Working within legislative requirements

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All employment within Australia, including that of Australian Apprentices, involves conforming with federal and state/territory laws.

There are a number of federal and state laws which influence what you can lawfully do or say when recruiting employees.

1. Discrimination and equal employment opportunity

Discrimination and equal employment opportunity issues are covered by various state and federal laws.

The Australian Human Rights and Equal Opportunities Commission has best practice guidelines aimed at assisting employers in the elimination of discrimination and harassment, and the promotion of equal employment opportunities.

As state and federal laws vary your State Farmers Association will also provide advice on employers’ responsibilities with regard to discrimination and equal opportunities.

Discrimination can be defined as unfavourable treatment of people based on prejudice.

Discrimination and equal employment opportunity issues should directly affect the way you recruit and interview people for positions on your farm.

Depending on which state or federal laws apply it may be unlawful to discriminate against people on the grounds of any of the following:

  • race
  • skin colour
  • physical features
  • national or ethnic origin
  • religious or political beliefs
  • marital status
  • state of being a parent or being childless
  • pregnancy
  • family responsibilities
  • HIV/AIDS status
  • psychiatric disability
  • physical disability
  • intellectual disability
  • gender
  • sexual preference
  • trade union activity
  • irrelevant criminal record

You should not use any of the above as a reason not to employ someone.

Pay close attention to:

  •  the statements you make in your job advertisements and information sent to prospective applicants;
  • the way you frame your interviewing questions;
  • your conduct during the interview and recruitment process
  • the issues you take into account when selecting workers
  • the reasons you give both successful and unsuccessful job applicants

Interview questions

The following chart can help interviewers distinguish between lawful and unlawful inquiries when seeking information during the interview process. Any questions that are not job-related are not acceptable and may be unlawful if the information is used to discriminate.

SubjectDo NOT ask
Gender/sexAre you male or female?
ResidenceDo you own or rent? What are the names of persons living with you?
Race/colourWhat is your race?
Age Howold are you? ( permitted if under 20 years of age so that junior rates can be calculated/parental consent obtained etc)
National originWhat is your ancestry, national origin, descent, parentage or nationality? What is your native language? What is the nationality of your parents or spouse?
Arrests and convictionsHave you ever been arrested? Have you ever been charged with any crime?
DisabilitiesAre you disabled?
ReligionWhat religious affiliation or denomination are you? What church do you belong to? What religious holidays do you observe?
Marital or family statusWhat is your marital status? How many children do you have? Are you pregnant? Do you plan to have children? What provisions for day care have you made for your children?

A good rule thumb is to focus interview questions on the requirements of the job not the personal details of the person.

People with disabilities

When interviewing people with disabilities, focus on their abilities, and what they can do to satisfy the requirements of the position, bearing in mind that you may have to make reasonable modifications to the work area to accommodate the disability.

Employers are however entitled to assess the reasonableness of any special services or facilities to be made available to an applicant with impairment, and then to assess whether an applicant can adequately carry out the work that is reasonably required.

Employers are also permitted to assess the risk involved, should an employee injure themselves or others, and whether or not that risk is reasonable in the circumstances, given the nature of the employee’s impairment and the environment in which the employee would work or the nature of the work to be performed.

Incentives for Australian Apprentices With Disabilities

Should you consider employing an apprentice with disabilities you, and they, might be eligible for incentives.

The Disabled Australian Apprentice Wage Support Program run by Centrelink is offered to employers employ eligible apprentices with disabilities who would normally face difficulty obtaining an approved apprenticeship.

Assistance and advice regarding incentives for employing an Australian Apprentice with a disability can also be obtained at your local Australian Apprenticeship Centre.

Some state and territory governments may also offer incentive programs.

NOTE: To be eligible to be engaged as an Australian Apprentice an applicant must be an Australian Citizen by birth, or possess a Certificate of Australian Citizenship or have been granted permanent residency status or be a New Zealand passport holder who has been resident in Australia for six months or more.

2. Applicant’s residency status and rights to work

Australian visa

Every worker from overseas must have a valid Australian visa with work rights.

Some visas prevent or restrict the right of a person to work in Australia. ‘Work’ means any activity that a person is normally paid to do which means that even unpaid workers can be considered to be working if the work would normally be paid.

The following documents prove that the applicant is entitled to work in Australia. It is very important that one of them be sighted:

  • an Australian birth certificate;
  • a Certificate of Australian Citizenship;
  • an Australian or New Zealand passport;
  • a valid current working visa; or
  • official evidence of resident status.

If the applicant has produced a document that does not include a photograph, you should ask to see other evidence of identity that does contain a photo, such as a driver’s licence.

If the applicant has produced a foreign passport to prove his or her identity, first check the personal details page of the passport, including the photograph. Then check the page containing the Australian visa. The visa will identify the passport holder’s status, the conditions attached to the visa, any work restrictions that may apply, and the length of time they are permitted to stay in Australia.

To avoid allegations of discrimination employers should check the work entitlements of all new employees. If job applicants refuse to cooperate they should not be employed.

Employing an illegal worker is a criminal offence

Employers are responsible for checking all workers’ rights to work in Australia. It is an offence under the Migration Act 1958 to knowingly or recklessly allow workers to work and there are severe penalties.

Employers who discover an employee is an illegal worker must terminate the employment immediately.

How to check work rights

The Visa Entitlement Verification Online (VEVO) service is the safest, easiest and quickest way to check the work entitlements of all new workers from overseas.

VEVO is a free, internet-based system that allows you to check the work entitlements of a visa holder online. The service gives you current visa information and is available 24 hours a day, seven days a week.

More information on VEVO can be found at the Department of Immigration and Citizenship website.

Employers without internet access can use the toll free Visa Entitlement Verification Faxback Service: 1800 505 550.

Employers who do not have immediate access to fax or email have a period of 48 hours in which to conduct any checks.

If employers check work rights within 48 hours of the employee starting work they will not be prosecuted even if the employee turns out to be an illegal worker.

Employers who employ temporary visa holders should check the validity of the visa every 3 months.

Special rules for working holiday makers

Working holiday makers can be employed for a maximum of 6 months with one employer during their 12-month stay in Australia.

Working holiday visa holders who performed ‘specified work’, in an eligible regional Australian area for a minimum of three months (88 days) while on their first working holiday visa may be eligible for a second working holiday visa.

‘Specified work’ includes (among other things) general maintenance crop work, harvesting and/or packing fruit and vegetable crops and immediate processing of animal products. 

Holders of a second working holiday visa can return to work for a further six months for the same employer who employed them on their first working holiday visa.


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