Do You Have to Advertise a Job Before Hiring?

A role opens up in your business.

You already have someone in mind. Maybe it’s a reliable team member who’s ready to step up. Maybe it’s someone you’ve worked with before, or a referral you trust.

So you move quickly and you offer them the job.

Then, somewhere in the background, the question sits there:“Should I have advertised this job before hiring?”

Many business owners assume there must be a rule around it. Something that says you need to put the role out publicly, give everyone a chance, and follow a formal process.

The reality is a bit more layered than that.

Why This Matters More Than You Think

From a legal standpoint, this isn’t usually where businesses get into trouble.

But from a practical standpoint, this is often where issues start.

How you fill a role doesn’t just impact that one decision. It affects:

• how your team sees fairness in the business

• whether people feel they have opportunities

• how confident you are if your decision is questioned

In some cases, it can also create exposure around discrimination or inconsistent treatment.

None of this tends to show up immediately. It usually surfaces later, when someone feels overlooked, when a decision is challenged, or when you’re trying to justify why one person was chosen over another.

That’s why it’s worth understanding properly, even if the answer seems straightforward at first.

Does The Law Actually Require You To Advertise A Job Before Hiring?

In most cases, Australian employment law doesn't require you to advertise a job before filling it.

There is nothing in the Fair Work Act, the National Employment Standards, or most modern awards that says a role must be publicly advertised.

That means you can:

• promote someone internally

• hire through a referral

• approach someone directly

• re-engage a previous employee

For small and medium businesses, this flexibility is important. You need to be able to make practical decisions without being tied up in unnecessary process.

However, this is where it’s important not to stop at the legal answer.

Because while advertising itself isn’t required, 'the way you make the decision' still matters.

Where The Complexity Sits

The real issue isn’t whether you advertised the role.

It’s whether your decision is:

• fair

• based on the requirements of the role

• able to be explained if someone questions it

That applies regardless of how informal or quick the process is.

For example, if you offer a role to someone you know because they’re 'a good fit,' that might feel like a reasonable business decision.

But if that’s not clearly linked to their skills, experience, or ability to do the job, it becomes harder to stand behind, especially if someone else raises a concern.

This is where informal hiring decisions can unintentionally create risk.

Situations Where Advertising Becomes More Relevant

While there’s no general legal requirement, there are situations where advertising becomes more important, and in some cases, necessary.

One of the most common is where your business has its own recruitment policy or is covered by an enterprise agreement. If those documents say roles should be advertised, then you’re expected to follow that process. Not doing so can lead to internal disputes or claims of inconsistent treatment.

Another area is visa sponsorship. If you’re bringing someone in from overseas, you’ll usually need to show that you’ve attempted to recruit locally. That involves advertising the role in line with labour market testing requirements.

There are also cases where roles are tied to government funding or public sector expectations. In those environments, transparency and open recruitment are often part of the requirement, even if you’re operating as a private business.

Beyond that, there’s the internal expectations. Even without a formal rule, employees often expect that opportunities, particularly promotions, will be visible and accessible. Ignoring that doesn’t create a legal breach, but it can create a people issue very quickly.

Where Businesses Can Tend to Get Caught Out

In practice, issues don't generally arise just because a role wasn’t advertised, but instead because the decision wasn’t clear, consistent, or visible.

A common pattern looks like this:

A role becomes available. The business owner already has someone in mind, often someone they trust or have worked with before. The role is offered directly, and the process ends there.

On the surface, it’s efficient.

But then:

• another employee realises the opportunity existed and feels overlooked

• someone believes they were equally or better qualified

• the decision appears to be based on relationships rather than merit

Even if none of that was the intention, the absence of any process creates doubt.

The same applies to internal promotions. Promoting from within is often the right decision. But when it happens without any visibility or opportunity for others to express interest, it can undermine trust in the longer term.

The Role of Anti-Discrimination Obligations

Another layer to this is compliance with anti-discrimination laws.

Regardless of whether you advertise a role, your hiring decisions mustn't be influenced by protected attributes such as age, gender, race, disability, pregnancy, or religion.

This becomes more relevant in informal processes, where decisions are made quickly and without documentation.

For example, choosing someone because they 'fit the team better' can become difficult to justify if that reasoning isn’t clearly connected to the role itself.

It doesn’t mean informal hiring is wrong. It just means you need to be able to demonstrate that your decision is grounded in legitimate business reasons.

What a Better Approach Looks Like in Practice

For most small businesses, the goal isn’t to introduce a complex recruitment process.

It’s to bring a bit more structure and clarity to decisions that are often made quickly.

That might mean taking a step back before making the offer and asking:

• what does this role actually require?

• who in the business could realistically do it?

• why is this person the best option?

In some cases, it might be as simple as letting your team know that an opportunity exists and giving them a chance to express interest.

This doesn’t need to be formal or time-consuming. Even a short internal conversation or email can shift the perception from 'closed decision' to 'fair process.'

It also gives you a stronger position if your decision is ever questioned, because you can clearly explain how it was made.

A Practical Sense-Check

If you’re about to fill a role without advertising it, it’s worth just pausing for a moment and sense-checking the decision.

• Would you feel comfortable explaining to your team why this person was chosen?

• Is the decision clearly linked to the requirements of the role?

• Have you at least considered whether someone internally could step into the position?

• Are you following any processes or expectations that apply within your business?

You don’t need perfect answers to all of these. But if something feels like it doesn’t sit quite right, it’s usually a sign to slow down and add a bit more structure.

Final Thoughts

You're not legally required to advertise most job positions in Australia.

But focusing only on that point misses the bigger picture.

Recruitment decisions don’t exist in isolation. They shape how your business operates, how your team feels, and how confident you are in your decisions.

In our experience, the businesses that avoid issues aren’t the ones with the most complex processes. They’re the ones with clear, consistent, and fair approaches to how decisions are made.

That doesn’t mean advertising every role. It means being deliberate about how and why you choose the person you do.

See what we can do for you, and the HR Support Options available to your business. Let’s make managing HR the least of your worries. 

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Need help? Contact us today - sandra@hrconsultingtas.com.au or 0408 408 225  

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