PRE-EMPLOYMENT SCREENING CRIMINAL HISTORY CHECKS Identify inherent requirements of the job If a potential employer is required to perform criminal history checks on their employees under legislation, they must follow the guidelines of that legislation. If the organisation is not required to perform criminal history checks, they must first determine the inherent requirements of each position that they would like to perform criminal history checks for. Some key factors that an organisation will consider when determining the inherent requirements of a job are: The key tasks the employee will be performing The circumstance in which the employee will be carrying out key tasks Organisational requirements of the job Considerations could include: If a criminal record is a barrier to a job where obtaining a license or registration is required. If the job involves one-on-one contact with children or vulnerable individuals. If the job involves any direct responsibility for finance or significant assets. It can be an inherent requirement of a job that an employee be trustworthy and of good character. These are common requirements in public sector employment, industries with specific regulation such as racing or gaming, and in the licensing and registration of specific occupations such as nursing. However, this should be decided on a role by role and case by case basis. An employer should never assume that a criminal record automatically means a person is lacking these characteristics. Communicate the inherent requirements of the job Once an organisation has determined the inherent requirements of a role, they need to include them in any selection criteria and job information for job applicants. They must be clear about which criteria are essential as opposed to desirable and make sure that any essential elements are set out clearly for job applicants. To allow for a transparent process and avoid any misunderstandings, employers may wish to specify that: The preferred applicant will be asked to consent to a criminal history check People with criminal records are not automatically barred from applying for the job (unless there is a requirement under the law to do so) Each application will be considered on its merits The applicant can contact the potential employer to find out information By doing the above, a company is helping applicants decide whether or not to apply for the position. Obtain consent For most jobs, a company will only request short-listed applicants complete a criminal history check. This minimises: Excessive and time-consuming administration involved with collecting consent and ordering multiple checks The expense of ordering multiple checks. The risk of infringing on privacy when information is collected but not required It is mandatory that an organisation obtains consent from you before conducting a criminal history check in order to comply with Australian Privacy legislation. Australia implemented changes to privacy laws in March 2014 which require an individual about whom information is being collected to be informed of certain things, including the fact that the information is being collected and who is collecting the information. Potential employers should warn you that your employment is dependent on an assessment of the results of your criminal record check. This should be clearly stated on the job application form and explained carefully in the interview. The organisation’s criminal history check provider should have a consent form incorporated into their process to ensure any applicants have signed their consent to the check. Order the criminal history check Once you have given consent for a criminal history check to be performed, your potential employer will order a criminal history check through their ACIC accredited provider. The provider will lodge the application form and satisfy your identity by sighting four identity documents. Your details will be submitted to the National Police checking Service for processing. This personal information is checked against a central index of names to determine whether there is a match. If there is a match, whether there is any criminal history information that can be released will be checked. It is up to the employer who pays for the criminal history check, however it could be considered best practice that the employer pays to ensure authenticity and consistency. Wait for results Ideally, a company shouldn’t make a final job offer before the results of a criminal history check are returned. If a potential employee begins employment and training, and a criminal record later reveals a relevant conviction, it can have a serious impact on employees in addition to the company wasting resources. Depending on how complex a criminal history check is, it may sometimes take a few days, or even weeks to return. If this happens, it may be because the application has been flagged for further review if it has been matched against somebody on the database with a similar name, gender and/or date of birth. When this occurs, there is a review process that is undertaken where each of Australia’s criminal history agencies are consulted to resolve the match. If an employer offers you a position prior to the criminal record check, they should clearly inform you that your employment is conditional on the results of the criminal history check. Consider the results of a criminal history checks When a Police check is being conducted, there are two possible outcomes that will be released. These outcomes are: No Criminal Record – This result indicates that there is either no criminal history history information against the applicant, or no information that can be released. Criminal Record – This result indicates that there is criminal history history information held against the applicant that can be released. It’s important to note that if you have a criminal record, you will not be automatically barred from employment. According to the Australian Human Rights Commission Act 1986, unless inherent requirements of a job can’t be met, all persons have the right to equal opportunity. If your criminal history check is returned with a Criminal Record, there are measures that you can take to ensure equal opportunity in the workplace.
