There are a number of factors which may contribute to determining the difference between an employee and an independent contractor. However, no single indicator can determine if a person is a contractor or an employee. Sometimes contracts are drafted with the parties genuinely thinking they are contractors or employees when in fact they are not.

However, where one or more parties intentionally try to deceive, severe penalties apply to those who misrepresent the employment relationship and this is captured in the sham contracting provisions.

Generally someone who is hired for a specific service or purpose and paid for this specific service or purpose will be deemed to be a contractor rather than an employee. An agreement will exist between the principal and the contractor. Importantly, this agreement will not be subject to the same legislation and implied terms as those within an employment contract.

When there is an agreement for work to be completed in exchange for payment, an employment contract will usually exist between an employer and employee.

There are some common indicators that may contribute to determining whether a person is an employee or independent contractor and should be used as a quick check list:

An employee:

• Is paid for the time that they work
• Receives paid leave
• Is not responsible for providing materials/equipment required to do their job
• Must perform specific duties required of their position
• Agrees to provide their personal services
• Works hours set by an agreement or the appropriate award
• Is recognised as part of their employers business
• Takes no commercial risks, and cannot make a profit or loss from the work that they perform

A contractor, on the other hand:

• Is paid for their individual job and the result achieved
• Generally provides most materials/equipment required to do their job
• Can delegate work to other entities as it sees fit
• Has control in the way the work is done
• Provides services to the general public and to other businesses
• Can accept and refuse work
• Takes commercial risks, and is in a position to make a profit or loss

Why is the distinction important?

This distinction between employee and contractor is crucial as it determines just what rights and obligations will be owing to that employee or contractor. An employee’s contract must comply with certain standards including the maximum hours of work per week, leave entitlements, public holidays and notice of termination. In addition they will also be regulated through appropriate awards, any enterprise agreements that may relate to their industry and implied contractual obligations.

Consider the difference when drafting Employment Contracts

An employer must initially determine which relationship (employee or contractor) is most appropriate. Consideration can be given by the employer assessing the type of work to be done, establishing the level of control one will have over the work and then correctly labelling the relationship for what it is.

Penalties can also be imposed as set out below not only from Fair Work inspectors but also for unpaid superannuation.

Sham contracting arrangements

A sham contracting arrangement occurs where an employer attempts to disguise an employment relationship as an independent contracting arrangement. This is usually done for the purposes of avoiding responsibility for employee entitlements such as superannuation, annual leave and workers compensation for example.

Under the sham contracting provisions of the Fair Work Act 2009, an employer cannot:

• Misrepresent an employment relationship or a proposed employment arrangement as an independent contracting arrangement;
• Dismiss or threaten to dismiss an employee for the purpose of engaging them as an independent contractor;
• Make a knowingly false statement to persuade or influence an employee to become an independent contractor.

Under the Fair Work Act 2009 serious penalties apply to employers who contravene these provisions. Fair Work Inspectors can seek the imposition of penalties for contraventions of sham contracting arrangements and reform opt-in provisions. The courts may impose monetary penalties.

What should businesses do?

If you are an employer and don’t get it right there are practical and expensive consequences. Not only are there penalties under the Fair Work Act for misrepresenting the employment relationship as independent contracting, but employers could also be ordered to make back payment of wages set by awards or enterprise bargaining agreements.

So, if there is no simple answer about the difference between an employee and contractor, what should companies do?

First, don’t think that the terminology in a contract will determine the issue, because the courts won’t. A contract which clearly sets out respective rights and duties between the parties will, however, be an important part of the factual matrix which a court will use to make its decision.

Secondly, you might be running on the assumption that your service providers are contractors. If those individuals do not run their own business, then they are not contractors. Considering the costs of getting this wrong, or proving otherwise, it is worth reviewing these relationships and being sure that you are not inadvertently treating an employee as a contractor.

If you need more information or if you need assistance or advice on how to proceed please call us on 07 3281 6644 or email mail@powerlegal.com.au.

