Job Ads: Staying on the Right Side of the Law


25 Feb, 2018

A Brisbane lawyer recently advertised for a male solicitor to join their firm. This has brought the issue of discriminatory and misleading job ads back into the limelight and goes to show that even lawyers can get human resources wrong!

What do you need to know to ensure your next job doesn’t hit the headlines for all the wrong reasons?

Discriminatory Job Ads

Federal and State anti-discrimination legislation makes it illegal to directly or indirectly discriminate against a person on the grounds of a particular attribute or characteristic.

Direct discrimination means you deliberately exclude some people from applying (e.g., “Girl Friday“; “Strong, young bloke“)

Indirect discrimination means you didn’t set out to exclude some people, but the results are that you have inadvertently excluded people. For example, if you say, “Only apply if you are over 5ft 10in“, then you are excluding women and people of Asian descent from applying for your vacancy.

Under Federal and State anti-discrimination laws, discrimination against candidates on the following grounds is against the law:

  • Marital status.
  • Pregnancy or potential pregnancy.
  • Relationship or parental status.
  • Religious belief or activity.
  • Political belief or activity.
  • Trade union activity.
  • Lawful sexual activity.
  • Breastfeeding needs.
  • Family responsibilities.
  • Gender identity.
  • Association with someone who has these attributes.

There are a few exceptions to legal requirements for job ads. However, these vary from state to state and can include:

  • Domestic work in a private home.
  • Jobs where gender or physical features are an essential part of the job such as modelling or acting.
  • Where the gender is an essential requirement of the role such as someone fitting clothes, searching people, working with women of Muslim faith, etc.
  • Jobs specifically established to help groups who have been disadvantaged in the past such as an indigenous traineeship.


Common Recruitment Ad Problems

While it is fairly obvious that advertising for a particular gender is discriminatory, there are also some other common ad words that are an issue.

The terms junior, mature or senior within job ads need to be used very carefully (if at all).

You can only use the term junior if you will be paying the successful candidate junior rates as per the award or industrial agreement, AND they are under 21.

The terms ‘mature’ or ‘senior’ may also be discriminatory as they imply age and can discourage applicants from applying.

It is OK to state that this position is a junior position in the hierarchy or a senior role in the management group, as this relates to the position in the hierarchy and does not relate to person’s age.

You can also say you are looking for someone with a mature attitude or approach as people of any age can have this trait.

Advertising for someone with a certain number of years’ experience (e.g. two years’ experience), is another minefield as you must be able to prove that someone within one year and 11 months’ experience can’t do the job and that the extra month makes all the difference!

Instead, it is more effective to ask for types of experience such as “wide-ranging experience potting all types of plants“, or “considerable experience in direct sales“.


Consequences of Discriminatory Job Ads

If you run a discriminatory job ad, the following people can be held liable:

  • The person who advertises.
  • Anyone who helps you advertise such as a recruitment agency.
  • The person who publishes the ad.


Misleading Job Ads

Once you jump the anti-discrimination job ad hurdle, you also have the Competition and Consumer Act hurdle to contend with.

Under this Act, you can’t advertise in a way that misleads applicants or face up to $1.1million in penalties.

Common misleading job ads include:

  • Not enough information. If you leave out key information about a job, you create frustration on behalf of applicants. You need to include accurate information about your company, the nature of the job, the location of the role, employment type, and classification.
  • No real job. If you are just “fishing” for applicants to see who is out there, then you could be guilty of misleading conduct. Unless there is a job, you can’t advertise the position.
  • SMS or 1900 ads. Getting people to SMS or call 1900 numbers is a scam. You cannot ask a candidate to call an expensive phone number to find out details about potential work.
  • Pay. If you mislead people regarding how much they will be paid or the type of employment type (e.g. full-time vs commission vs a business opportunity), then you could be guilty of misleading ads. Ads that attract the best quality candidates include the pay scale, so candidates can self-select whether to apply.

The bottom line is you need to ensure that your job ads are accurate, non-discriminatory and legal. Make sure that your job requirements are realistic reflections of what is needed to do the job and encourage a diverse applicant pool to allow the best possible candidate to be successful in your role.

Here are some tips on where to advertise a job vacancy.

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