Understanding Discrimination in the Workplace and Criminal Records

Discrimination arises when individuals face adverse treatment due to specific characteristics. Provisions addressing workplace discrimination in employment based on criminal records are entrenched within Australia’s State and Territory laws.

Understanding Federal Discrimination Legislation in Australia

The Australian Human Rights Commission Act (“AHRC Act”) serves as the cornerstone for federal discrimination legislation. It offers a broad exception to employment discrimination known as the “inherent requirements” exemption. Though the Act doesn’t explicitly define “inherent requirements,” it’s generally understood that discrimination doesn’t occur if a candidate is unsuccessful due to their inability to meet a job’s essential aspects.

Is It Permissible for Employers to Discriminate Based on Criminal Records in Australia?

No, employers cannot discriminate based solely on a job applicant or employee’s criminal record. The Australian Human Rights Commission (AHRC) Act deems it unlawful for employers to discriminate based on criminal records, unless such records are relevant to the specific job or industry. For example, a criminal history involving violence or abuse may be pertinent to roles in Aged Care or Childcare Services.

What are the Legal Implications for Employers Engaging in Discrimination Based on Criminal Records?

Employers found discriminating based on criminal records may face legal repercussions. The Australian Human Rights Commission can investigate discrimination complaints and, if upheld, may mandate compensation or corrective measures. Additionally, state and territory anti-discrimination laws may impose fines and other penalties for violations.

Can Employers Request a Criminal Record Check?

Yes, if they have the consent of the person. The information disclosed in a criminal record check varies depending on jurisdiction, purpose, requesting agency, offence types, spent conviction legislation, and required disclosure levels in relevant legislation. A spent conviction is a conviction that is 10 years from the date of the conviction, and the individual was not sentenced to imprisonment for more than 30 months, and the individual has not re-offended during the 10-year waiting period.

Spent conviction legislation allows the criminal records of offenders to be amended by removing some offences after a certain period. The idea behind spent convictions schemes is to allow former offenders to ‘wipe the slate clean’ after a certain period, depending on the offence. In Australia, a Commonwealth spending convictions scheme was introduced in 1990. Spent conviction legislation also exists in all States and Territories.

What Measures Can Employers Implement to Prevent Discrimination Based on Criminal Records?

Employers should establish clear policies on considering criminal history when making hiring decisions, rooted in job requirements and industry standards, not stereotypes. Hiring processes should be fair and transparent, refraining from inquiring about criminal history unless relevant to the job. If such inquiries are made, applicants should be given the opportunity to explain its relevance to the job.

When Might a Criminal Record Be Relevant to Employment?

To avoid discrimination, employers may refuse to employ individuals only if their criminal record renders them unable to meet the inherent job requirements. However, determining inherent job requirements and a criminal record’s impact necessitates a case-by-case assessment.

How Can Employers Determine the “Inherent Requirements” of a Job?

As each job and criminal record is unique, there’s no steadfast rule for determining “inherent requirements.” While case law lacks a simple test, several principles guide this process, including essentiality to the position, employer responsibility to identify inherent requirements, and a tight correlation between job requirements and criminal records.

What Approaches Exist for Criminal Checks for Individuals Working with Children?

All jurisdictions in Australia have made a policy decision that the protection of children is so important that the criminal records of persons working with children should be closely scrutinised.

There are different approaches in each jurisdiction to criminal record checks for people working with children. In some States, there are legislative requirements for criminal record checks and in other States, there are policy guidelines recommending such checks.

When examining a person’s criminal record for a position in which they will be working with children, one of the overriding factors is to ensure that the safety and well-being of children is protected. In this circumstance, it could be said that an “inherent requirement” of the job is that the individual can be trusted to work with children, and this may be a high threshold to meet.

However, as discussed previously, another important principle is to ensure that a person’s ability to fulfil the inherent requirements be assessed on a case-by-case basis. So, while a certain type of criminal record may weigh heavily against a person’s suitability to work with children, the inherent requirements principle still requires an assessment of a person’s individual circumstances to be weighed against the particular job being performed.

What is the Law for Persons Applying For Licence Or Registration In Certain Occupations?

