Name, rank and serial number – grocer caned for “unreasonable” information requests during recruitment of job applicants

A grocery chain discriminated against online job applicants by requiring them to provide their gender, date of birth and proof of their right to work in Australia, a tribunal has ruled.

The case last arose in December last year after an applicant for a console operator role at the grocery chain’s petrol station in Queensland complained about having to fill in mandatory fields in the retailer’s national online recruitment system.

 

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Job applications could not be submitted unless the information was provided, but the retailer has since changed the system, removing some of the fields and making others optional. 

It nevertheless argued that it was reasonable to ask for applicants’ dates of birth because some jobs could only be performed by those 18 and over, and different rates of pay might apply to those under 21. The information also allowed it to differentiate between employees with the same name, with the company employing 190,000 workers nationwide.

The retailer also said it had an obligation to seek “right to work” proof to avoid breaching s245AB of the Migration Act, which prohibits the employment of “unlawful citizens”, and that it sought the gender information to comply with the Commonwealth’s workplace gender reporting requirements.

The Queensland Civil and Administrative Tribunal said the requirement to provide the information breached the state’s Anti-Discrimination Act, and that the retailer could not rely on a defence in s124(3) that it was “reasonably required”. The QCAT senior member said that for those positions requiring applicants to be 18 or over, a simple question asking whether they had reached that age would suffice, together with an explanation as to why it needed the information. This would meet the s124(3) defence for the information to be “reasonably required”, he said.

On the issue of differing entitlements, the senior member said dates of birth were “clearly not necessary until an applicant has been, at the very least been offered a position with the company, or perhaps when discussing the position and advising an applicant of the entitlements relating to the position”.

Regarding gender statistics, it was observed that the company could make “a reasonable estimate” from applicants’ names. QCAT observed that it was “difficult to see how it could ever be justified” for the retailer to insist on the provision of birth certificates, passports and visas when first applicants are first seeking a position.

“Accepting there are approximately 48,000 jobs to be filled each year, with about 670,000 applicants applying for those positions, means there is a substantial amount of confidential information being imparted to the company during the recruitment process,” the senior member said.

He acknowledged that the company had now taken “the sensible approach” of asking applicants to nominate the basis on which they have a right to work in Australia.

The Queensland job applicant told the tribunal he was “sickened beyond belief” at the retailer’s disregard for the anti-discrimination laws. QCAT awarded the applicant $5,000, including a “notional amount” for the loss of a chance that he might have got the job if the retailer had not engaged in the discriminatory conduct.

iHR observes that this case underlines how careful enterprises have to be during the selection and recruitment process, before, during and after conducting interviews. iHR’s Selection and Interviewing skills training is ideal for those new to recruitment responsibilities. It will help participants develop their interviewing skills to select the right person, and they will be equipped with the knowledge and skills to prepare for interviews, determine the right questions to ask and to analyse a candidate’s answers.

 

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