This survey talks about the concept of "ghost jobs", job postings that the company leaves open for longer than necessary or doesn't actually intend to fill. I'm curious about the second one, as a job posting that is just gathering resumes without a job behind it seems at least ethically dubious, if not outright illegal. Are there any laws that would apply to these postings?
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Misleading or deceptive conduct in trade or commerce is illegal
Advertising a position you have no intention of filling is misleading and deceptive. So, that part’s easy.
In Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17, in a split decision, the High Court interpreted “in trade or commerce” to be only activities that are of a trading or commercial nature and not all activities that an organisation might engage in.
For the present situation, David Walker v Salomon Smith Barney Securities Pty Limited & Anor [2003] FCA 1099 [176-183] summarises the authorities that pre-employment negotiations are “in trade or commerce”.
Whether that extends to merely advertising a “ghost” position is an open question but given the distorting effect that it could have on the relevant employment market and that it could induce candidates to waste their time applying, it is possible if not likely that such activity would be captured.
So, given that it’s definitely misleading or deceptive and it is probably occurring in trade or commerce, it’s very likely illegal.
Dale M
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