Was the exclusion on the basis of the inherent requirements of the role? The definition of in s 3(1) of the AHRC Act provides that ‘discrimination’ discrimination not include any distinction, exclusion or preference, in ‘does respect of a particular job that is based on the inherent requirements of the job’. In light of my preliminary view that Suncorp’s decision not to engage Mr BE in the role was an exclusion on the basis of criminal record, I must consider whether the exclusion was based on the inherent requirements of the job. Paragraph (c) of the definition is an to the prohibition against ‘exception’ discrimination. It should therefore be interpreted strictly, so as not to result in limitation of the protection conferred by the legislation. Identifying the requirements’ ‘inherent Appropriate identification of the inherent requirements of the job is a to proving that the complainant is unable to perform those inherent requirements. An requirement’ is something that is to the position’ and ‘inherent ‘essential not It is an feature’ or characteristic’. ‘peripheral’. ‘essential ‘defining Further, the inherent requirements must be in respect of particular job’. ‘a The term particular job’ in Article 1(2) of the ILO 111 Convention has been ‘a construed by reference to the preparatory work and the text of the Convention to mean specific and definable job, function or task’ and its ‘a requirements’ are those required by the characteristics of the ‘inherent particular job. The fact that certain statements appear in the position description document is not sufficient to establish that they are requirements’ of this ‘inherent particular job. In Qantas Airways v Christie, Brennan J stated that: The question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer’s undertaking and, except where the employer’s undertaking is organised on a basis which impermissibly discriminates against the employee, by reference to that organisation.
Was the exclusion on the basis of the inherent requirements of the role? The definition of ‘discrimination’ in s 3(1) of the AHRC Act provides that discrimination ‘does not include any distinction, exclusion or preference, in respect of a particular job that is based on the inherent requirements of the job’. In light of my preliminary view that Suncorp’s decision not to engage Mr BE in the role was an exclusion on the basis of criminal record, I must consider whether the exclusion was based on the inherent requirements of the job. Paragraph (c) of the definition is an ‘exception’ to the prohibition against discrimination. It should therefore be interpreted strictly, so as not to result in limitation of the protection conferred by the legislation. Identifying the ‘inherent requirements’ Appropriate identification of the inherent requirements of the job is a to proving that the complainant is unable to perform those inherent requirements. An ‘inherent requirement’ is something that is ‘essential to the position’ and not ‘peripheral’. It is an ‘essential feature’ or ‘defining characteristic’. Further, the inherent requirements must be in respect of ‘a particular job’. The term ‘a particular job’ in Article 1(2) of the ILO 111 Convention has been construed by reference to the preparatory work and the text of the Convention to mean ‘a specific and definable job, function or task’ and its ‘inherent requirements’ are those required by the characteristics of the particular job. The fact that certain statements appear in the position description document is not sufficient to establish that they are ‘inherent requirements’ of this particular job. In Qantas Airways v Christie, Brennan J stated that: The question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer’s undertaking and, except where the employer’s undertaking is organised on a basis which impermissibly discriminates against the employee, by reference to that organisation.
2018_AusHRC_121_FINAL_0.docx