Legal pitfalls to avoid in the hiring process
Taking on a new employee can be a positive time for any business – but there are legal considerations to keep in mind as an employer.

Andrew Jewell is Principal Lawyer at employment law firm McDonald Murholme.

Watch as he shares what you need to know in order to avoid legal mishaps in the hiring process.

Do I have to advertise every job?

Employers aren’t obligated to advertise every role they are filling, but Jewell says it might be worthwhile. “Employers can essentially employ anyone they want, but if you want to avoid any issues later with discrimination, you might want to go through a formal interview process,” he says.

What can’t I ask candidates?

There are a number of questions that employers have no right to ask candidates. “In an interview, employers can’t ask anything that can be taken as a discriminatory question,” Jewell says.

He recommends avoiding asking questions that require the candidate to offer information that’s not related to the role, such as:

  • Do you have children?
  • How old are you?
  • What’s your ethnic background?
  • What’s your religion?

“Asking someone a question about any previous injuries is usually not legal, except if it’s relevant to their ability to perform the role,” Jewell says.

What can I ask a candidate’s referees?

Employers can contact a candidate’s referees without their permission, however Jewell cautions that this may not be the best way to begin an employment relationship.

“When contacting a candidate’s past employers, an employer really can ask whatever they want,” he says.

“Previous employers might limit what they say to the circumstances of the employee’s departure and their service, but employers are free to ask what they want about performance, personality or any other information.”

It’s also not illegal for employers to give a bad reference about a past employee, as long as they stick to the facts.

Know the difference between casual and part-time employees

“Employers should think about the needs of their business carefully,” Jewell says. “You’ll need to know whether you need casual or part-time employees.”

The main difference between a casual employee and a part-time employee is that a part time employee works set hours, accrues annual leave and sick leave and is owed notice on termination.

Casual employees are not entitled to any of that, but they do get paid a higher rate to offset those entitlements. “Basically, if you need someone to work set hours each week, you need a part-time employee,” Jewell says.

What’s an intern and when is it okay to hire one?

An intern is someone who is engaged for their own training and education benefits. “Interns can be paid or unpaid, but they don’t qualify for employment rights,” Jewell says. “If you are engaging someone to add value to your business, that person should be engaged as an employee, not an intern.”

Before hiring staff members, make sure you’re aware of your legal obligations. If you need further information, contact an employment lawyer or Fair Work Australia on 13 13 94 or   

Information provided in this article is general only and it does not constitute legal advice and should not be relied upon as such. SEEK provides no warranty as to its accuracy, reliability or completeness. Before taking any course of action related to this article you should make your own inquiries and seek independent advice (including the appropriate legal advice) on whether it is suitable for your circumstances.