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Top 10 Questions Employers Should Ask When Hiring and Firing in Australia

By: Val Gostencnik

Submitted by Firm:
Corrs Chambers Westgarth
Firm Contacts:
John Tuck
Article Type:
Legal Article
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HIRING IN AUSTRALIA:

  1. Is the prospective employee an Australian citizen or otherwise legally entitled to work in Australia?  Non-citizens must have a valid work visa.  What conditions of employment should be agreed up front in respect of any visa arrangements?
  2. Who is the employing entity?  This can be unclear in circumstances where an employee will perform work for a number of companies in a group of related companies.
  3. Is the worker to be employed as an employee or engaged as an independent contractor?  Or alternatively engaged via a labour hire agency?
  4. What (if any) pre-employment checks are to be required (e.g., criminal record checks, medical examinations)?  Are these requirements consistent with anti-discrimination legislation?
  5. Will the terms and conditions of employment be regulated by a modern award or enterprise agreement? 
  6. Do the terms and conditions of employment meet the National Employment Standards under the Fair Work Act 2009 (Cth) (FW Act)?
  7. Will the employee be required to comply with company policies?  If so, are these policies intended to be incorporated into the contract of employment?
  8. Will the employment be casual or ongoing, for a fixed period or a fixed task?  Is the employment subject to a probationary period?
  9. Should the terms of employment include post-employment constraints, obligations relating to confidentiality that survive the termination of the contract, and intellectual property rights? 
  10. In what circumstances may the contract lawfully be terminated and how?

FIRING IN AUSTRALIA:

  1. What are the lawful requirements for terminating employment under the terms of the contract of employment, the National Employment Standards, and any applicable modern award or enterprise agreement?
  2. Will the employee work throughout his/her notice period or will the employer pay the employee in lieu of notice, bringing the employment to an immediate end?  Alternatively, can the employer require the employee to take ‘garden leave’ (i.e., remain employed but required not to attend or perform work until expiration of the notice period), ensuring ongoing confidentiality and fidelity obligations during that time?
  3. Ensure that the reasons for termination do not include grounds protected by the FW Act or anti-discrimination legislation, for example, discriminatory grounds (i.e., race, sex, age, disability) or temporary absence from work due to illness, union or non-union membership, filing complaints against the employer, absences due to parental leave, or voluntary emergency management activities.
  4. Does the employee have access to unfair dismissal remedies?  If so, ensure that the termination of employment is not harsh, unjust, or unreasonable. 
  5. Has the employee engaged in serious misconduct (for example refusing to comply with any lawful direction, engaging in fraud, theft, or bullying behaviour)?  If so, the employment may be terminated summarily (without notice).
  6. Is the termination for reason of redundancy (i.e., the employer no longer wishes the job the employee is performing to be done by anyone)?
  7. If the termination is for reason of redundancy, have the requirements under the contract, any applicable enterprise agreement or modern award, or the National Employment Standards been complied with? For example, have consultation requirements been met?  What are the employee’s notice and severance pay entitlements?  Where redundancy arises due to a transfer of business from one entity to another, the employer may be exempt from the obligation to make severance payments, as acceptable alternative employment has been arranged for the employee.
  8. Will the employer be seeking to enforce applicable post-employment restraints? Will these be enforceable in the circumstances?
  9. Will all accrued leave entitlements (i.e., annual leave and long service leave) and any outstanding wages be paid to the employee upon termination of employment? 
  10. Should the employers consider seeking to enter a deed of release/settlement agreement with the employee to avoid or resolve potential claims arising from the termination of an employee’s employment?