Balancing the Act: ADCQ newsletter -
Workers Comp changes
Workers Comp changes not a licence to discriminate
The Queensland Parliament has passed amendments to the Workers Compensation and Rehabilitation Act 2003 and the changes are now in force. The changes have an impact on people applying for work and prospective employers in relation to pre-existing injuries and medical conditions, as well as claims histories.
Unless there is a valid exemption under the Anti-Discrimination Act 1991 , it is unlawful to make recruitment decisions based on a person's impairment, perceived impairment or their previous or current injuries and medical conditions.
Relevant exemptions are :
- a worker not being able to perform the genuine occupational requirements for a position;
- an employer fixing reasonable terms for a person with restricted capacity;
- an employer being exposed to unjustifi able hardship in making adjustments or providing special services or facilities to enable a worker to perform the job;
- an employer making reasonable decisions to protect the health and safety of people at a place of work.
Generally it is unlawful for an employer or recruitment agent to ask for information on which unlawful discrimination might be based.
However, under the Workers' Compensation and Rehabilitation Act 2003 a prospective employer can:
- give a written request to a job applicant to disclose any pre-existing injury or medical condition that might be aggravated by performing the duties of the job;
- ask a job applicant to consent to the prospective employer obtaining a copy of the applicant's claims history from the Workers' Compensation Regulator.
A pre-existing injury or medical condition is one that exists during the period of recruitment that the applicant suspects, or should suspect, would be aggravated by performing the duties of the job.
Where a valid request has been made, an applicant must disclose any relevant pre-existing injury or medical condition. In some circumstances, not disclosing a pre-existing injury or medical condition that would be aggravated by the duties of the job might constitute a false or misleading disclosure. This can result in the applicant not being entitled to compensation or damages for any event that aggravates the pre-existing injury or medical condition.
Tips for employers and recruitment agents
- Ensure job applicants are provided with comprehensive job descriptions which clearly identify duties and the environments in which the duties are to be performed. This will assist applicants to assess the likelihood of aggravating a pre-existing injury or medical condition.
- Only obtain an applicant's claims history during a recruitment process and with the consent of the person.
- Ensure any information obtained about applicants is used for the purpose of the recruitment process only.
- Where medical conditions or injuries are disclosed, consider whether any adjustments or changes can be made to enable the worker to do the job.
Tips for prospective employees
- Carefully consider the contents of job descriptions and objectively assess the likelihood of aggravating any pre-existing injuries or medical conditions.
- Disclose any medical information that is relevant to the position being applied for and keep a copy of both the request and the disclosure for your records.
A person who has been unfairly excluded from employment on the basis of an injury or medical condition has a right to make a complaint of discrimination under the Anti-Discrimination Act 1991.
More details about claims histories, injuries and medical conditions existing during the recruitment process are available in fact sheet format on this ADCQ website.