Learn more about hiring employees in Australia from some of these frequently asked questions about background checks, the distinction between contractors and employees, etc.
Stay informed and ensure you are complying with Australian employment laws.
Table of Contents
Background Information
Can I perform background checks on applicants? What if I used a third-party service provider?
To filter applicants, background checks are sometimes used and are generally accepted under Australian employment law. However, checks with poor justification carry the risk of discrimination and privacy violation regardless of the conducting party.
Some roles and their background checks:
| Type of roles and their work conditions | Example valid background checks |
| Works with vulnerable individuals | Police records and working-with-children checks |
| Responsible for large financial transactions | Adverse financial history, credit, global sanctions |
| Defense contractor | Security clearances |
Convictions are sometimes not taken into account (spent convictions regimes) depending on the circumstances specified in some legislative schemes.
Can I require the results of a medical examination as a condition of employment?
This request is justifiable if:
- it is part of workplace HSE (Health, Safety, and Environment) compliance, or
- fulfills an industry’s legislative requirements, or
- is related to the ability to perform essential tasks
- it helps you to identify accommodations
- and based on the nature of the work
Can I enforce periodic drug and alcohol tests at the workplace?
Certain workplaces do call for stringent testing regimes, and hence you are justified to refuse to accept a potential employee if they do not want to submit their test results.
Hiring of Employees
Are there any legal requirements to hire certain groups of people?
No there is none, hiring people from disadvantaged communities however is encouraged.
If there is a specific hiring preference or recruitment restriction, it is important that you review the Fair Work Commission (FWC), Fair Work Act 2009 (Cth), and any applicable federal, state, or territory anti-discrimination laws.
Is there a legal duration of fixed and maximum-term employment contracts?
Currently, none.
From 6 December 2023, the Fair Work Act 2009 (Cth) will include changes to fixed and maximum-term contracts which will restrict them to a limit of 2 years in total. This even includes any renewal or extension to the contracts more than once.
The following are exempted from these changes
- casual employment contracts;
- employees earning above the high-income threshold (currently A$162,000 per annum);
- contracts permitted by a modern award;
- training or apprenticeship arrangements;
- contracts for distinct and identifiable tasks involving specialized skills that the employer does not have;
- contracts for essential work during a peak demand period (such as fruit picking or other seasonal work);
- contracts for work during emergency circumstances or temporary absence of another employee (such as employees on parental leave, sabbatical or long-service leave);
- some government-funded positions; and
- some positions that are appointed under the governance rules of a corporation or organization.
How long are probations, according to the law?
No dictated length, the period is agreed upon between both the employer and employee.
Employers need to obtain agreement from the employee to perform adjustments to the employment contract. Notice periods required under the Fair Work Act 2009 (Cth) may not be removed by simply extending the probationary period.
How is an employee different compared to an independent contractor?
The legal rights and obligations in the contract will be the decider. Labels to describe the working relationship used in the contract, will not determine how the relationship is characterized.
“Employees work in and are part of your business. Contractors are running their own business.” – Australian Taxation Office (ATO)
Do I need to be aware of any laws when it comes to hiring temporary staff from recruitment agencies?
Recruitment agencies need to have licenses in some Australian states or territories such as South Australia, Western Australia, the Australian Capital Territory, and Queensland. However on the Commonwealth level, there is no such legislation.
Still, the recruitment agency that you are working with needs to be compliant with labor law and employment legislation.
Hiring employees in Australia requires careful consideration of legal requirements. From background checks to contract distinctions, understanding the nuances is vital.
Wish there was an easier way to hire locals or expats in Australia, and stay compliant with local regulations? Let us help you with that, contact us now.
