LexisNexis Practical Guidance®

Straightforward guidance across a range of topics

Overview

  • Recruitment

  • Work relationships

  • Foreign workers

  • Employer obligations

Various legal issues may arise in the process of recruitment of new employees to work in an employer’s business or other organisation (ie government employers).

The principal areas that employers and others (such as recruitment agencies) need to consider, and which may give rise to claims by job applicants and/or those who are eventually recruited to a particular position, are as follows:

Employment advertisements

All forms of job advertisements must be non-discriminatory, and must not be misleading, in order to avoid liability under federal, state and territory anti-discrimination legislation or the Australian Consumer Law.

Importantly, however, a job advertisement which requires prospective employees to possess a particular personal characteristic will not fall foul of anti-discrimination laws if that characteristic if a genuine occupational requirement of the job.

See Employment advertisements.

Pre-employment representations

Representations about matters such as salary or bonuses, future job security, the nature of the position, or promotion prospects may be considered to have binding legal effect — with the result that an employee could bring an action for breach of contract and/or for breaches of various provisions of the Australian Consumer Law, if such representations are not honoured.

See Pre-employment representations.

Recruitment-specific anti-discrimination provisions

Federal, state and territory anti-discrimination statutes contain specific provisions prohibiting discrimination in relation to advertising and the offering of employment. These provisions also extend to prohibiting discrimination in relation to employment policies, pre-employment questions, interviews, and application forms and other forms (such as medical forms and criminal records check forms) used in recruitment and pre-employment processes.

See Recruitment-specific anti-discrimination provisions.

Employee/independent contractor distinction

Work relationships in Australia take a variety of different forms. The most common is the employment relationship, under which an employer engages an employee to perform paid work. A contractor relationship arises when a principal contractor engages an independent contractor to carry out paid work.

The distinction between employment and contracting is significant because only employees have certain rights (and some obligations) under most employment and workplace relations legislation. For example, minimum employment standards, award/agreement coverage and unfair dismissal protection. However, some laws, such as anti-discrimination and occupational health and safety statutes, apply to both employees and independent contractors.

The common law “multi-factor” test is applied by courts and tribunals to determine whether a worker is an employee or an independent contractor for purposes of the applicable legislation (ie to decide whether a worker is eligible to bring an unfair dismissal claim).

The development of the gig economy has created ongoing litigation in the courts to establish whether gig worker relationships are employment or contracting in nature. The difficulty arises because gig workers provide services through digital platforms and this does not fit comfortably with the traditional analysis of characterising a relationship through the common law “multi-factor” test. It is likely that government will need to legislate to address this difficulty and to set down minimum work standards for the gig workforce.

See Employee/independent contractor distinction.

Independent contractors

Contracting relationships may be subject to the operation of the Independent Contractors Act 2006 (Cth) (IC Act).

This legislation applies to specified forms of “services contracts” and certain state or territory legislation does not apply to the parties to such a contract. Part 3 of the IC Act establishes a process for the review of harsh or unfair contracts, on application to a competent court by a party to a services contract covered by the legislation.

See Independent contractors.

What are the general protections against sham contracting?

A ”sham contract" arises when an employment relationship (contract of service) is misrepresented as an independent contracting arrangement (contract for services).

Workers who are common law employees are protected against various forms of “sham contracting” by the provisions in Pt 3-1, Div 6 of the Fair Work Act 2009 (Cth) (FW Act).

These prohibit employers misrepresenting an employment relationship as a contracting relationship or dismissing an employee to re-engage the employee as an independent contractor. Civil remedies, including penalties, may be imposed upon an employer in respect of breaches of these provisions. It can also be a source of underpayment claims and several class actions have been commenced on this basis.

See What are the general protections against sham contracting?.

Labour hire arrangements

Historically, employment on an ongoing full-time or part-time basis has been the norm in the Australian workforce. However, other types of employment have become increasingly common, including casual work and labour hire arrangements.

A labour hire arrangement arises when a labour hire company provides workers to a “host business” which is a customer of the labour hire company. The worker may an employee of the labour hire company or be engaged through a contracting arrangement. This creates a tri-partite relationship under which the host business is able to avoid the rights and obligations it would otherwise owe the worker if they were engaged directly as an employee and reduces the risk that a contracting arrangement may give rise to a court determining that there is a common law employment relationship. A labour hire arrangement has several advantages for a company including, reducing overall administration and labour costs and increasing work-force flexibility to fluctuations in demand for labour.

