Business Toolbox

Recruitment is one of the most critical functions in any business, with hiring the right candidate from the start saving significant costs and time.

However, it is equally important that the recruitment process complies with anti-discrimination laws to avoid legal risks and ensure a fair, inclusive hiring practice. CCIWA HR and Workplace Relations Consultant Cristina Iacob explains.

Crafting inclusive job descriptions 

A well-written job description is the foundation of an effective recruitment process. It should clearly define the skills, competencies, expectations and qualifications required for a role while avoiding language that could be considered discriminatory. 

• Use neutral and inclusive language to attract a diverse pool of candidates. 
• Avoid references to personal characteristics such as age, race, or gender unless they are essential to the role. 
• Regularly review and update job descriptions to ensure they reflect the current requirements of the position and industry regulations. 

A detailed job description also ensures compliance with industrial instruments, helping businesses determine the correct classification and pay rates to avoid underpayment claims. 

Writing job advertisements 

Job advertisements serve as a candidate’s first impression of an organisation, and they should be designed to attract a broad talent pool while adhering to legal requirements. 

• Use clear, simple and inclusive language to appeal to a wide range of applicants. 
• Limit essential criteria to genuine role requirements to avoid inadvertently discouraging qualified candidates. 
• Comply with pay transparency laws introduced under the Secure Jobs, Better Pay Act 2022, ensuring that advertised pay rates align with minimum entitlements under the Fair Work Act 2009. 
• Enhance engagement with video content, as job postings with videos receive 34% more applications. 

Leveraging recruitment sources responsibly 

Employers often rely on social media and recruitment agencies to find the best talent. However, these methods come with their own legal and ethical considerations. 

While social media is a cost-effective way to reach a larger, more diverse audience, including passive job seekers, it poses risks of bias and discrimination if hiring decisions are influenced by a candidate’s demographic details. To mitigate this risk: 

• Ensure selection criteria are based on skills and experience, not personal attributes. 
• Avoid screening candidates based on irrelevant personal information visible on their profiles. 

Engaging a recruitment agency can streamline the hiring process, but businesses remain legally accountable for discriminatory hiring practices, so employers should ensure agencies understand and comply with anti-discrimination laws. 

Ensuring a positive and compliant candidate experience 

A fair and transparent recruitment process not only attracts top talent but also reduces the risk of discrimination claims. 

Best practices for interviews

• Communicate the interview process clearly, outlining expectations and preparation guidelines. 
• Conduct interviews in accessible locations and accommodate special needs to ensure inclusivity. 
• Ask consistent, job-related questions to all candidates to avoid bias. 
• Avoid inquiries into personal matters, such as health conditions unrelated to job performance. Under the Workers’ Compensation and Injury Management Act, asking about past compensation claims can result in fines of up to $10,000. 

Implementing assessments and tests

Pre-employment testing can provide an objective measure of a candidate’s suitability for a role, but it must be administered fairly. 

• Medical tests should only assess the candidate against job-specific requirements and remain confidential. 
• Psychological and aptitude tests should be relevant to the role, only assessing job-related skills rather than personal characteristics. 
• Avoid discrimination in medical testing by ensuring reasonable accommodations for candidates with disabilities. 

Understanding general protection laws 

Anti-discrimination protections under the Fair Work Act extend to prospective employees. Employers cannot refuse to hire or offer less favourable terms based on protected attributes, including: 

• Race, gender, sexual orientation, age, disability, marital status, pregnancy, or religion. 
• Family or carer’s responsibilities or experience with family and domestic violence. 

However, some exceptions apply where discrimination is legally permissible, such as when specific requirements are inherent to the role or religious institutions act in good faith to protect their beliefs. 

Key takeaways for compliance 

To avoid discrimination claims, businesses should: 

1. Review recruitment practices to ensure decisions are based on qualifications and experience.
2. Document hiring decisions to justify selections without discriminatory bias.
3. Maintain consistency in interview questions to ensure fairness.
4. Train hiring managers on anti-discrimination laws and unconscious bias.
5. Be mindful of language and statements to prevent unintentional bias. 
6. Handle complaints professionally, addressing concerns promptly with legal guidance if necessary. 

By embedding these best practices, organisations can attract top talent while ensuring compliance with anti-discrimination laws, fostering a diverse and inclusive workplace. 

For general employee advice and guidance, contact CCIWA’s Employee Relations Helpline on (08) 9365 7660 or email [email protected]. 

CCIWA offers various workplace training packages on employee and industrial relations, including offerings that can tailored to your requirements and workplace. Find out more via [email protected] or on (08) 9365 7500.