If you have been injured at work or have developed a work-related illness, it is important to act quickly and take appropriate steps to protect your legal rights.

No matter how minor you think your injury is, a basic understanding of the laws that protect workers, and the relevant timeframes for pursuing compensation is essential.

Although some injuries may seem insignificant when they happen, they can deteriorate over the course of days, weeks or months, affecting your capacity to work and provide for your family. Workers should not be deterred by offhand comments, pressure or threats, from pursuing their rights to access appropriate treatment and to be fairly compensated for a workplace injury.

Many people do not realise that the responsibility for seeking compensation rests with the injured worker and that failure to lodge a claim, no matter how seemingly incidental, can have significant repercussions on the ability to pursue their rightful entitlements.

Understanding workers compensation

Workers compensation laws exist for very good reason – they set out the rights and responsibilities of workers and employers, and support those who are injured, aggravate an existing injury or become ill while performing their usual work duties.

The Workers’ Compensation and Rehabilitation Act 2003 (Qld) establishes a no-fault compensation scheme which provides statutory minimum ‘safety net’ benefits to injured workers or the families of those who die from a workplace incident.

Employers must provide a safe workplace and work systems, and ensure that employees, whether full-time, part-time or casual are covered by workers compensation insurance. In some cases, ‘deemed’ workers such as contractors and self-employed workers, will also be covered.

Employers must report certain workplace injuries and cooperate with relevant bodies and providers to facilitate optimum recovery for an injured worker. Attempts to avoid these obligations, discourage or prevent an employee from following the correct processes for making a legitimate claim may breach these laws.

The role of WorkCover

WorkCover Queensland is established under the Act and provides workers compensation insurance for all Queensland employers, unless an employer is a self-insurer.

WorkCover processes workers compensation claims, makes payments to injured workers in accordance with their entitlements, oversees injury management and coordinates return to work plans.

Understanding time limits and making a claim

A worker, not the employer, is responsible for lodging a workers’ compensation claim. The following timeframes apply and may only be waived in specific and exceptional circumstances.

• Workers should report the incident and their injuries to the employer as soon as possible after the injury occurs and before making a claim.

A worker may complete an incident report or notification of injury, however he or she should be clear that this is not an application for workers compensation.

• An application for workers compensation must be lodged by an injured worker with WorkCover. The application is generally only valid if lodged no later than six months after the entitlement to compensation arises.

 The Act states that an entitlement to compensation arises on the day a worker is assessed by a doctor, a dentist (if the injury is an oral injury) or a nurse if the injury is minor. Injured workers should seek medical assistance as soon as possible after they are injured to obtain a work capacity certificate.

• If an application is lodged more than 20 business days after the entitlement to compensation arises, the insurer does not have to pay compensation from a date any earlier than 20 business days before lodgement of the claim.

This means that the insurer will not have to ‘back-date’ any compensation payments for more than 20 business days before the claim was lodged.

What does WorkCover pay?

 A workplace injury or illness may include physical or psychological injuries. Because the scheme is no-fault, provided the injury is work-related, compensation is generally payable even if the injury was not the employer’s fault.

Compensation may include any one or more of the following payments:

• weekly payments during incapacity;
• expenses for medical treatment by providers such as doctors, dentists, physiotherapists, occupational therapists and psychologists;
• assessments for industrial deafness and diagnostic processes;
• the provision of nursing, medical or surgical supplies and equipment;
• travel expenses reasonably incurred in attending treatment, medical examinations and medical assessment tribunals;
• lump sum benefits for certain injuries that result in permanent impairment;
• return to work support when an injured worker cannot resume his or her pre-injury role but may be suitable for other employment;
• death benefits for certain family members of a worker who dies from a work-related injury or illness, as well as funeral benefits.

