Police Checks for Employment in Australia: What are Employee Rights?
In Australia, many organisations depend on Police Checks to make hiring more efficient and foolproof. If you are looking for a job in Australia, an accredited body will ask for your consent when you apply for a National Criminal History Check. Though such checks are not conducted by every organisation, checks are on the rise every year.
There can be several circumstances under which an employer may ask you to obtain a Police Check. Especially so, if there is a legal requirement to prevent employing someone with a criminal record.
For example, if you are applying to work in the healthcare sector, particularly in aged or disabled care.
An employer may ask employees to disclose their criminal records if it is relevant to the inherent requirements of the job profile that they have applied for. Otherwise, it may be construed as discrimination. If an employer rejects your job application based on discrimination, you can claim your rights.
What is Discrimination?
When the employer poses irrelevant questions about the employee’s criminal records and finally decides to reject the job offer based on that, it may be termed as discrimination.
It may also be discrimination if your employer asks you to disclose your criminal record, but doing so is not relevant to the inherent requirements of the job.
What is an Unrelated Crime?
Let’s consider a scenario - you have applied for a nursing job. The employer decides to reject your offer letter because you have some traffic-related offences.
This is an instance of an employer being prejudiced towards an employee over an unrelated crime.
Traffic-related offences would have been deemed relevant if the job you had applied for had to do with making courier deliveries, or on-demand public transport.
Having a criminal record doesn’t necessarily mean everything is over!
Many believe that a person with the criminal history needs to be protected from discrimination. There are two arguments to this effect.
Firstly, research shows that employment reduces the probability of re-offense.
Secondly, many believe that offenders deserve a second chance. Some crimes may have been committed when the offenders were young and immature.
Given that they have already been punished under relevant laws, potential employment offers them a chance to reform.
Do you know that laws exist to prevent this discrimination?
In this article, we will briefly highlight the laws and the related complexities that may arise in the quest to find a balance between the employee/candidate and the employer.
Human Rights and Equal Opportunity Commission Act (HREOCA)
A person can appeal to HREOC at the federal level under the Human Right and Equal Opportunity Commission Act. The Human Rights Commission has the right to investigate and then try to come to conciliation between the employer and complainant. However, if it can’t be conciliated, then the commission can only send the reports to the Attorney general for tabling it to the Federal Parliament.
Complaint against criminal records is different than other grounds like disability, sex, race and age discrimination in employment.
So, what measures can you take if you face such discrimination?
Have you faced any discrimination in a job over your criminal records? You can make a complaint here.
State-wise Discrimination Laws
At the state level as well, there is some legal protection. In Tasmania and NT, it is against the law to discriminate a candidate from employment based on irrelevant criminal offences. NSW, VIC, QLD, WA, SA, ACT do not outlaw criminal records discrimination on employment.
Spent Conviction Law
Spent conviction law also helps to prevent discrimination in employment.
The law states that if a person (adult) committed a crime ten years ago, then it will automatically be considered spent. In the case of juveniles, crimes committed five years ago are taken as spent.
What does this mean? It means that candidates may not be required to disclose criminal records in front of the employer.
Most of the state and territory governments except for SA and Victoria follow the law along with the federal government.
However, the rules differ considerably, which makes it quite confusing, and there are exemptions. The law does not come in effect for Working with Children Check or, serious crimes like sexual assaults and related offences.
Other Existing Laws
The Privacy law and Industrial law also help prevent discrimination during employment to some extent.
The limitations
Over the years, the Human Rights Commission has observed a few limitations while bridging the gap of conciliation between a complaint and an employer. Some of their observations are as follows:
? Many applicants do not disclose their criminal records in fear of getting discriminated against. The employers often came to know about it later through a Criminal History Check. The applicant may get rejected both on dishonesty and criminal offence grounds.
Useful Tips: The chances of not disclosing criminal records are pretty high. So, the best way to reveal the information is through a Police Check. KONCHECK provides Police Check solutions for business organisations.
? The confusion on spent conviction laws often occurs. Sometimes the candidate has the misconception that their criminal records are spent; but, it turns out that they are unaware of the exceptions of the law for that particular job.
In some cases, the ex-offenders do not want to accept that the offence is relevant to the job profile. Thus, they make the job difficult for the commission to conciliate.