When hiring a new employee for your business, you must consider the onboarding process. There are steps you should take to ensure you are properly hiring and providing entitlements for your employees, including confirming the type of role, the legality of the role, tax and super obligations, wage entitlements and correct documentation. This article also sets out the general obligations you should be aware of as an employer in NSW.

What Role Type Are You Offering?

Before you offer someone employment with your company, you must know what role and position the employee will undertake. Typically, employee roles are divided into these categories:

  • Full-time;
  • Part-time;
  • Casual; and
  • Fixed Term/Permanent.

If you are unsure, you should consider the following factors:

  • You should consider the number of hours your employee will work. For example, will your employee work an average of 38 hours per week? If they do, then they will be a full-time employee.
  • You should also consider the term the employee will be working for you. Would you like the term to be fixed or ongoing? A fixed term employee is hired to work for a set period only, for example, six months, one year, etc. Upon the completion of this term, the agreement will terminate, although the employer can renew it upone agreement with the employee. A permanent employment agreement will be ongoing until terminated under the employment agreement or the notice period provided for under the National Employment Standards (NES).
  • If your employee works less than typical full-time hours but works typical hours and days, then they will likely be a part-time employee rather than a casual employee. Part-time employees receive the same entitlements as full-time employees; however, these are provided on a pro-rata basis.
  • Casual employees have the least security of other employees as they have no guarantee of ongoing work, and they do not receive all the entitlements of other employees such as paid leave.

Does an Award Apply?

  • Awards set out the minimum entitlements and conditions the employee is entitled to, for example, expenses, wages and notice periods. In some circumstances, multiple Awards may apply to your employee, for example, an industry and a position relevant Award may apply. If there is a conflict between Awards, the relevant Award should specify the conflict in itself.
  • See the full list of Awards here.
  • If your employees are not covered by an Award, then the NES will apply. These standards are set out in the Fair Work Act 2009 (Cth) and are the minimum entitlements that all employees are entitled to www.fairwork.gov.au/Employee-entitlements/national- employment-standards.

Can the Employee Legally Work in Australia?

You may like to request documentation from your employee as to whether they have the required visa and documents to work in Australia.

Does the Employee Have the Correct Qualifications or Permits Required for the Job?

  • Depending on the role that your employee is undertaking there may be some qualifications and permits they may need, for example, training for the role, certification to provide professional services, police checks and working with children checks.
  • You should consult your specific industry body if you are unsure as to which licencing and professional requirements you need to comply with.

Choose the Correct Wages and Entitlements for the Role:

  • If it is a Non-Award role, and no enterprise or registered agreement applies, then the NES will apply, and you must meet the minimum wage.
  • If it is an Award role, confirm the applicable Award and Category/Level to determine pay rates and entitlements.

Confirm Tax and Superannuation Obligations:

For specific requirements for withholding tax and superannuation for your employee refer to the ATO website.

Employment Agreement and Staff Handbook

Provide and have the employee sign an Employment Agreement and Staff Handbook and request any additional documents as set out in the Employment Agreement.

Once you have drafted the appropriate agreement, the employee should read and sign the agreement, and you should both keep a copy for your records. For your employees, along with your Employment Agreement you will also need to provide your employee with the following:

Request Employee Details Including:

  • Date of Birth
  • Address
  • Tax File Number
  • Bank Account Number and BSB
  • Superannuation details (name of fund and member number)
  • Emergency contact (full name and number)

Training and Induction

Undertake any training and induction with the employee required for the role and provide the appropriate equipment.

You should consult your industry and specific workplace health and safety guidelines to ensure you are properly training your employees concerning the equipment they are using.

General Obligations of Employers Located in NSW:

1. Workers Compensation Requirements:

Refer to the State Insurance Regulatory Authority to confirm the coverage you require.

2. Work Health and Safety Requirements:

These are set out in the Work Health and Safety Act 2011 (Cth) and regulations. For more details, as to your specific obligations go to:

3. Anti-Discrimination Requirements:

You are required to comply with anti-discrimination legislation. Refer to the Anti-Discrimination Board of NSW for more details.

4. Employment Records and Compliance:

You are required under legislation to keep employee records for seven years. You must comply with the Fair Work Act 2009 (Cth) and any relevant state and federal legislation in your dealings with employees, including any relevant Awards or agreements.

Key Takeaways

Onboarding new employees can be an exciting time, and is an important process to undertake to ensure you meet your obligations as an employer. Your internal company policies must be in place to ensure that you take each step of the onboarding process correctly. Your HR or operations team should have in place an employee checklist to make sure that you meet your obligations. If you have any questions about onboarding employees, contact LegalVision. Our employment lawyers would be happy to assist.

Edith Moss

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