Pursuing a common law claim for damages

A common law damages claim may be made by an injured worker if the employer (either directly or through another employee or agent) was negligent and deemed responsible for the injury. The claim must be commenced within three years of the date of injury.

Generally, a damages claim cannot be made until an injured worker has pursued his or her compensation rights through the no-fault statutory scheme. Accordingly, failure to lodge a claim with WorkCover within the prescribed timeframe can adversely affect a worker’s right to pursue a common law claim for damages.

A settlement or award for work injury damages usually includes a lump sum payment (accounting for future economic loss and pain and suffering), medical and hospital costs.

Other benefits including help for non-work-related accidents and illnesses

Workers who need to take extended leave due to an illness or injury may be able to claim income protection insurance, even if their condition is not work related. Income protection covers a portion (usually up to 75%) of a person’s usual income if they are unable to work due to certain illnesses or injuries. This type of insurance may be stand-alone, or form part of a superannuation policy, and many people are unaware that they even have such insurance.

Many superannuation policies provide lump sum benefits if a person is totally and permanently disabled. These payments are generally in addition to any relevant workers compensation payments.

Claiming under an income protection policy or superannuation fund can be complex and often involves jumping through ‘hoops’ to substantiate that the condition suffered falls within a category covered by the policy.

Navigating legal terms and conditions can be distressing, particularly when dealing with the physical and emotional effects of a serious illness or injury. A lawyer can help to analyse fine print, lodge a claim and supporting documents, and assist in resolving any disputes with superannuation funds and insurers.

Conclusion

Employers have a range of workplace health and safety responsibilities however the onus rests on injured workers to ensure their compensation rights are properly pursued and protected.

Obtaining legal advice early will help you to understand and manage the time limitations that apply and may make a significant difference to your entitlements.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Failure to pay employees their proper entitlements could leave employers exposed to criminal charges (including jail time) under new laws introduced in Queensland.

Criminalisation of ‘wage theft’

The Criminal Code and Other Legislation (Wage Theft) Amendment Act 2020 (Qld) introduces new provisions to the Criminal Code Act 1899 (Qld) expanding the definition of ‘stealing’ to include a failure to pay an employee (or other person on his or her behalf) an amount in relation to the performance of work by the employee.

The Explanatory Notes of the introducing Bill state that the provisions are ‘intended to capture a broad range of payments and entitlements, including:

• unpaid hours or underpayment of hours;
• unpaid penalty rates;
• unreasonable deductions;
• unpaid superannuation;
• withholding entitlements;
• underpayment through intentionally misclassifying a worker including wrong award, wrong classification or by ‘sham contracting’ and the misuse of Australian Business Numbers; and
• authorised deductions that have not been applied as agreed.’

The penalty for an offence is imprisonment for a maximum of 10 years and, in the case of an employer committing fraud against an employee, a maximum term of 14 years.

The laws target deliberate ‘wage theft’ and are not intended to apply to employers who accidently underpay workers and subsequently rectify their mistake.

Background to the reforms

The Queensland Parliamentary Education, Employment and Small Business Committee’s report, ‘A fair day’s pay for a fair day’s work?’ (November 2018) notes that over 437,000 Queensland workers do not receive their full entitlements – at 5% loss in income per worker, this would equate to $1.22 billion in wages annually.

The report suggests that wage theft not only affects workers and their families but impacts other businesses and the economy overall through the underpayment of superannuation, annual reductions in consumer spending and federal tax revenue.

The reforms target employers who blatantly engage in wage theft, gaining an unfair advantage at the cost of employees and other competitors in the market.

Proposed streamlined processes for recovery of wages

The reforms will also amend the Industrial Relations Act 2016 (Qld) by introducing a simplified process for workers to make wage recovery and fair work claims to the value of $20,000 through the Industrial Magistrates Court.

The system will promote the low-cost and efficient resolution of claims by enabling the registrar to refer parties to conciliation before a matter is heard by a Court. Parties not wishing to participate in conciliation will need to promptly notify the registrar. The purpose of conciliation will be to facilitate agreement between the parties, whether on all matters, or at least narrow the scope of unresolved issues. Once referred, conciliators will be required to commence the conciliation process as soon as practicable.

