There is little doubt that Australia should be proud of its intolerance of racism and discrimination and our strong belief in gender equality, but at times, I wonder whether our discrimination laws go a little too far.
Recently, the tragic situation in France over the publication of a cartoon of the prophet Muhammad, has lead to intense debate about whether a right to free speech should include a right to publish a satirical view about a religious belief. Some commentators have suggested that outlawing comment on political, sexual, racial or religious beliefs is largely inconsistent with a right to free speech.
But for me, the most needed debate surrounds the definition of “discrimination”, particularly in so far as it applies in the business world.
Take, for example, the recent decision in Willmott v. Woolworths in which the Queensland Civil and Administrative Tribunal found that Woolworths had breached discrimination legislation by requiring him to insert his date of birth and gender in an online employment application. What the applicant in that case successfully argued that it was unnecessary for Woolworths to ask questions about age and gender in an online application and he claimed that he was “sickened beyond belief” at Woolworths’ disregard for Australian Discrimination Laws. In the end result, he was awarded $5,000.00 in compensation. The award would have been much higher if QCAT had evidence before it that Mr Willmott had suffered actual economic loss as a result of not continuing with the employment application.
But don’t get me wrong, I am not suggesting for one moment that discrimination on the basis of age should not be illegal. My point rather, is that at a practical level, the age or approximate age of any prospective employees is going to become known as soon as they attend a face to face interview. If they are offered a job, far greater personal information than their full name and date of birth will be required, because of the need to comply with taxation legislation. Why should a budget conscious employer who is looking to hire a junior staff member for a junior role (so as to keep their wages costs within defined budgets) be unable to ask for a date of birth so as to ascertain whether the likely wage cost will fit within budget?
The tribunal accepted that Mr Willmott was embarrassed and humiliated in being compelled to provide his gender and date of birth. Really? Are we Australians no longer the easy going knockabout type that we’ve considered to be our National stereotype for years?
I could understand Mr Willmott’s concern if Woolworths had told him he was too old to be employed by them as that would clearly be offensive and a breach of the discrimination legislation, but for me, any legislation of this type needs to be applied with a good dose of common sense. But that’s just my view; and we believe in free speech, right?
Practice Group Leader
Schultz Toomey O’Brien Lawyers, Part of the Slater & Gordon Group
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