DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL
RECORD
Click here to access:
- Summary of the Criminal Record Discussion Paper
- Criminal Record Discussion Paper
- Index of Submissions Received
- Human Rights Homepage
Submission No. 44 - Australian Chamber of Commerce and Industry (ACCI)
Commerce House, 24 Brisbane
Ave , Barton ACT 2600
PO Box E14 , Kingston ACT 2604 Australia
Telephone: 61-2-6273 2311
Facsimile: 61-2-6273
3286
Email: acci@acci.asn.au
Table of Contents
- ACCI
- Criminal Records and Employability
- Rehabilitation
- Regulating Criminal Records and Employment
- HREOC Discussion Paper
- ACCI responses to questions posed in the Discussion Paper
ACCI
- The Australian Chamber of Commerce and Industry (ACCI) is Australia 's peak council of business associations.
- ACCI is Australia 's largest and most representative business organisation.
- Through our membership, ACCI represents over 350,000 businesses nationwide, including:
- Australia 's top 100 companies .
- Over 55,000 medium sized enterprises employing 20 to 100 people .
- Over 280,000 smaller enterprises employing less than 20 people.
- Businesses within the ACCI member network employ over 4 million working Australians.
- ACCI members are employer organisations in all States and Territories and all major sectors of Australian industry.
- Membership of ACCI comprises State and Territory Chambers of Commerce and national employer and industry associations. Each ACCI member is a representative body for small employers and sole traders, as well as medium and larger businesses.
- Each ACCI member organisation, through its network of businesses, identifies the policy, operational and regulatory concerns and priorities of its members and plans united action. Through this process, business policies are developed and strategies for change are implemented.
- ACCI members actively participate in developing national policy on a collective and individual basis.
- As individual business organisations in their own right, ACCI members also independently develop business policy within their own sector or jurisdiction.
- ACCI therefore represents employers who are required to make recruitment decisions in the best interests of their business, existing employees, and clients, and it represents the group in our society who is subject to and must comply with legislation concerning non-discriminatory employment practices.
Criminal Records and Employability
1. Recruitment decisions are among the most crucial that any business must make. Particularly in the modern economy, businesses often stand or fall on the strength of their human capital.
2. Recruitment always involves risk. It is impossible to predict with any great degree of certainty how an individual will perform when placed into a particular organisational role.
3. Nevertheless, organisations devise many methods, and sometimes engage outside assistance (often at considerable cost) to seek to ensure that suitable persons are recruited to particular roles, and that 'best fit' between organisation and individual is achieved.
4. There are, in particular, certain key roles in organisations that require employers to place a significant degree of trust and confidence in that employee to faithfully perform their duties. For example, certain jobs involve employees handling and managing large amounts of cash on behalf of their employer, or securing premises to ensure that they are protected against potential theft or trespass.
5. Furthermore, certain businesses have very serious issues concerning security, confidentiality and lawful conduct (e.g. in the security industry or casinos, the financial services industry, the real estate industry) which require them to ascertain whether potential employees have criminal records and generally subject them to a variety of screening processes. The range of occupations where security or employee background is an issue is expanding, in part due to changing community expectations.
6. All employers carry vicarious liability for civil and, in many cases, criminal breaches of the law by employees during the course of their employment. In other words, the employee is, at law, usually regarded as the agent of the employer, whether specifically authorised to engage in a particular conduct or not.
7. In summary, who is employed is extremely important to employers - and something that employers invest much time and energy in getting right.
8. When employers make bad recruitment decisions, and employ someone without the skills or character required to undertake a particular role, the results can be extremely damaging. For example, an employee placed in an area involving autonomy and responsibility in financial management has an opportunity to engage in theft, embezzlement, or other activities that breach criminal or civil law.
9. The effective conduct of a business, and the economic benefits that an active private sector brings to society, relies on employers having the necessary tools to be able to make informed recruitment decisions with confidence.
10. Anti-discrimination law, by its very nature, constrains the decision-making capacities of Australian employers, on policy grounds which governments have deemed necessary to provide protections to particular groups in society who may otherwise be the subject of discrimination. In some jurisdictions, this includes persons with a criminal record.
11. In many situations, an individual's criminal record will be part of the mix of considerations which will guide an employer in their decision to employ or not employ a particular individual. This includes both blue-collar and white-collar crime.