Employers should review wage systems

Rather than punish employers who have inadvertently made an error or oversight in calculating or paying employee wages, the laws target intentional conduct aimed at deliberately depriving workers of their full entitlements.

Workplace laws are constantly evolving, and employers should conduct regular checks to ensure compliance with relevant awards, industrial instruments, and employment contracts. All employees should be correctly classified and receive their full entitlements. Any underpayments should be flagged and rectified immediately, with processes implemented to foster ongoing checks and audits.

Employers should obtain professional advice if they are uncertain of their obligations.

Employees – recovering unpaid wages

Wage theft may cover a range of circumstances where full employee entitlements have not been met, for example, not being paid the minimum hourly rate of pay for the work carried out, the withholding of leave entitlements or a failure to make compulsory superannuation contributions.

Employees who believe they are not receiving the correct entitlements should raise these concerns with the appropriate person at their workplace. If unable to resolve the issue with the employer, employees can make a complaint to the Fair Work Ombudsman, the Australian Taxation Office, or pursue recovery of their entitlements through the Courts. We recommend obtaining legal advice before pursuing a matter in Court.

This article is intended to provide general information only. You should obtain professional advice before you undertake any course of action.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

The circumstances unique to each case must be considered in determining whether it is lawful to terminate an employee for conduct that contravenes company policy.

Generally, however, if a breach of policy results in unlawful conduct such as bullying, harassment or discrimination, then the decision to terminate the offending employee may be justified.

Having in place well drafted policies and codes of conduct and adopting a systematic and fair approach to investigating workplace complaints is essential for employers.

These were important factors in recent Fair Work Commission proceedings in the case of Peter Carroll v Karingal Inc (2016) FWC 3709 when a breach of workplace policy as grounds for termination was affirmed.

The facts of the case

Mr Carroll worked at Karingal as an audit and risk manager supervising several other employees, two of whom made complaints against him.

The allegations were that Mr Carroll was controlling, ‘micromanaged’ the workplace and belittled his employees (particularly with respect to the complainants’ inferior English skills). He was often aggressive towards his employees with a stifling approach to supervision.

Mr Carroll also introduced various spreadsheets requiring his employees to record detailed activities. These were considered excessive, unwarranted and encroached upon the employees’ already limited time to perform their duties.

Upon receiving the complaints, Karingal requested an independent enquiry and arranged for Mr Carroll to work from home whilst investigations took place. Throughout the course of investigations, Mr Carroll had the opportunity to read and comment in detail on the report presented by the investigator.

The report found that the cumulative effect of Mr Carroll’s behaviour towards the complainants constituted a breach of Karingal’s code of conduct, work, health and safety policies and bullying and harassment policy.

Mr Carroll was terminated and consequently made application to the Fair Work Commission for unfair dismissal.

Unfair dismissal claim

The employer / employee relationship is largely governed by the Fair Work Act 2009 (Cth) which sets out minimum standards of employment and, amongst other things, provides protection to employees against discrimination and unfair dismissal.

Section 385 of the Act provides that a dismissal is unfair if:

• the dismissal was harsh, unjust or unreasonable; and
• the dismissal was not consistent with the Small Business Fair Dismissal Code (if relevant); and
• the dismissal was not a case of genuine redundancy.

Significant to this case, was whether the dismissal was ‘harsh, unjust or unreasonable’. In such matters the Court will need to consider (amongst other things):

• whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
• whether the person was notified of that reason; and
• whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
• any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
• if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal…

As there was no argument about Mr Carroll’s performance, Karingal relied on Mr Carroll’s conduct as justifying the dismissal, claiming that he engaged in ‘serious and sustained bullying of staff under his management and supervision, which adversely affected their health, safety and welfare.’

