DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL
RECORD
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Submission No.
24 -
ACT & Region Chamber of Commerce and Industry
12a Thesiger Court, Deakin ACT
Phone: (02) 6283 5223
Direct Phone: (02) 6283 5238
Direct Fax: (02) 6282 5045
Mobile: 0402 312 964
marion.whalan@actchamber.com.au
www.actchamber.com.au
Mr Stephen Duffield
Director, Human Rights Unit
Human Rights and Equal Opportunity Commission
GPO Box 5218
SYDNEY NSW 2001
Dear Stephen
COMMENT ON DISCUSSION PAPER: DISCRIMINATION IN
EMPLOYMENT ON THE BASIS OF CRIMINAL RECORD
Thank you for the opportunity to comment on the discussion paper. The
ACT & Region Chamber of Commerce and Industry is a membership based,
not-for-profit organisation. As the largest and strongest Canberra based
organisation representing local business, the Chamber's membership is
diverse with involvement from a wide variety of business types and sizes
across Canberra and the surrounding region. Our comments are drawn from
the experiences of our members and staff.
2(f) Why might employers be reluctant to employ someone with a criminal
record?
Employers have responsibilities to safeguard the welfare of their employees
as well as protecting the interests of those who rely on and/or receive
services provided by their employees. In recruiting new employees the
best predictor of future performance of a job candidate is their past
performance. The probity of employees is difficult to establish and employers
rely heavily on the comments and experience of referees - preferably
who have either current or recent knowledge of the job candidate. Criminal
records that have relevance to the duties and role to be performed are
a significant indicator of the past integrity of a prospective employee.
4(a) Do employers and employees understand the categories of information
that might be included or excluded on a criminal record check provided
by police?
In our experience we would have to say no, employers do not understand
all the information that is provided on a criminal record check (CRC)
by police. Like most government agencies, the police are also guilty
of using codes, abbreviations and jargon that are not always easily understood
by the lay person.
4(b) When requesting a criminal record check, do employers seek information
about specific offences or do they request a general review?
Yes and no. Some employers, such as security firms or transport industry
members are quite specific about the nature of convictions they wish
to check for. Also our members in child care related activities are also
fairly well versed in the specifics of what they seek to check.
There is
however, significant variation in the degree of sophistication in which
employers ask for CRC's, predominantly due to their lack of understanding
as discussed in response to 4(a).
4(c) What difficulties, if any, have
employers and employees encountered in obtaining criminal record checks?
Predominantly time delays, which then frustrate the recruitment process.
4(d)
Have there been instances where a criminal record check has been completed
without an individual's consent?
We believe employer's are very open about the process of checking criminal
records. We advise our members to advertise and overtly advise prospective
employees of the requirement to agree to a CRC.
5(f) What guidance is available to help employers determine the inherent
requirements of the job in the context of employees with a criminal record?
The Chamber's Workplace Relations team assists our members to develop
selection criteria and position specifications that accurately reflect
the inherent requirements of the job. This sort of work is common in
the workers' compensation area already, so some employers have had experience
in determining the absolute essential requirements for a position.
However,
we would have to qualify our comment above with the observation that
until actually impacted, most employers do little in the way of thorough
assessment of inherent job requirements. This is one area where we
believe further information and education is required.
5(g) What information should be available to actual or prospective employees
regarding the inherent requirements of the job?
We recommended to our members that they provide the same set of information
to prospective employees that they, the employer, will use in their assessment
of the CRC.
6(b) Do you expect employees to voluntarily disclose their criminal
record?
If directly asked, either verbally or via an application form which
contains such questions - yes, employers expect job candidates to be
honest. After all, honesty and integrity are at the heart of the employer/employee
relationship.
6(c) How do you respond if an employee refuses to answer questions about
their criminal record?
We would advise employers to respond in the same way that they would
respond when a job candidate refuses to provide current or recent referees.
The reason for not answering the question on a CRC should be probed with
the job candidate and the employer's requirement to conduct a CRC reiterated.
The employer will then need to consider whether or not they will continue
to consider the job candidate who declines to consent to a CRC.
6(d) How do you respond if an employee is dishonest about their criminal
record?
As for 6(b) - this impacts on the trust and integrity of the employment
relationship. If the deception is serious ie directly related to the
job requirements, then dismissal may be appropriate. There are many factors
to be considered (refer 7(a)), so we would advise our members on a case
by case basis.
6(e) How should employers make sure that they comply with the requirements
of spent conviction legislation?
Employers would need information and education to ensure they understand
the spent conviction laws applicable in their State or Territory. As
this is one aspect of CRC's that arises less frequently, most of our
members would contact us to seek advice before dealing with a matter
involving spent convictions.
7(a) Do you have any examples of clear procedures for examining an applicant's
criminal record? Are there guidelines in your organisation or industry?
The Chamber has guidelines available to our members that outline factors
to be considered in assessing the risk to their business that may or
may not arise from an employee with a criminal record. As discussed earlier,
the nature of the offence and its direct relationship to the inherent
requirements of the job is the paramount consideration. Other factors
we advised our members to consider included:
- Frequency in the case of multiple convictions - over what time period
were the offences committed
- Pattern of offences - a pattern may suggest a degree of risk because
of persistent unacceptable behaviour
- Age - offences committed as a youth may be considered differently
from the same offences committed as an adult
- Recency - time lapsed since the conviction(s)
- Penalty - the quantum and type of penalty awarded by the Court may
be an indication of the seriousness of the conviction. Issues arise
around good behaviour bonds or probation - trouble free completion
will impact on the degree of risk likely.
- Mitigating or extenuating circumstances - we strongly advise our
members to listen to the job candidate/prospective employee and take
into account any mitigating circumstances such as provocation, peer
group pressure, cultural pressures etc.
- Decriminalization of offences - the way the offence is penalized
now may have changed from an earlier time ie decriminalization of some
drug offences.
- General character since the offence - favourable reports, trouble
free completion of suspended sentences or parole or probation
7(b) What would further assist you in understanding your responsibilities
and in what form would the information be most useful?
HREOC produces some excellent material now, for example the recent "Good
Practice, Good Business" package on eliminating discrimination. Something
similar with multiple types of media ie CD, brochures, posters etc we
believe would be welcome by the business community.
7(c) Do you have any examples of confusion about whether a criminal
record is relevant to the job?
No.
7(d) What review or appeal processes should there be for decisions made
on the basis of criminal record?
We believe the process involving HREOC now is a sound model.
7(e) Does your organisation have any training materials that address
these issues?
No, but we are planning to develop some.
For clarification on any of the comments herein, please contact the
undersigned on telephone 6283 5238.
Yours sincerely
Marion Whalan
Manager, Workplace Relations
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