Woolworths were found to have discriminated against online job applicants by requiring them to provide their gender, date of birth and proof of their right to work in Australia, as ruled by the Queensland Civil and Administrative Tribunal.
The Tribunal said the requirement to provide the information breached the state’s Anti-Discrimination Act, and that Woolworths could not rely on a defence in section 124(3) that it was information that was “reasonably required“.
The case last arose in December 2013 after an applicant for a console operator role at a Woolworths petrol station in Beerwah complained about having to fill in mandatory fields in the retailer’s national online recruitment system.
Job applications could not be submitted unless the information was provided, but Woolworths has since changed the system, removing some of the fields and making others optional.
Woolworths 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 the retailer to differentiate between employees with the same name, with the company employing 190,000 workers nationwide.
Woolworths also said it had an obligation to seek “right to work” proof to avoid breaching section 245AB of the Migration Act, which prohibits the employment of “unlawful citizens“.
And it sought the gender information to comply with the Commonwealth’s workplace gender reporting requirements, the retailer argued.
QCAT senior member Richard Oliver 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 section 124(3) defence for the information to be “reasonably required“, Mr. Oliver 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 Woolworths, or perhaps when discussing the position and advising an applicant of the entitlements relating to the position…It may well suit Woolworths’ administrative processes to gather the information at an early time, but it cannot be said to be reasonably necessary at the time of completing the online application,” he said.
Gender reporting
Rejecting Woolworths’ argument that it was required to obtain gender statistics, Mr. Oliver said the retailer could make “a reasonable estimate” from the applicants’ names. He noted, in any event, that the Commonwealth had delayed the commencement of the new gender reporting requirements until next year.
No inconsistency with Migration, Privacy legislation
Mr. Oliver said it was “difficult to see how it could ever be justified” for Woolworths 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 Woolworths during the recruitment process,” the senior member said.
He acknowledged that the retailer had now taken “the sensible approach” of asking applicants to nominate the basis on which they have a right to work in Australia. “Then, if an interview is undertaken, the relevant documentation can be produced for sighting by a recruitment officer… This avoids the result that thousands of documents containing confidential information remain stored in Woolworths’ database, or I suppose ‘the cloud’,” he said.
Moreover, the Migration Act did not require an employer to seek proof, at the application stage, of an applicant’s right to work. Mr. Oliver rejected Woolworths’ argument that there was inconsistency between the state anti-discrimination legislation and the federal Migration Act and that the latter must therefore prevail.
Employers did not breach section 245AB by “simply considering applications“, nor by interviewing workers, the Mr. Oliver ruled. He said the section 124(3) defence in the state Act protected Woolworths from engaging in discriminatory conduct in complying with section 245AB, and a conflict did not therefore arise.
Similarly, as the federal Privacy Act contained a similar “reasonableness” defence, there was no inconsistency between it and the state anti-discrimination laws, the senior member said.
Compensation for embarrassment and humiliation
The Beerwah job applicant told the tribunal he was “sickened beyond belief” at Woolworths disregard for the anti-discrimination laws.
“I infer from this statement that he was embarrassed and humiliated in being compelled to provide the offending information before his application could progress. Because of this, he did not proceed with the application and therefore was not considered for the position,” senior member Oliver said.
He awarded the applicant $5,000, including a “notional amount” for the loss of a chance that he might have got the job if Woolworths had not engaged in the discriminatory conduct.
Employers should be prudent
Employers and recruiters should always question whether the information sought through their application process is strictly necessary to fill the role.
Employers should refrain from asking any questions in their job applications that could give rise to claims the information they are seeking might be used for discriminatory purposes.
Only include in the initial application forms the information that is strictly necessary in order to evaluate or make an assessment as to the person’s suitability for the role. If the person moves through to the next level of consideration, which might well be offering employment, then it might well be that other information can be acquired, for administrative purposes.
[Willmott -v– Woolworths Ltd [2014] QCAT 601 (11 November 2014)]