See Labour hire arrangements.

Casual employment

Casual employees have no guaranteed hours of work each week, they can be terminated with minimal notice and they are excluded from many entitlements afforded to permanent employees. As compensation for the unpredictably of their work and lack of entitlements, casuals are paid a special loading on top of their ordinary rate.

There is no definition of a “casual employee” in the Fair Work Act 2009 (Cth) (FW Act) and the term takes its ordinary common law meaning: WorkPac Pty Ltd v Skene [2018] FCAFC 131.

Whether an employee is a casual employee will depend upon the substance of the engagement, rather than its form or appearance. This requires an objective assessment of the nature of the employment as a matter of fact and law having regard to the circumstances.

If a ”casual" employee is paid a casual loading but it later determined by a court to be an ongoing employee at common law, it is currently unclear whether that loading can offset unpaid employee entitlements which have not been accrued or paid. This issue is being agitated in Workpac v Rossato [2018] FCA 2100. Regulation 2.03A of the Fair Work Regulations 2009 (Cth) will operate to prevent this “double dipping” if the requirements of that regulation have been met.

See Casual employment.

Traineeships/apprenticeships

Traineeships and apprenticeships are arrangements that allow for practical work experience alongside occupational training. Upon the completion of a training program, a trainee or apprentice gains a formal qualification. Specific legal rules also apply to workers engaged as trainees and apprentices, including the provisions of training under applicable state or territory legislation.

See Traineeships/apprenticeships.

Public sector employment

Employment in the public sector at federal, state and territory levels is regulated by both the applicable workplace relations legislation (ie FW Act, Industrial Relations Act 1996 (NSW)) and applicable federal, state or territory legislation dealing with public sector management (ie Public Service Act 1999 (Cth), Public Sector Employment and Management Act 2002 (NSW)).

See Public sector employment.

The right to work in Australia

Only Australian citizens, permanent residents and others who hold appropriate visas are entitled to work in Australia. New Zealand citizens have an unrestricted right to work in Australia under special category visas.

Employers and labour suppliers must confirm the working entitlements of all workers. The Migration Act 1958 (Cth) applies criminal offences and civil liability provisions to any person who allows or refers a non-citizen to work without a visa or in breach of restrictions in their visa.

See The right to work in Australia.

Charging for a migration outcome

The Migration Act 1958 (Cth) prohibits payment-for-visa conduct. This is where a person asks for, receives, offers or provides payment or other benefits in return for a range of “sponsorship-related events” including entering a sponsorship arrangement or making a nomination in relation to a visa, the engagement of a person in work or an activity with the sponsor, and the termination or withdrawal of sponsorship or nomination. Breaches of these provisions can attract civil and criminal penalties, and result in visa cancellation.

See Charging for a migration outcome.

Do employers need to provide a Fair Work Information Statement to all employees?

Employers covered by the national workplace relations system are required to give all new employees a Fair Work Information Statement; which contains information about various rights and obligations of employers and employees under the Fair Work Act 2009 (Cth) (FW Act).

Detailed rules under the Fair Work Regulations 2009 (Cth) (FW Regulations) apply in relation to the manner in which the Statement must be given to employees.

Civil remedies, including penalties, may be imposed if an employer fails to comply with the obligation to provide the Statement to an employee.

See Fair Work Information Statement.

Does an employer need to keep employee records?

Employers falling within the national system are subject to detailed record-keeping obligations under the FW Act and FW Regulations. These include requirements to maintain records, in the required form, in relation to matters such as the type of employment, starting date, pay and allowances, overtime, averaging of working hours, leave entitlements and balances, and superannuation contributions.

Employees and former employees are entitled to inspect and copy their employment records, which may also be made available to union officials (under union “right of entry” provisions) and Fair Work Ombudsman inspectors.

Employers must also provide employees with pay slips that meet the requirements set down in the FW Regulations.

Civil remedies, including penalties, may be imposed if employers fail to comply with their obligations in relation to record-keeping and the provision of pay slips.

