May 29, 2014

New laws that deny employment rights to workers who give incomplete information about their medical history in job applications, will lead to “employment discrimination” against physically impaired workers, according to at least one Queensland judge.
The October 2013 changes to the Workers Compensation and Rehabilitation Act give employers the opportunity to consider the workplace suitability of applicants for the duties they will be required to perform. Job applicants must disclose all pre-existing events and medical conditions that could impinge on their performance of a role.

And if an applicant fails to do after having been asked, eg in a questionnaire by the prospective employer to do so, then – if  the questionnaire carried a warning of the legal consequences of non-disclosure – the employment rights of the successful applicant are substantially diminished.

The same law entitles prospective employers to access government records of an applicant’s employment history. In March, Judge John Baulch of Townsville’s District Court noted that as a result of the mandatory disclosure, such persons now face “significant difficulty in obtaining employment”.

Sensible employers would, he ruled, be “unlikely to employ” a medically impaired person, over an able-bodied applicant with the same skills. Those comments were echoed in May in the Supreme Court when Justice Duncan McMeekin observed in the case of a central Queensland miner, that courts are often told by employers and expert witnesses “about how employers favour those employees who are able and adaptable”.

The punitive measures associated with non-disclosure are seen to be an obstacle to well-meaning and determined job applicants, intent on pulling themselves out of welfare dependency.

Turner v Turner & Anor [2014] QDC 106 Baulch SC DCJ 18/03/2014

Morris v BHP Coal Pty Ltd [2014] QSC 096 McMeekin J 16/05/2014

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