This conduct was in breach of Karingal’s ‘Code of Conduct, its Work, Health and Safety Policy and its Bullying and Harassment Policy’.

The Code of Conduct was said to establish the required standards of its employees with an onus on ‘managers to ensure that they maintain a positive environment free of bullying, harassment and other forms of discrimination.’

Mr Carroll acknowledged that he was aware of these documents which provided that breaches would be ‘addressed either informally, through counselling methods, or formally’.

The Commission’s determination

The complainants provided evidence, and the Commission accepted, that Mr Carroll’s behaviour made them feel threatened and intimidated, causing stress and anxiety and having an effect on their safety and welfare.

The Commission found that the complainants and Mr Carroll were all credible witnesses and that Mr Carroll was ‘well-intentioned’ and believed ‘he was doing his best by his employer and his staff’. Notwithstanding, the Court found that Mr Carroll’s conduct did in fact constitute bullying in breach of Karingal’s Code of Conduct and, as a consequence, his termination was lawful.

Key take outs from the case

It is important for employers to have well-written policies which may be used as models for appropriate behaviour in the workplace. Codes of conduct and workplace safety policies (which include protocols for bullying and harassment) are important documents and may be critical in evidencing the required conduct of employees.

It is difficult to sustain the lawful termination of an employee for behaviour of which he or she was unaware. Accordingly, all policies and codes of conduct must be made available to employees. Ideally, this should occur on or before induction and whenever updates are made.

Obtaining the employee’s acknowledgement of having received the document (for example by requesting the employee sign acceptance of the document) is a wise way to confirm the document was brought to the attention of the employee.

Employers must ensure that policies are reasonable and implemented in a manner that protects employees from treatment that might be considered harsh, unjust or discriminative.

Karingal’s documented policy and codes of conduct supported its defence against the unfair dismissal of Mr Carroll. These documents set out the required standards of behaviour from employees, including managers, and the implications (informal or formal) they would face for breach.

Given Mr Carroll’s acknowledgement that he was aware of the policy, it might also be assumed that Karingal had in place an effective system to ensure employees received such documents.

Engaging an independent investigator, providing Mr Carroll opportunity to comment on the reports and following a fair process during the enquiry also weighed in Karingal’s favour.

Conclusion

A serious breach of company policy, particularly when the conduct results in behaviour that is unlawful, can be grounds for termination.

Employers should ensure that they have well-written policies and codes of conduct so that employees understand what is expected of them in the workplace. These should be brought to the employee’s attention and reviewed regularly.

Employers should also adopt fair and consistent procedures for dealing with workplace complaints and incidents to ensure employees have the benefit of an impartial hearing if allegations are made against them.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

There are many stories in the media about inappropriate behaviour at work functions – the more public the ‘offender’, the more likely the incident will attract ongoing attention.

Work Christmas parties provide a great opportunity to mix with fellow colleagues and bosses, reflect on the year’s activities and get to know each other on a more personal level.

With each social function however, employers and employees have certain rights and responsibilities. Understanding these and working together should ensure everybody’s welfare is protected and avoid some of the pitfalls that can arise from poorly managed events. Issues can range from the embarrassment of having ‘one too many’ to serious claims of sexual harassment, bullying and discrimination.

So, while preparing to let your hair down for the end of year celebrations, it’s a good idea to brush up on some essential work function responsibilities so that your next event is not too eventful.

Laying down the law

Despite a work function being held off work premises and out of normal working hours, workplace laws still apply and an employer’s duty of care for its employees remains as if they were at work.

Accordingly, without resorting to becoming the ‘fun police’, it is appropriate for employers to remind their employees about acceptable behaviour, codes of conduct, workplace and social media policies, responsible alcohol consumption and the prohibition of illicit drugs. This reminder should be in writing, issued before the event, and may accompany the invitation.

