Questions & Answers

Pre-employment issues

Most complaints received in the Commission involve work issues. Under the Act, discrimination in the area of work includes situations where people are treated unfairly in pre-work circumstances such as applying for jobs. Here are a few questions we're often asked about pre-employment issues.

Question

We're in the process of developing a new employment application form for our company. Can you give us some feedback please, and let us know if any of the questions breach the Act?

Answer

I've had a look at the form, and the questions asking for personal details, employment history and referees are fine. The questions in the `health' section, however could be problematic. There's a section of the Act which makes it unlawful to ask another person to supply information on which unlawful discrimination may be based. The example used in the Act says:

an employer would contravene the Act by asking applicants for all jobs whether they have any impairments, but may ask applicants for a job involving heavy lifting whether they have any physical condition that indicates they should not do that work.

A further section of the Act says that a defence can be argued to this, if the employer (in your case) proves, on the balance of probabilities, that the information is reasonably required for a purpose that didn't involve discrimination.

So, asking people to tick a list of possible medical conditions they might have, which are not necessary or not related to the essential requirements of the job may be in breach of the Act.

Question

I want to advertise for a junior, but someone told me I could have a complaint made against me if I did. Is this right?

Answer

No, you can advertise for a junior. While discriminating against someone on the basis of their age is discriminatory, there are also exemptions. Exemptions simply mean that what is usually unlawful discrimination, is not unlawful in certain circumstances.

The Act contains an exemption (or a certain circumstance) regarding youth wages. It says :

a person may remunerate a worker who is under 21 years of age according to the worker's age.

Question

I work for an employment agency, and one of our clients has asked us to find an attractive young woman to work with customers in their small business. Can we do this?

Answer

No. Seeking a person to fit this client's needs could result in a complaint of discrimination on the basis of age and/or sex.

When we discuss this issue with employment agencies, they often mention that they are concerned about losing the client if they don't supply the type of person the client wants. We suggest that they might turn this situation to their advantage by promoting their expertise in complying with the Act, and perhaps carving out a niche market in dealing with placements on the basis of compliance with discrimination legislation.

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