See Record-keeping obligations of employers.

Guidance

Show All Guidance

Checklists

  • Checklist for auditing for underpayments of employee entitlements

    LexisNexis Legal Writer team
  • Checklist for Complaint handling

    B. Pendlebury, Pendlebury Workplace Law
  • Checklist for conducting due diligence before managing absenteeism issues

    LexisNexis Legal Writer team
  • Checklist for Discrimination questionnaire

    B. Pendlebury, Pendlebury Workplace Law
  • Checklist for ensuring fairness when performance managing ill or injured employees

    LexisNexis Legal writer team
  • Checklist of How to determine whether a union official is authorised to enter your workplace

    LexisNexis Legal Writer team
  • Checklist of Rights and obligations relating to union rights of entry

    LexisNexis Legal Writer team
  • Checklist for Union right of entry

    Giri Sivaraman and Aron Neilson, Maurice Blackburn
  • Employment contracts — Checklist for Bullying questionnaire

    B. Pendlebury, Pendlebury Workplace Law
  • Employment contracts — Contractor vs employee checklist

    B. Pendlebury, Pendlebury Workplace Law
  • Employment contracts — Checklist for Establishing an OHS/WHS committee

    B. Pendlebury, Pendlebury Workplace Law
  • Employment contracts — Developing policies

    LexisNexis Legal Writer team
  • Employment contracts — Policy procedure

    B. Pendlebury, Pendlebury Workplace Law
  • Employment contracts — Workplace accidents

    B. Pendlebury, Pendlebury Workplace Law
  • Employment contracts — Workplace surveillance

    B. Pendlebury, Pendlebury Workplace Law
  • Ending employment — Abandonment of employment

    B. Pendlebury, Pendlebury Workplace Law
  • Ending employment — Redundancy

    B. Pendlebury, Pendlebury Workplace Law
  • Ending employment — Termination of employment

    B. Pendlebury, Pendlebury Workplace Law
  • Enterprise agreements — Individual flexibility arrangement checklist

    Finlaysons
  • Fair treatment in the workplace — Management of disciplinary meetings

    B. Pendlebury, Pendlebury Workplace Law
  • Industrial action — Employee claim action

    G. Sivaraman and A. Neilson, Maurice Blackburn Lawyers
  • Industrial action — Employee response action

    G. Sivaraman and A. Neilson, Maurice Blackburn Lawyers
  • Industrial action — Employer response action

    G. Sivaraman and A. Neilson, Maurice Blackburn Lawyers
  • Industrial action — Right of entry: the rights of employers and permit holders once entry has occurred

    Giri Sivaraman and Aron Neilson, Maurice Blackburn
  • Minimum employment conditions — Request for flexible work arrangements

    B. Pendlebury, Pendlebury Workplace Law
  • Modern slavery — Checklist — preparing to comply with modern slavery legislation

    LexisNexis Legal Writer team
  • Starting work — Harassment questionnaire

    B. Pendlebury, Pendlebury Workplace Law
  • Starting work — Probationary period

    B. Pendlebury, Pendlebury Workplace Law
  • Starting work — Recruitment checklist

    B. Pendlebury, Pendlebury Workplace Law
  • Starting work — Review of manager

    B. Pendlebury, Pendlebury Workplace Law

Legislation

  • Employment advertisements

  • Pre-employment representations

  • Recruitment-specific anti-discrimination provisions

  • Overview — Work relationships

  • Employee/independent contractor distinction

  • Independent Contractors Act 2006

  • Sham contracting

  • Labour hire arrangements

  • Casual employment

  • Traineeships/apprenticeships

  • Public sector employment

  • The right to work in Australia

  • Overview

  • Fair work information statement

  • Record-keeping obligations of employers

Forms & Precedents

Sham contracting

The right to work in Australia

Advertising

Employee/independent contractor distinction

Independent Contractors

Labour hire arrangements

Casual employment

Traineeships/apprenticeships

Employing migrant workers

Latest Legal Updates

19 May 2020

Workplace relationships — No sick leave or compassionate leave during stand down

18 May 2020

No right to not hire or force staff to sign up to COVIDSafe app

18 May 2020

Underpayments — FWO submissions to the Senate Inquiry into wage theft

15 May 2020

Pandemics and COVID-19 — FWC update on JobKeeper disputes, Awards/EBAs, tsunami of legal claims and ongoing wage theft