Employer’s liability

Employers may be liable to compensate an employee if, through a negligent act or omission, they fail in their duty of care to prevent injury and the person suffers harm. This liability extends to work functions and events.

Employers are also vicariously responsible for the behaviour of their employees both in the workplace and at work functions. Vicarious liability is a type of secondary liability whereby a superior (employer) is responsible for the actions of a subordinate (employee). This arises from the common law principle that the employer has a right, ability or duty to control the employee.

An employer can therefore be liable for harm suffered by a worker (such as discrimination, harassment including sexual harassment, and bullying) due to the inappropriate conduct of an employee. The effects of too much alcohol or simply forgetting that the work function is deemed a workplace can often fuel behaviour leading to these issues.

Employee behaviour and misconduct

Employees who behave inappropriately at a work function not only reflect poorly on themselves and their employer but may risk losing their job. An employee can be formally disciplined and, if the behaviour is severe enough, may be dismissed.

Although there are laws to protect employees from unfair and harsh dismissal, several cases have established that misconduct, in some circumstances, is sufficient grounds for termination. Misconduct includes drunkenness, dishonesty, breach of confidence and insulting / objectionable language – all actions that may be exacerbated by a few too many drinks or in a social context.

Social media

Employees should ensure they comply with their work social media policy – just because it’s a party does not mean that the posting of inappropriate images and / or comments will not breach policy. Whether or not a social media policy is in place, the best advice is, if in doubt, don’t.

Top tips for a smooth event

The following checklists for employers and employees should help keep everybody safe and ensure that your next event is enjoyable and runs smoothly for all.

Employers

• Consider your employees’ religious and cultural beliefs, family and caring responsibilities, and travel requirements when planning, to foster an inclusive non-discriminatory event.
• Remind employees before the function that workplace policies and codes of conduct will apply, a breach of which may result in disciplinary action.
• Note that a mere reminder about workplace policies is insufficient if employees do not have access to, and have not had training in, such policies.
• Set specific starting and finishing times, reminding employees that a decision to ‘party-on’ after the event will not be condoned by the employer.
• Ensure sufficient food, non-alcoholic beverages and water are available.
• Liaise with function centre management to ensure that responsible service of alcohol rules will be upheld and that a key employer will be notified of any employee or guest in danger of excessive alcohol consumption.
• Provide employees with access to safe transportation after the party and ensure that they start their journey home from the event safely.

Employees

• Be respectful of others, their opinions and beliefs and conduct yourself appropriately. Try to avoid topics that are likely to become heated and, if discussions get too controversial, walk away and get on with enjoying the party.
• Make sure you are familiar with company policies and codes of conduct.
• Drink sensibly and eat well to slow alcohol absorption.
• Look out for your colleagues and guests and ask for assistance if you believe somebody’s welfare might be compromised.
• Don’t get drawn into office gossip or behaviour that may be perceived as offensive, lude or explicit.
• Be mindful about social media – apart from checking on the children and calling a taxi to get home safely, why not just leave the mobile aside and get on with enjoying the night.

Conclusion

Well-planned end of year work celebrations can be very rewarding and build morale within the workplace. By following some simple steps employers and employees can ensure the party is inclusive and fun for everybody, while keeping professional and personal reputations intact and avoiding legal complications.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

An employer’s potential liability for workplace discrimination arises before the first interview and exists whether or not a decision is made to hire a person.

A job interview is integral to the recruitment process and provides an opportunity for the employer to ask questions, check credentials and determine a prospective employee’s suitability for a position. It also provides reciprocal opportunities for candidates to find out more about the role and the organisation and to assess their interest in the position.

Naturally, both parties want to find the ‘right fit’ however the employer is largely in control of the interview process and may go about finding the right person in the wrong manner.

By asking a candidate certain ‘illegal’ questions during the interview process, employers risk breaching Commonwealth and / or State laws aimed to protect individuals against discrimination in the workplace.

So, what are illegal questions?

