Pre Hire Agreement Template for Australia

A Pre Hire Agreement is a specialised employment document that creates a formal framework between you and a potential employee before their actual employment begins. This agreement serves as a bridge between the job offer and employment commencement, providing legal protection and clarity for both parties during the pre-employment period while ensuring compliance with Australian employment legislation.

When do you need this document?

You need a Pre Hire Agreement when there's a significant time gap between offering a position and the employee's start date, particularly for senior executive roles or specialised positions requiring extensive background checks. This document is essential when the candidate needs to relocate, obtain security clearances, or complete professional certifications before employment can commence. It's also valuable when you're hiring international candidates who require visa sponsorship, as the immigration process can take several months. Additionally, you should use this agreement when dealing with employees who have restrictive covenants with current employers, ensuring proper notice periods are observed while protecting your interests during the waiting period.

Key legal considerations

Your Pre Hire Agreement must clearly distinguish itself from an employment contract to avoid creating premature employment obligations under the Fair Work Act 2009. Include comprehensive confidentiality clauses to protect sensitive business information shared during the pre-employment phase, and ensure intellectual property provisions cover any ideas or innovations developed during this period. The agreement should specify pre-employment conditions such as background checks, medical examinations, or reference verification, while ensuring these requirements comply with privacy laws and anti-discrimination legislation. You must include termination clauses that allow either party to withdraw without penalty before employment commences, and clearly state that the agreement doesn't guarantee employment will proceed.

Legal requirements in Australia

Under Australian law, your Pre Hire Agreement must comply with the Privacy Act 1988 when collecting and storing candidate information during background checks and pre-employment screening. Ensure all pre-employment conditions align with anti-discrimination legislation including the Age Discrimination Act 2004, Disability Discrimination Act 1992, Racial Discrimination Act 1975, and Sex Discrimination Act 1984. The Fair Work Act 2009 governs representations about employment conditions, so avoid making binding commitments about specific terms and conditions in your pre-hire documentation. If you're sponsoring an international employee, include provisions addressing visa requirements and compliance with Department of Home Affairs regulations. Your agreement should also reference applicable state-based workers' compensation and workplace health and safety obligations that may apply during any pre-employment activities or site visits.