14 May 2020

Modern slavery — Modern slavery reporting extensions and COVID-19 risks

14 May 2020

Pandemics and COVID-19 — COVIDSafe planning tool and Safe Work Australia online hub

14 May 2020

Pandemics and COVID-19 — JobKeeper Scheme resources for lawyers

11 May 2020

Classification of employees and disputes over JobKeeper scheme eligibility

29 Apr 2020

Pandemics and COVID-19 — Jobkeeper disputes benchbook published by Fair Work Commission

29 Apr 2020

Stand downs and payments for accrued personal/carer’s leave

21 Apr 2020

Jobkeeper disputes and the Fair Work Commission — Stop press ATO changes

03 Apr 2020

Beyond COVID-19: The unresolved epidemic of wage theft and underpayments

27 Mar 2020

Navigating COVID-19 in the workplace — essential links

19 Mar 2020

Quality check — COVID-19 decision-making to reduce workforce legal claims

28 Feb 2020

Gender equality — Victoria leads the way

20 Feb 2020

Potential broadening of coverage of the Miscellaneous Award — 4 yearly review of modern awards — Miscellaneous Award 2010 [2020] FWCFB 754

14 Feb 2020

Significant penalties for wage theft imposed on employer and director

16 Jan 2020

Bushfires and the impact on employees

09 Jan 2020

Modern Award changes effective from 1 March 2020

19 Dec 2019

Religious Discrimination Bill 2019 (Cth)

12 Dec 2019

Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019 (Vic)

04 Dec 2019

Keep records current — What does Ghimire mean in terms of an employer’s onus of proof?

03 Dec 2019

Can you reject a job applicant with a criminal record?

26 Nov 2019

Changes to Super loophole

18 Nov 2019

Personal leave calculated on days not hours worked

13 Nov 2019

Prepare your Whistleblower Policy by 1 January 2020!

15 Oct 2019

Reminder of Employment Law Changes for the 2019–2020 Financial Year

19 Jun 2019

Fair Work Commission publishes amended forms

06 Jun 2019

Increase to national minimum wage

01 Apr 2019

Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth)

18 Feb 2019

Looming increases in the “right to request casual conversion”

15 Jan 2019

New regulation clarifies offsetting rules for casual loading payments

28 Dec 2018

Model casual conversion clause now applies to almost all modern awards

19 Dec 2018

Fair Work Ombudsman conducts surprise audits

12 Dec 2018

Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 (Cth)

07 Dec 2018

Federal Modern Slavery Act to take effect from 1 January

28 Nov 2018

New family friendly working arrangements from 1 December 2019

26 Nov 2018

Joshua Klooger v Foodora Australia Pty Ltd [2018] FWC 6836

14 Nov 2018

FWC changes termination of payment terms in Modern Awards

08 Nov 2018

Prime Minister Morrison announces expansion to the working holiday visa and seasonal workers programs

01 Nov 2018

Long Service Leave Act 2018 (Victoria) comes into force

21 Sep 2018

Fair Work Commission has proposed new flexible working clause

21 Sep 2018

Maximum term contracts may still give rise to unfair dismissal claims

13 Sep 2018

External payroll provider fined for facilitating underpayment of staff

12 Sep 2018

Labour hire agencies cannot abrogate responsibilities to treat employees fairly

31 Aug 2018

Prior service as casual may not count as service when calculating redundancy entitlements

17 Aug 2018

Full Federal Court clarifies who is a casual employee for purposes of FW Act

31 Jul 2018

Notice of entry requirements

24 Jul 2018

FWC confirms that termination of employment must be communicated in person

05 Jul 2018

FWC clarifies interaction between the Small Business Fair Dismissal Code and redundancy provisions

28 Jun 2018

Victoria's Labour Hire Licensing Bill passed into law

26 Jun 2018

Fair work system — Reasonable steps to promote compliance essential for franchisors to avoid liability and brand damage