There are a number of professions and trades which seek to restrict the participation of people with a criminal record or, at the very least, examine a person’s criminal record prior to their admission, registration or licensing. This can include liquor sellers and solicitors.

Where there are “good character” requirements, the case law states that the mere fact of a criminal record does not determine a person’s character and that the passage of time can heal past wrongdoing.

It is important to note, however, that just because there are rules requiring a criminal record to be examined prior to licensing, it does not mean that every person with a criminal record will, or ought to be, excluded. There still needs to be a clear connection between the individual’s criminal record and the licensing or registration requirements.

This does not necessarily prevent a licensing body from developing criteria concerning the admission of people with certain criminal records. However, licensing rules and regulations ought to ensure that there is an opportunity for individuals to state their case.

Do Employees Have To Voluntarily Disclose A Criminal Record?

There is no universal duty on a prospective employee to volunteer anything about his or her prior record, even if those facts are likely to affect the employer’s willingness to employ him or her.

In some cases, however, legislation and registration or licensing rules require disclosure. In other cases, the specific circumstances of the position may require disclosure.

Do Employees Or Job Applicants Have To Disclose Their Criminal Record When Asked – and what is the impact of making decisions about actual or prospective employees based on a criminal record?​

Once an employer has gathered information about a person’s criminal history, they will engage in a process of making decisions on the basis of that information. The kind of process used may have an impact on whether or not there is discrimination.

The procedures for reviewing and considering criminal records are likely to be very clear in the case of mandatory legislative checks. Some agencies have also developed policies that set out selection procedures for job applicants, the requirements regarding criminal record checks and the criteria used to assess the relevance of those criminal records checks.

Whether a criminal record is a relevant consideration in making a decision about a particular job is often a difficult question. An unclear process for considering the issue can make the task much more challenging. It can also increase the risk of discrimination because it reduces the likelihood that careful consideration has been put into whether a criminal record is truly relevant to the job.

When assessing the application of a person with a criminal record, questions an employer may need to address might include:

  1. Has the applicant or employee been informed about the possible relevance of a criminal record?
  2. Do we have clear procedures for making decisions about applicants with a criminal record? For example, who makes the decision and when is it made?
  3. Does the applicant or employee’s specific criminal record mean that they cannot fulfil the inherent requirements of the particular job?
  4. Has the applicant or employee been given the opportunity to explain the circumstances surrounding any criminal record?
  5. Is there an avenue for the employee to appeal the decision?


It is also important to ensure that the process is transparent and provides an individual with procedural fairness. One important issue to keep in mind is that different jobs will have different requirements, even when they are in the same industry. This means that where there are positions for which a certain criminal record may be irrelevant, a blanket policy of criminal record checks across the industry may be inappropriate and increase the risk of discrimination.

How HR Connect can help

If you require assistance with dealing with disciplinary issues concerning staff, HR Connect can help. Our HR Advisors will be able to guide you through each step of the disciplinary process and we have template documents (e.g. direction to attend a disciplinary meeting, written warning, letter of termination, etc) available as part of our subscription packages.

 

 

About HR Connect

HR Connect is one of Australia’s leading providers of HR & workplace safety advice services, designed to help small business owners make confident and compliant business decisions.

 

Disclaimer

The information provided in these knowledge base articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact HR Connect for advice. The information in this summary is correct as of August 2021.

 

This knowledge base article will change over time, as Modern Award legislation relating to this Industry or Occupation is passed by the Fair Work Commission. Originally published on 21 September 2021 and last updated on 18 February 2022.

Subscribe to our Newsletter

Free up your time to focus on more important stuff

 

Know you’re meeting your obligations as a small business owner and make confident and compliant business decisions with HR and workplace safety advice, and legal support for small businesses.
All for $250 a month.


4.9 Google Rating. Based on 191 reviews.

Exclusive National Approved HR Products for ICB Members
#1 HR Provider for Employment Hero customers

AHRI Organisational Member

Free up your time to focus on more important stuff

 

Know you’re meeting your obligations as a small business owner and make confident and compliant business decisions with HR and workplace safety advice, and legal support for small businesses.
All for $250 a month.

Exclusive National Approved HR Products for ICB Members

#1 HR Provider for Employment Hero customers
AHRI Organisational Member


4.9 Google Rating. Based on 191 reviews.