The practice of hiring a new employee has many stages, typically starting with a decision to hire and ending with signing an employment contract and onboarding the new starter. Throughout this process the business will be assessing the candidates suitability for the role; looking at their experience, skills and overall fit within your business. However, there are other equally important areas from a compliance perspective that the business should ensure to consider before moving to hire the individual.

With the pressure of resourcing demands, and the job market being increasingly competitive, it is becoming significantly more important for managers to make fast decisions around hiring. This can make it easy to miss some necessary aspects along the way and open up the business to further risk within this process. Our article outlines the 5 areas to ensure you are asking your candidates to be certain you are hiring the right individual for the role, and setting both the business and the candidate up for success. 

1. Does the candidate have work rights such as citizenship or a valid visa?

In Australia, an individual is only allowed to undertake lawful employment if they are an Australian or New Zealand citizen or if they have a work visa permitting them to work in Australia. Before hiring a candidate, an employer should ask an employee for confirmation they will be able to supply evidence of their work rights, whether this is a birth certificate, passport, or other visa and statutory paperwork. 

The onus of checking a candidate has a valid visa falls to the employer, therefore it’s important that this confirmation is received before an employee is made an offer of employment. If a business is considering making an offer to a candidate with a pending visa, we recommend ensuring that the offer is contingent on a valid approved visa and that no employment commences before the visa is approved. Companies that employ workers without a valid visa can be subject to financial penalties.

2. What references does the candidate give consent to speak to?

Reference checks are an end-stage step of the recruitment process, undertaken when an employer decides to speak to a candidate’s previous employers, former colleagues or personal associates to obtain commentary on the candidates’ working and behavioural history. It’s important to ask a candidate to supply their references and contact details for privacy purposes. Seeking information from references who the candidate did not provide consent to speak to may open up a risk of breaching the Privacy Act 1988 (Privacy Act), particularly if sensitive information is disclosed and then used unlawfully.

Under the Privacy Act, there will be an obligation to disclose information about candidates if they request this be provided to them. However, there is an exception that applies where disclosure would unreasonably impact on the privacy of other individuals (i.e., it would disclose the opinions of the person who gave the reference). To avoid disputes with candidates around this matter, we recommend ensuring a candidate has a clear understanding of who the business is speaking to about them and has consented to this process. You should also ensure that you are requesting relevant information from their references; focusing on aspects such as their skills, ability in the role and experience.

3. Does the employee have any pre-existing injuries or conditions, injuries or illness?

A pre-employment medical assessment will not be necessary (or reasonable) for every hire, however the employer may reasonably ask certain candidates to disclose pre-existing injuries or relevant conditions that may impact their ability to perform the role safely. Asking a candidate for this information will likely be more reasonable where there is a direct correlation to the work being performed – for example, where the work is being performed in a high risk setting such as operating certain machinery or working with dangerous materials. 

However, an individual simply disclosing an injury or illness will not necessarily mean they will be ineligible for the role. The business will then need to consider, likely with the assistance of further medical advice, whether there are reasonable adjustments that can be made to accommodate the individual in the role and whether they can perform the inherent requirements of the role. It is unlawful to discriminate against an individual on the basis of their condition where this will not impact their ability to perform the role, or reasonable adjustments could be made.

In some states such as Victoria, an employee who does not disclose a pre-existing condition and who suffers an exacerbation in the course of their employment, may not be entitled to workers compensation. An employer will only be able to rely on this section of the Workplace Injury Rehabilitation and Compensation Act 2013 (VIC) (WIRC Act) if they strictly adhere to the requirements of section 41 of Act. These requirements include that an employer must, in writing, prior to commencement of employment:

 

  • Ask the employee to disclose any pre existing injury/disease; and
  • Refer the employee to the WIRC Act which states that a failure by the employee to disclose would disentitle them to compensation

4. Can the employee provide up to date personal information such as contact details and qualifications?

It almost goes without saying that an employer should ask an employee to supply  up-to-date qualification and contact information before they commence. This includes their email and phone number as well as the details of an emergency contact should the business have concerns for the employee’s welfare. An address of where the employee lives will be important to have on record for the purpose of being able to post letters or in the event of needing to arrange deliveries or transportation home if the employee is unwell, injured, or intoxicated.

Additional personal information such as what qualifications the employee has obtained is also an important question to ask. Some Modern Awards such as the Social, Community, Home Care and Disability Services Industry Award 2010 [MA000100] contain clauses which automatically entitle employees to certain pay point levels if they hold certain qualifications. If an employer is unaware of the employee holding these qualifications, they may still be obligated to pay the employee at the relevant rate if this is higher than what the employer offered. It’s therefore important to make sure this information is obtained before an offer is made, to avoid any underpayment issues during employment.

5. Are there any restrictions or conflicts of interest that limit their ability to perform work for the company?

When hiring a senior role or bringing on board an employee that may pose a conflict of interest, a business should ask a candidate to disclose if there are any legal obligations that may prevent them from carrying out their duties with the company. Legal obligations may include post-employment restraints enforced by previous employers, such as a contractual agreement to not work with direct competitors or within similar businesses across certain geographical areas. This may also include conflicts of interest such as being in a de facto or married relationship with one of the Company’s key clients.

Understanding any legal restrictions or conflicts associated with the work being performed before hiring an employee can reduce impeding a business’s operations. It may also reduce legal costs associated with making a formal response to a previous employer if they seek to restrict their former employee from working with them through enforcing a restraint of trade clause.

Hiring a new employee can be an exciting step for the business, and it’s important that the business considers these necessary areas to ensure the process is as seamless as possible and starts the employment relationship off on the right foot. If you need any assistance in understanding your obligations throughout the recruitment process, we recommend reaching out to see how our HR Connect team can assist you.

We also recommend reading through our previous article explaining how creating an employment relationship with a candidate may open up their ability to make dismissal claims, even if there is no written employment contract in place. A candidate does not have to be employed before they have protections under the Fair Work Act 2009. 

Disclaimer

The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact HR Connect for advice.

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