Written by Peter CarterOctober 21, 2013
Routine job interviews have been lined with booby traps to kill off the chances of workers desperate to re-gain a job. And many applicants should now arrange their own medical clearance prior to even applying.
That’s the effect of new Queensland laws which target non-disclosure of prior mishaps and medical conditions and 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 injuries and medical conditions if the employer makes a written request and if the application form carries a written statement about the duties the worker will need to perform as well as a warning of the legal consequences of non-disclosure.
Any worker who gives misleading information about their injury history as it is relevant to the particular job from October 15, will be denied all injury compensation and damages from any “event” in which an aggravation of the non-disclosed prior injury occurs.
These are obviously drastic consequences that if properly explained will likely compel applicants to make the desired disclosure.
But one can foresee that the new measures in the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2013 will make it more difficult for people with existing medical conditions to gain entry to the workforce or to return to work after an injury, because of the natural preference of employers to recruit “able-bodied” personnel.
Job search desperation has sometimes persuaded judges to excuse workers concealing prior injuries in job applications but it will no longer afford any such justification.
To persuade an interviewer they have recovered from any prior injury, it may also be beneficial for applicants to come to job interviews armed with their own prearranged medical report, clearing them for the job applied for. Although an undesirable cost, it may prove to be money well spent.
Applicants can refuse to disclose their pre-existing medical etc condition if they are put on the job before they are presented with the paperwork that contains the questions. The same law grants employers the right to access a job applicant’s WorkCover claims history upon payment of an application fee provided the job applicant has signed his or her consent: s 571D.
The prospective employer must keep the information confidential and use it only in connection with deciding the job application. Employers must exercise these rights with care.
Under another Queensland law – the Anti-Discrimination Act 1991 – an employer may only, under s 36, discriminate against an “impaired” person in the job application process if the person’s “impairment… would impose unjustifiable hardship” on the employer given “the nature of the work”.
“Impairment” means the total or partial loss of the person’s bodily functions; bodily disfigurement; or a condition that impairs a person’s thought processes, or emotions.
That Act also contains a provision making it unlawful to request information from a person “on which unlawful discrimination might be based”.
So although s 571D claims history requests are permitted, the circumstances in which the information is used might be indicative of a discriminatory purpose.
Applicants denied a position because of their medical history, may well have a claim for compensation under the Anti-Discrimination Act. The success of such a claim will depend on the nature of the job being applied for and the nature of the worker’s “impairment”.
Employers should carefully examine their job application forms to ensure that the questions are cast in a way so as to comply with both Acts.