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Guidelines for writing and publishing recruitment advertisements

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This page was first created in December, 2012

 

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).