понедельник, 12 января 2015 г.

Австралия (трудовые отношения) Нарушение трудового законодательства при поиске работников (требования возраста, пола), судебная практика




Workplace Bulletin
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Willmott v Woolworths Ltd: What you can 

learn

Monday, 12th January 2015, by Loran McDougall

In today's Workplace Bulletin:
  • Case Law: Employer ordered to pay damages for discrimination during recruitment
Dear Reader,

Anti-discrimination laws do not just apply to your current employees. You also need to ensure that you don’t discriminate against potential employees at any point during your recruitment process. This applies when you are:
  • advertising jobs;
  • requesting information from candidates;
  • shortlisting and interviewing candidates; and
  • testing candidates.
Even if you use a recruitment agency, you still have the responsibility not to discriminate for an unlawful reason when recruiting. As such, you may still be liable under anti-discrimination legislation.
Today’s bulletin focuses on requesting information from candidates, in light of a recent Queensland case in which a large employer discriminated against potential employees by asking for their date of birth and gender.
Read on for Charles Power’s summary of the case, and what you can learn from it.
Until next time,
Jessica Oldfield
Loran McDougall
Editor
Workplace Bulletin
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Case Law: Employer ordered to pay

damages for discrimination during

recruitment

by Charles Power
Editor-in-Chief, Employment Law Practical Handbook
The Willmott v Woolworths Ltd (2014) case arose after the applicant alleged Woolworths breached Queensland’s anti-discrimination laws by forcing prospective employees to provide their date of birth and gender.
Section 7 of the Anti-Discrimination Act 1991 (Qld) prohibits discrimination on the grounds of age, sex and gender identity (among other things). The legislation states that a person cannot be asked to provide information that may be used for discriminatory purposes. However, the request will not amount to discrimination if the information is ‘reasonably required’ for a non-discriminatory purpose.
Woolworths conceded its mandatory fields requiring age and gender could amount to discriminatory conduct. However, it argued:
  • the applicant’s age was necessary because some jobs could only be performed by people over the age of 18; and
  • it required the applicant’s gender to comply with the Commonwealth’s workplace gender reporting requirements.
These arguments were rejected by the Tribunal, which held that an applicant’s age and gender were not reasonably required. Senior Member Oliver said Woolworths could have simply asked whether the applicant was over 18 and determined gender by taking a ‘reasonable estimate’ based on names.
The applicant was ‘sickened beyond belief’ at Woolworths’ disregard for anti-discrimination laws – which the Tribunal inferred meant he had suffered humiliation and embarrassment – and refused to complete the form. He was awarded $5,000 in damages (which included a notional amount for loss of a chance).
What can you learn from this case?
Willmott v Woolworths Ltd (2014) highlights the need for employers to only request information from potential employees when that information is necessary to determine whether the person can fulfil the inherent requirements of a role.
You should review your application forms in light of your State/Territory and Commonwealth anti-discrimination legislation to ensure you are compliant.
To be on the safe side, any initial application forms should only request information that is absolutely necessary to assess the potential employee’s suitability. As the person progresses through to interview stage, it may be more reasonable to ask for further information to determine their suitability for an exact role. For example, you are likely to be reasonably required to ask for a person’s date of birth when they commence employment with you so that you can comply with Fair Work Act 2009 (Cth)notice requirements.
Regards,
Charles Power
Charles Power
Editor-in-Chief

Employment Law Practical Handbook




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