Employment advertisements

Authored by Nicholas Ellery, Partner and Alannah Hogan, Lawyer, Corrs Chambers Westgarth, Corrs Chambers Westgarth. Updated by Erin Lynch, Partner, Grace Gunn, Senior Associate and Jessica Smith, Lawyer, Gadens and the LexisNexis Legal Writer team.

This guidance note provides detail on how to mitigate risks when advertising employment vacancies.

Readers should also refer to Guidance Note: Effective management of risks in the recruitment process.

Legal risks arising from job advertisements

Job advertisements should be neither unlawfully discriminatory nor misleading. Discriminatory or misleading advertisements may expose the employer, publisher, and possibly other parties, to prosecution or claims under federal, state or territory anti-discrimination laws or under consumer protection legislation. See Guidance Notes: A guide to discrimination, harassment and equal opportunity laws in Australia and Pre-employment representations.

Laws protecting jobseekers from discriminatory or misleading advertising apply to all forms of advertisements, including, but not limited to:

• newspaper, television and radio advertisements;
• electronic and online advertisements that appear on an employer’s website; and
• advertisements appearing on third party websites and recruitment platforms.

Job advertisements must not offer rates of pay that contravene the Fair Work Act 2009 (Cth) (FW Act) or a fair work instrument (such as a modern award). For a pieceworker who would also be legally entitled to a periodic rate of pay, the advertisement must specify the rate of pay and state that a periodic rate of pay will apply.

Discriminatory advertisements

Anti-discrimination legislation

At the federal level, specific provisions regarding advertising are contained in the:

• Age Discrimination Act 2004 (Cth) (ADA) (s 50);
• Disability Discrimination Act 1992 (Cth) (DDA) (s 44);
• Racial Discrimination Act 1975 (Cth) (RDA) (s 16); and
• Sex Discrimination Act 1984 (Cth) (SDA): s 86.