application process and whether the information is necessary because even requesting personal information, including where providing the information is voluntary, can lead to a breach of discrimination and privacy laws.

Many companies with international operations seek to collect and retain diversity information about their job applicants and employees; however, when it comes to Australia, asking for this type of information, including ethnicity information, is fraught with risk, especially during the recruitment stage. 

In this case, the Tribunal said that if a company is recruiting for a position that requires the incumbent worker to be over 18 years of age, simply asking whether the applicant had reached that age would suffice for this purpose.  However, the Tribunal noted that where a company requires this information, the application form should also contain an explanation as to why the information is required by the company.

The retailer's online application form also asked the job applicant's gender, which the retailer argued was required for mandatory diversity reporting purposes pursuant to the Workplace Gender Equality Act 2012. The Tribunal rejected these reasons and commented that the company could make a reasonable determination based on the applicant's name.

Further, asking whether an applicant is legally permitted to work during the recruitment stage appears to be acceptable; however, to avoid a potential discrimination claim, the company should request the relevant information and documentation only after the company has decided to make an offer of employment to the candidate.  As the Tribunal noted, the Migration Act 1958 does not require a company to obtain proof of a person's legal right to work in Australia during the employment application stage.    

Similarly, any other personal information that a prospective employer may require for administrative purposes should ideally be requested after the recruitment steps have been completed and the company is ready to make an offer of employment to the successful candidate. In all, companies must carefully consider whether the information requested is really necessary, and the manner in which it may be used, in determining whether it is appropriate to request the information.

As this case demonstrates, it is generally advisable to refrain from asking for any information that pertains to one of the protected characteristics or grounds under Australia's anti-discrimination laws.

Even though Queensland's Anti-Discrimination Act is more restrictive than those of the other states of Australia, because the website can be accessed by job applicants in any state, companies should ensure their recruitment processes are compliant with Australia's federal and state laws regardless of the states where the company's offices may be located.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Naomi Sheridan
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