When recruiting an employee, make sure you understand your legal rights and obligations.
Equal opportunity and anti-discrimination law
Anti-discrimination laws exist at both a state and federal level which prohibit discrimination on the basis of sex, age, disability and race. Workplace rights and responsibilities are set out in the following legislation:
- Equal Opportunity Act 2010
- Age Discrimination Act 2004
- Disability Discrimination Act 1992
- Racial Discrimination Act 1975
- Sex Discrimination Act 1984
Australian Consumer Law
It is illegal to mislead job seekers or misrepresents any aspect of an available position, by doing so you may incur penalties under Australian Consumer Law.
Screening procedures for potential candidates
There are various types of screening procedures that you may need to conduct depending on your organisations circumstances, including:
- Working with children checks
- Criminal record checks (Police checks)
- Other screening tests.
Working with children checks
Employees of any organisation who will be undertaking ‘child related work’ as prescribed under the Victorian Working with Children Act 2005 must not commence in that role without a valid Working with Children Check.
The Working with Children Check helps protect children from physical and sexual harm. The scheme aims to prevent those who pose a risk to children from working or volunteering with them.
Criminal record checks
If your organisation is required to conduct a criminal record check you must contact Victoria Police. Victoria Police will not provide information about an individual's criminal history without that person’s written consent.
Police checks are different from a Working with Children Check and you may require both, depending on the nature of the work being done by the employee. Not all criminal offences will revealed through a Working with Children Check. A police check allows an organisation to be aware of all previous convictions (including child related ones). This may be appropriate to the employee’s role if it will involve activities like handling money or driving clients between locations.
Other screening tests
Even when there’s no legal requirement for background checks, it’s recommended that an organisation screens all potential employees. This may include reference checks, medical tests, and drug and alcohol checks.
An organisation may use background checks or screening as part of a risk management process, and as a way of satisfying the organisation’s duty of care to those who interact with it such as clients, volunteers, other employees and the general public.
Undertaking basic background checks, and checking referee details is a good way to fulfilling your legal obligations and provide a safe workplace when recruiting a new employee.
Privacy laws often apply and govern the way your organisation must manage personal information it has collected during the recruitment process. Even if privacy laws don't apply to your organisation, they should consider how they use, store and disclose information that might be private or sensitive.
For all employee types:
- Pay the right wages and other allowances.
- Provide a safe and healthy workplace.
- Encourage employee to raise issues in the workplace.
- Conform to relevant State and Commonwealth legislation.
For apprentices and trainees:
- Follow the conditions set out in the Training Agreement and Training Plan.
- Provide a quality work experience and structured training program.
- Make sure qualified people supervise apprentice/trainee.
- Provide release from routine duties as outlined in the Training Plan and Training Agreement.
- Acknowledge that time training off-the-job is paid time.