When interviewing a candidate for a position, the primary focus of the questions asked should be to assess the applicant’s inherent ability to perform the key functions of the role.

Employers should avoid asking questions about certain unlawful factors for which a candidate’s answer could be construed as determinative to the success, or otherwise, of his or her application. These include questions about age, gender, sexual preference, ethnicity, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion or social origin. Essentially, these matters are considered irrelevant in determining a person’s capacity to perform the role.

Even the most ‘innocent’ questions (such as those that might be asked during the course of social conversation) could be considered unlawful during a formal interview. The following are some examples:

• How do you manage work with three children?
• How old are you?
• Does your disability prevent you from carrying out your job?

These questions have something in common – they are questions that might be asked of a particular category of applicants (those with children, over 50 years of age or with a disability) that would not necessarily be asked of other applicants.

Other questions that may result in a discrimination complaint include:

• What is your religion?
• Where were you born?
• Are you working at the moment?
• Have you had a workers’ compensation claim?

These questions are unnecessary when determining an applicant’s ability to carry out the duties required of the role and should be avoided. Deciding that an applicant is unsuited for the position based on an answer to one or more of these questions may result in discrimination action.

Asking the right questions

Potential claims for discrimination can be minimised by re-thinking your approach to how questions are asked and having a detailed job description to refer to during the interview process. This helps keep the interview on track and ensures only the essential requirements of the position are addressed.

Organisations are encouraged to implement a set of standard interview questions that focus on the key skills and requirements of the position. This may include asking applicants to demonstrate how their skills and personal qualities make them an ideal choice for the role. An effective way to achieve this is to ask for examples of how the applicant has achieved certain outcomes or reacted to particular situations in previous roles. For example, you might ask, ‘please explain how you managed an irate customer during your time as service representative with XYZ’.

Following are some examples of discriminatory questions, together with an alternative approach that can be used to obtain the necessary information from a candidate.

• Injuries / physical disabilities – it may be necessary to discuss an applicant’s injuries or physical condition to determine objectively whether he or she would be able to safely perform, without personal risk or risk to others, the duties required.

Rather than asking directly about his or her condition, the interviewer should go through each element of the job and, where relevant, discuss what adjustments to the workplace might be required to assist the applicant perform these duties. Appropriate questions may include:

‘Are there any reasons why you may not safely be able to lift 5 kg?’

‘Are there any specific adjustments we would need to make so you could carry out the duties required?’

This demonstrates that the employer has genuinely considered the applicant who may be an ideal fit, with a few minor modifications to the workplace.

• Age – asking an applicant his or her age is unlawful particularly if the employer is assuming that the person, due to age, lacks the energy, drive or technical ability to carry out the role. Basing questions on the applicant’s skills, experience and inherent ability to perform these tasks, rather than querying their age will help minimise a discrimination complaint. An appropriate question would be:

‘Tell me about your computer experience…what types of programs have you used?’

• Family commitments – it is unlawful to discriminate against a candidate based on his or her family circumstances. Rather than asking applicants if they have children or family commitments, simply ask whether they are able to commit to the hours / days required of the position. For example:

‘The job will occasionally require you to work evenings and weekends – would this conflict with other commitments?’

• Religion / race – it is unlawful to rule out an applicant whom you assume will be unable to work weekends due to religion, race or culture. If the job requires weekend work, simply point out the required days and ask the applicant whether he or she would have any issues working these days.
• Currently working – asking an applicant if he or she is currently working could be perceived as discrimination on the grounds of employment, unemployment or receiving a pension. Instead, ask when the applicant would be available to start work.

Conclusion

Avoiding workplace discrimination starts before the recruitment process and continues throughout the employment relationship (including opportunities for career progression), during workplace investigations and termination processes.

Framing questions appropriately to minimise potential action for unfair discrimination and to give candidates an opportunity to demonstrate whether they can perform the job requires sound procedures and ensuring those involved in the recruitment process are aware of their obligations.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.