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
The Willmott v. Woolworths Ltd  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
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
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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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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