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Guidelines for writing and publishing recruitment advertisements

Guidelines for writing
and publishing recruitment advertisements

A guide for employers, recruitment
and employment agencies and those who publish or display job ads

Are
you planning to

  • advertise for
    someone to work?
  • assist an employer
    with recruitment?
  • publish or display
    a recruitment advertisement?

If so, you should
be aware of your rights and responsibilities under the federal Sex
Discrimination Act 1984
.

The federal Sex Discrimination
Act applies throughout Australia and contains some provisions that are
different to state and territory sex discrimination laws. People and organisations
exempt under state and territory laws (such as small businesses) are not
necessarily exempt under the federal Sex Discrimination Act. It is not
enough to simply comply with state or territory anti-discrimination laws.
You must also meet your obligations under the federal Sex Discrimination
Act.

What
is an advertisement?

An advertisement
is broadly defined under the federal Sex Discrimination Act to include
any form of advertisement or notice

  • available to the
    public
  • published in a
    newspaper or other publication (e.g. Internet)
  • broadcast on television
    or radio
  • displayed on a
    notice, sign, label, showcard or a good distributed in samples, circulars,
    catalogues, price lists or other material
  • exhibited in pictures,
    models or films or in any other way.

This definition covers
any usual recruitment notice advertised through the normal channels.

Good
advertising

Section 86 of the
federal Sex Discrimination Act makes it unlawful to publish or display
an advertisement that indicates, or could reasonably be understood to
indicate, an intention to discriminate on the ground/s of

  • sex
  • marital status
  • pregnancy and/or
  • potential pregnancy
  • in the arrangements
    made for determining who will be offered a job, and
  • in the terms on
    which a job is offered, including remuneration, access to training,
    promotion or transfer and dismissal or any other detriment.

This requirement
extends to persons or corporations who don't actually publish or display
the advertisement or notice, but cause or permit it to be published.

The federal Sex Discrimination
Act prohibits direct and indirect discrimination. Direct discrimination
occurs when a person is treated less favourably on the basis of their
sex, marital status, pregnancy or potential pregnancy. Indirect discrimination
concerns policies and practices which appear to be neutral but have the
effect of disadvantaging persons of one sex, or of a particular marital
status, or pregnant/potentially pregnant women. Sexual harassment is also
unlawful.

Financial
penalties

The federal Sex Discrimination
Act imposes a $1000 fine for individuals, and a $5000 fine for corporations
in breach of Section 86.

Are
you recruiting for 'employment'?

The federal Sex Discrimination
Act defines 'employment' broadly

  • part-time and
    temporary employment (including trainees and casual workers)
  • work under a contract
    for services (e.g. an independent contractor)
  • work as an agent
    paid by commission
  • work as a Commonwealth
    employee.

Who
must comply with these provisions?

With the exception
of state government departments, agents and instrumentalities, these provisions
apply to all employers in Australia, and to all recruitment processes
undertaken in Australia by an Australian or an overseas company.

The federal Sex Discrimination
Act specifically covers employment agencies and recruitment companies,
and their provision of services.

In the case of a
contravening advertisement published in a newspaper, several persons or
corporations may be deemed in breach of the federal Sex Discrimination
Act, for example, all newspapers that publish the advertisement, the employer
that authorises the terms of the advertisement and the employment agency
or recruitment company that drafts and places the advertisement.

An advertisement
published in Australia, recruiting for an overseas position is in most
circumstances required to comply.

Tips
for your advertisement

  1. Avoid gender specific
    job titles such as "girl friday" or "salesman" opting for gender neutral
    language such as "secretary" or "salesperson".
  2. Advertisements
    should not favour or make assumptions about a particular marital status;
    for example, asking for a "single, fun-loving person who is free to
    work nights" directly discriminates on the basis of marital status.
  3. Avoid upper age
    limits for example, "trainee clerk required - maximum 28 years" as this
    may indirectly discriminate against female applicants who temporarily
    left the workforce due to pregnancy and subsequent child rearing. This
    example may also constitute age discrimination.

Note: A recruitment
advertisement made in compliance with the federal Sex Discrimination Act
ensures a wide merit-based pool of job applicants, it will help you attract
the best, most qualified people.

Exemptions

There are a number
of exemptions in the federal Sex Discrimination Act in Sections 13, 14
and 30 to 43. These exemptions relate to employment by religious institutions
or voluntary bodies, or relate to requirements where gender is a genuine
occupational qualification. An exemption also exists for the selection
of a person to work in domestic duties at the residence of an employer.

The federal Sex Discrimination
Commissioner is firmly of the view that it is preferable for the objects
of the Act to be respected whenever possible, even where exemptions may
apply. Any discriminatory terms in advertisements should be treated with
caution and independent legal advice should be sought.

Temporary exemptions
may be granted for up to five years and are assessed by the Commissioner
on a case by case basis. Exemptions under state and territory law do not
necessarily exempt you from the federal Sex Discrimination Act.

Special
measures

The Commissioner
may decide if certain actions are "special measures" under the federal
Sex Discrimination Act. Special measures allow procedures in relation
to affirmative action for women to be undertaken in the course of employment
and employment advertising if part of a legitimite affirmative action
program for women.

Even if an exemption
or special measure may apply to a particular action, a person aggrieved
by that action can still make a complaint. After enquiries a decision
will be made about whether the action falls within the exemption provisions
or whether a special measure applies.

For further information
on temporary exemptions and special measures, refer to the Guidelines
for Special Measures under the Sex Discrimination Act 1984
(Human
Rights and Equal Opportunity Commission 1996).