Willmott v Woolworths Ltd

[2014] QCAT 601

CITATION: Willmott v Woolworths Ltd [2014] QCAT 601

PARTIES:	Steven Willmott (Applicant)
v
Woolworths Ltd (Respondent)

APPLICATION NUMBER: ADL016-14

MATTER TYPE: Anti-discrimination matters

HEARING DATE: 29 September 2014

HEARD AT: Brisbane

DECISION OF: Senior Member Oliver

DELIVERED ON: 11 November 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The respondent pay to the applicant the sum $5,000.00 by 19 December 2014.

CATCHWORDS:

ANTI-DISCRIMINATION – where respondent’s online application for employment form required date of birth and gender – where applicant for a position with the respondent required to upload personal information relating to right to work in Australia – whether mandatory requirement to provide personal information amounts to direct discrimination – whether information reasonably require for a purpose not involving discrimination – whether statutory defence to the respondent’s conduct

CONSTITUTIONAL LAW – whether s 124 of the Anti-Discrimination Act conflicts with an employer’s obligations under the Migration Act (Cth) not to employ unlawful non-citizens (Cth) – whether s 124 interferes with the respondent’s right to obtain reasonably required personal information under the Privacy Act (Cth) – whether the s 1124 should be declared invalid under s 109 of the Constitution

Anti-Discrimination Act 1991 ss 7, 8, 124, 209
Migration Act 1958 (Cth) s 245B
Privacy Act 1988 (Cth) s 13G

Dickson v The Queen (2010) 241 CLR 491

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Self Represented

RESPONDENT: Mr Seck of counsel instructed by Henry Davis York for the respondent.

REASONS FOR DECISION

1. In December 2013 Woolworths Ltd advertised for a console operator’s position at its petrol outlet at Beerwah (Qld). Mr Willmott, who was unemployed at the time and lives in Beerwah, saw the advertisement on Woolworths’ website and decided to apply for the position utilising Woolworths’ online application system. In completing the online application, Mr Willmott was required to provide answers to certain mandatory fields, which included his gender, date of birth and was also required to provide documentary proof of his right to work in Australia.

2. He did not complete the application because he was offended with Woolworths’ insistence on the provision of the above information. He then lodged a complaint with the Anti-Discrimination Commission of Queensland. After receiving a response to the complaint from Woolworths, the Commission referred the complaint to the Tribunal for consideration.

3. Woolworths concedes that, prima facie, the request of the private information could amount to discriminatory conduct. However, it says that the information was reasonably required for purposes that did not involve discrimination, and relies on this as a defence under s 124(3) of the Anti-Discrimination Act 1991 (the ADA Act). In the alternative, it says that in respect of the right to work documentation, it relies on its statutory obligations under the Migration Act 1958 (Cth) not to employ unlawful non-citizens. Insofar as the ADA Act conflicts with these obligations, the Migration Act must take precedence. A similar argument applies with respect to the application of the Privacy Act which permits the gathering of private information in certain circumstances.

4. Section 7 of the…