12. While it is obvious why a criminal record will be relevant in some employment situations - it is less immediately obvious in others. It may be that a criminal record is however relevant to a broad range of employment situations, particularly where an employer is seeking to make a judgement regarding the character of a potential employee.
13. All employment relationships involve the employer placing trust in the employee. Without trust, an effective relationship cannot exist. The common law has long regarded the duty of fidelity and trust to be an implied term of the contract of employment.
14. It is ACCI's submission that employers should 'be able to' take an individual's criminal record into account when making recruitment decisions, subject to certain restrictions as explained below. We emphasise 'be able to' does not mean that all employers will do so in all cases. It does mean that employers have no legal impediments in the way of doing so when they need to.
Rehabilitation
15. Finding and keeping employment and developing vocational skills can be a key component of the rehabilitation process for individuals with a criminal record.
16. In many cases, individuals with criminal records may have a lower educational and skill profile than the community generally. It is therefore important, for the purposes of effective rehabilitation and reintegration into the community, that these individuals have access to vocational training and job opportunities for the purposes of providing persons with a criminal record with income and the full range of positive life experiences that flow from work, including the socialisation that work provides.
17. Employers can play a key role in rehabilitation by providing employment opportunities to ex-prisoners and others with a criminal record where possible. This role is best facilitated by providing employers with the capacity to make decisions on whether employment is suitable based on their own best judgement and operational experience, rather than subjecting them to punitive regulation or forced engagement. At all times, it must be recognised that private sector employers are operating private businesses and that employment conflicts are private arrangements between contracting parties.
18. Additional resources and information may assist employers and other employees in making decisions about whether employment of individuals with a criminal record is suited to their business, and about the benefits of providing opportunities to people seeking to rehabilitate themselves.
19. ACCI emphasises that the cultural and attitudinal issues in the workplace are not confined to employers. The attitudes of employees are as much a relevant consideration to an employer as is the attitude of the employer him/herself. An employer has a duty to staff and structure a business so that it operates in an efficient and cohesive basis. No employer should be expected to impose into its workforce an employee whose criminal record would create difficulties in the relationships of employees with one another.
20. This may in particular assist employers who have had no previous experience in employing persons with a criminal record.
21. It is ACCI's view that HREOC and other stakeholders should focus their efforts on promotional and other practical resources to assist employers in their capacity to employee people with criminal records.
Regulating Criminal Records and Employment
22. There are two approaches to regulating criminal records and employment that operate simultaneously in Australia:
a. In most states and territories (excepting South Australia[1] and Victoria) there is legislation that prescribes that certain offences are to deemed to be 'spent' after a particular length of time (e.g. 5 or 10 years). When a conviction is 'spent' an individual is no longer required to disclose a conviction when applying for employment and the record will not be disclosed if a criminal records check is conducted. There are however exceptions in legislation for certain types of offences (e.g. sex offices) and for certain types of employment (e.g. police officers).
b. The other approach is to include criminal records as one of the categories for which discrimination is unlawful. This is the approach taken in the Anti-Discrimination Act 1998 (Tas) which prohibits discrimination on the basis of an 'irrelevant criminal record'.
23. Of these two approaches, it is ACCI's submission that spent convictions is the superior one, in a regulatory sense. The approach taken, for example, in the Tasmanian legislation, is:
a. Unnecessarily ambiguous - it introduces a new, subjective concept of 'irrelevant criminal record'[2]
b. Reactive - it is driven by complaints made after the fact;
c. Does not provide employers with guidance on when it is legitimate to inquire into an individual's criminal record, and when it is not legitimate.
24. The spent convictions system is:
a. Relatively simple;
b. Works on the basis that individuals are not required to disclose a criminal record, and employers cannot obtain information regarding an individual's criminal record;
c. Allows the community to make judgements about what amount of time is reasonable before an individual's criminal record is no longer a relevant factor in decisions such as whether they are to be employed.
25. ACCI notes that there are different approaches to spent convictions in each state and territory. Greater national harmonisation of spent convictions legislation may assist employers, particularly those operating across jurisdictions.