18 Jun 2018

Annual leave does not accrue during employer lock out

01 Jun 2018

Minimum wage set to increase by 3.5% from 1 July 2018

31 May 2018

First racial discrimination case instigated by Fair Work Ombudsman results in imposition of heavy fines

22 May 2018

Long Service Leave Act 2018 (Vic) receives Royal Assent

15 May 2018

Contempt of court case brought by Fair Work Ombudsman results in imposition of jail term

11 May 2018

Leave entitlement expressed in hours rather than days per year may contravene NES

27 Apr 2018

WHS right of entry notice valid despite minor defect

19 Apr 2018

Commencement of labour hire licensing scheme in Qld

16 Apr 2018

Summary dismissals by small businesses

12 Apr 2018

Employer may direct employee to attend medical assessment while on sick leave

09 Apr 2018

How to treat car allowance for purposes of unfair dismissal high income threshold

26 Mar 2018

Right to unpaid domestic violence leave to be included in all modern awards

17 Mar 2018

Resolving conflict in medical evidence in unfair dismissal claims

06 Mar 2018

Amalgamation of super union approved

09 Mar 2018

Redundancy pay and the ordinary and customary turnover of labour exception

15 Feb 2018

Union official ordered to pay fine from own pocket

24 Jan 2018

Uber driver not an employee

18 Dec 2017

Past contraventions of bargaining-related orders will preclude party from taking or organising protected industrial action

11 Dec 2017

NSW to close loophole that allow employers to discriminate against pregnant women

24 Nov 2017

Obligation to consult in relation to major changes to enterprise

10 Nov 2017

Notice of termination may run concurrently with R&R leave

28 Oct 2017

When will an unpaid work placement give rise to an employment relationship?

25 Oct 2017

Power of FWC to deal with disputes under enterprise agreements clarified

19 Oct 2017

Casual conversion on a "like for like" basis

12 Oct 2017

Settlement agreements in unfair dismissal disputes

05 Sep 2017

Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017

28 Aug 2017

Former bargaining representatives entitled to be served with application for approval of enterprise agreement

16 Aug 2017

More enterprise agreements being approved with undertakings

11 Aug 2017

Fair Work Amendment (Corrupting Benefits) Bill 2017

07 Aug 2017

Repudiatory breach by employer releases employee from post-employment restraints — Crowe Horwath (Aust) Pty Ltd v Loone [2017] VSCA 181

17 Jul 2017

Relevance of delay in effecting an "immediate dismissal" under the Small Business Fair Dismissal Code — Chen v Australian Catering Solutions Pty Ltd T/A Hearty Health [2017] FWC 3930

17 Jul 2017

High income threshold for unfair dismissal claims — Kaufman v Jones Lang LaSalle Pty Ltd T/A JLL (2017) FWC 2623

17 Jul 2017

Extension of time to file unfair dismissal application — Hambridge v Spotless Facilities Services Pty Ltd [2017] FWCFB 2811

17 Jul 2017

General protections — Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (No 4) [2017] FCA 5

07 Apr 2017

Right of entry — Ramsay v Menso [2017] FCCA 1416

07 Apr 2017

Conversion of casual employees to permanent employment — Four yearly review of modern awards [2017] FWCFB 3541

07 Apr 2017

Penalties under the Fair Work Act 2009 (Cth) set to rise

07 Apr 2017

Enterprise agreements — Application by Lendlease Engineering Pty Limited [2017] FWC 3080

07 Apr 2017

Right of entry — Australian Building and Construction Commissioner v Powell [2017] FCAFC 89

07 Apr 2017

Anti-bullying — Trevor Yawirki Adamson [2017] FWC 1976

07 Apr 2017

Restraint of trade — Naiad Dynamics US Inc v Vidakovic [2017] WASC 109

07 Apr 2017

Dispute resolution under enterprise agreements — Australian Rail, Tram and Bus Industry Union v Asciano Services Pty Ltd t/a Pacific Nation [2017] FWCFB 1702

07 Apr 2017

Payment of wages — Fair Work Ombudsman v Blue Impression Pty Ltd & Ors [2017] FCCA 810

20 Jan 2017

Foreign workers — ATO News: Working holiday maker employers

18 Jan 2017

Employer obligations — The Tax Institute – ATO News: Receiving cash for work you do