Recruitment and termination

Employers must make recruitment and termination decisions, as well as decisions that affect a worker’s terms and conditions of employment, that are fair, transparent, and based on merit. The Anti-Discrimination Act 1991 prohibits discrimination against workers and job applicants.

Recruitment: Finding the best person for the job

Recruitment decisions should be based on qualifications, skills, abilities, knowledge, and experience that the job demands. As far as possible, selection criteria should be expressed in terms of abilities rather than experience and qualifications. Often, people from disadvantaged groups do not have formal qualifications or experience due to unequal opportunities, but may be capable of performing the role.

Inclusive job advertisements

Job advertisements must ensure all suitable applicants feel welcome to apply.

To avoid discrimination:

Focus on job-related skills and responsibilities, not personal characteristics.
Do not use discriminatory language like ‘mature’, ‘youthful’, ‘foreman’ or ‘office girl’.
Clearly describe the role so applicants can apply based on their abilities.
Do not make automatic assumptions about who might fit the role.

Example

Daniel advertised for an ‘office girl’ to work at his real estate agency. Peter, an experienced clerical assistant, felt discouraged from applying due to the discriminatory language.

Application forms and interviews

When assessing candidates, focus on their ability to perform the job. Avoid asking unnecessary personal questions on which discrimination might be based.

Questions to avoid

These include:

age, relationship status, plans to have children
medical history, workers’ compensation claims, sick leave records
religion, sexual orientation, political beliefs.

Tips for interviews

Ask all candidates the same job-related questions.
Ensure questions focus on availability or ability to perform the job, not assumptions. For example, ask ‘Can you work overtime?’ instead of assuming parents cannot.
Avoid questions that don’t relate to the job.
Use selection panels with diverse members, if possible, to reduce bias.
Document recruitment decisions to justify the choice, should a complaint arise.

Example

Christine applied for a receptionist role. At the interview, she was asked about her gender identity and was not given the job because the interviewer assumed she wouldn’t fit in.

Pre-employment tests and medicals

Pre-employment tests and medicals should only be used when necessary for the role and must be applied consistently to all applicants.

Pre-employment testing

Use tests that assess essential job-related skills or abilities, such as a typing test for a data entry role.
Ensure tests are reliable, valid, and free from bias.

Medical testing

Medical tests should only assess whether the candidate can safely perform the job.
Focus on job-related health risks, for example respiratory health for dusty environments.

Medical information

Employers can request medical information from job applicants, but only if it is directly relevant to the role. Requests must comply with the Anti-Discrimination Act 1991 and the Workers' Compensation and Rehabilitation Act 2003.

Requests for disclosure

Employers may request information about pre-existing injuries or medical conditions that could be aggravated by the job.

These requests must:

be made in writing
clearly describe the job’s duties and environment
include a warning that false or misleading information may affect workers’ compensation rights.

Applicants must be given reasonable time to respond. Employers cannot require disclosure if an applicant is hired before being given a reasonable opportunity to comply with a request for information.

Using medical information

Disclosed medical information can only be used for legitimate purposes to:

determine whether the applicant can perform the job’s genuine occupational requirements
assess whether reasonable adjustments can be made to accommodate the applicant’s needs
address workplace health and safety concerns.

Claims histories

Employers can no longer request claims history summaries as this practice was prohibited on 24 September 2015. A claims history summary is a document issued by the Workers' Compensation Regulator that states the number of applications for compensation and claims for damages made by a person, as well as the nature of the applications and claims.

For summaries obtained before 24 September 2015, the information must not be disclosed to anyone else or used outside the recruitment process.

It is an offence to obtain or use any document relating to the workers’ application for compensation or claim for damages for a purpose relating to the employment of the worker.

Employment agencies

Employment agencies must comply with the Anti-Discrimination Act 1991 and not discriminate against job seekers or employers. Agencies must not:

discriminate by refusing to provide services to job seekers or employers.
offer services on discriminatory terms or supply services in a discriminatory way.
discriminate by treating candidates or employers unfavourably in connection with recruitment services.

Identified positions

A position may be reserved for people with a specific attribute, such as race, in the case of Aboriginal or Torres Strait Islander people, to address past disadvantage or meet unique job requirements.

Where race discrimination is allowed

The Anti-Discrimination Act 1991 sets out circumstances, called ‘exemptions’, that allow discrimination on the basis of an attribute that would otherwise be unlawful. Exemptions include:

Genuine occupational requirement exemption (section 25)

A person may impose a genuine occupational requirement for a position which could include that the role can only be performed by someone of a specific race, due to the nature of the role.

For example:

engaging with Aboriginal peoples and/or Torres Strait Islander peoples to provide services specific to them.
providing training about Aboriginal and Torres Strait Islander culture.

Equal opportunity measure exemption (section 105)

A person may adopt measures, such as running programs, scholarships, and cadetships to promote equal opportunity for people from an attribute group that has been historically disadvantaged, such as Aboriginal peoples and/or Torres Strait Islander peoples.

For example:

Designating trainee positions in the mining industry for Aboriginal or Torres Strait Islander people so that they can learn skills for work.

Welfare measure exemption (section 104)

A person may adopt measures, such as programs, services, or concessions to benefit members of an attribute group.

Providing access to a First Nations health service for Aboriginal and/or Torres Strait Islander workers.

Advertising identified positions

To reduce the risk of complaints, employers should clearly state the legal basis for an identified position. For example:

‘This role requires cultural knowledge and is a genuine occupational requirement under section 25 of the Anti-Discrimination Act 1991.’
‘This program is an equal opportunity measure under section 105 of the Anti-Discrimination Act 1991 to promote diversity in this industry.’

Tribunal exemptions

Employers may apply to the Queensland Industrial Relations Commission for a work-related exemption to allow conduct that would otherwise be discriminatory. They must show that the conduct would be likely to contravene the Act and is not covered by general exemptions in the Act (such as welfare measures or equal opportunity measures) or specific exemptions in the work area.

Exemptions may be granted for a period of up to 5 years.

Read more about applying for a Tribunal exemption.

Termination, retirement and redundancy

Employers must ensure that termination, retirement, and redundancy decisions are not for a discriminatory reason.

Termination

Workers may not be dismissed because of their:

age, sex, relationship status, or family responsibilities
pregnancy or plans to become pregnant
impairment, race, religion, or sexual orientation.

Example

When Aadesh turned 60, his employer required him to undergo a medical test because of his age, even though his job did not involve physical work. After being placed on short-term contracts due to the test results, Aadesh lodged a complaint and successfully received an apology, compensation, and reinstatement to permanent employment, while the company updated its policies to comply with anti-discrimination laws.

Retirement

Compulsory retirement (except in very limited circumstances) based on age is unlawful.

Employers must not:

require workers to retire at a specific age
use policies or practices to pressure older workers into retirement, such as requiring medical assessments or changing to fixed-term contracts.

Redundancy

Redundancy decisions must be free from bias and discrimination. Employers should not offer redundancies based on personal characteristics, such as age, gender, or pregnancy.

Example

Lucia was offered redundancy after announcing her pregnancy despite being more experienced than a male colleague who was promoted. Lucia successfully claimed discrimination.