HREOC Discussion Paper
26. ACCI welcomes the emphasis in the Discussion Paper on educational rather than punitive approaches to the issue of criminal records and employment. Noting that the Human Rights and Equal Opportunity Act already addresses discrimination on the basis of a criminal record, it is ACCI's submission that most progress on this issue will be made by working with employers and other employees to bring about greater understanding of the issues that arise in employing individuals with a criminal record and the positive contribution that employers can make to the rehabilitation of individuals who have previously committed crimes.
27. In relation to questions for discussion, ACCI is not in a position to assist the Commission on all questions, and we have therefore taken the approach of providing information and views on those topics relevant to our role and expertise.
28. The Commission has sought the views of employers who have a track record of employing people with a criminal record. As peak body, ACCI can assist the Commission through our member network in making contact with employers who may have had experience in employing people with a criminal record.
ACCI responses to questions posed in the Discussion Paper
What impact might a criminal record have in the area of employment?
2 (a) Do you know of any employers with a successful track record of employing people with criminal records?
2(b) What practical difficulties face people with criminal records who are seeking employment?
2(c) How do people with criminal records address the difficulties they encounter in seeking employment?
2(d) What special difficulties face juveniles with criminal records?
2(e) What special difficulties face Indigenous people with criminal records?
2(f) Why might employers be reluctant to employ someone with a criminal record?
2(g) What strategies might address ongoing stereotyping of people with criminal records in the workplace?
29. As noted in the Discussion Paper, some people with criminal records may have lower levels of educational and vocational skills compared with the community generally. This may make it more difficult for people with a criminal record to compete in the labour market. Furthermore, many employers may have some reticence to employ someone with a criminal record, and, having considered their business circumstance, may consider that employing a person with a criminal record constitutes an unacceptable level of risk.
30. Properly addressing this issue therefore has two components:
a. Providing greater vocational skills to people with a criminal record, and, in particular, providing employability skills and training to those people with a criminal record who wish to be assisted in this manner. ACCI understands that some programmes of this kind exist, and there may be scope to look at extension and further resourcing of such programmes by State and Territory governments.
b. Providing additional resources and information to employers who are interested in employing ex-offenders. This could include an explanation of the issues involved, tools to assist employers in assessing the suitability of an ex-offender for a particular position, and case studies of successful experiences. The legal framework surrounding the employment of ex-offenders could also be explained (e.g. the spent convictions system).
31. In addition, promotional literature could be developed that draws on the experience of employers who have a successful track record of employing people with a criminal record. Employers could benefit from a greater understanding of these positive experiences.
Questions for discussion - What do discrimination laws say about taking a person's criminal record into account in employment?
3(a) Are there currently sufficient legal protections against discrimination in employment on the basis of criminal record?
3(b) If there needs to be additional protection against discrimination in employment on the basis of criminal record, what form should it take and what elements should be included?
3(c) What remedies should be available for people who have experienced discrimination on the basis of criminal record? 3(d) What difficulties might face a person with a criminal record who wishes to use the current anti-discrimination legislation? What can be done to overcome these difficulties?
32. As stated in our introduction, ACCI believes that the spent convictions system represents a superior approach to the regulation of employment of people with criminal records rather than the inclusion of criminal records in anti-discrimination legislation.
33. We note that discrimination on the basis of a criminal record is unlawful under the HREOC Act. HREOC's focus should switch to an educational and promotional approach, rather than one guided by the paradigm of 'discrimination' and prohibitions.
34. It is also ACCI's view that, with the exception of the constraints imposed by the spent convictions system, it should be generally open to employers to take a person's criminal record into account in determining their suitability for employment. This is essential information that is directly relevant to employment and suitability decisions.
Questions for discussion - What does a criminal record include?
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?
4(b) When requesting a criminal record check, do employers seek information about specific offences or do they request a general review?
4(c) What difficulties, if any, have employers and employees encountered in obtaining criminal record checks?
4(d) Have there been instances where a criminal record check has been completed without an individual's consent?
35. It is ACCI's understanding that the level of understanding regarding what an employer's rights are, in respect of conducting a criminal record check, varies according to type and size of business.
36. Some employers, for whom the issue of a criminal background is a regular, pressing and core employment consideration, have standardised approaches to recruitment which include automatic checks for criminal records and a standard approach to what action is taken according to what such a check uncovers. Such employers have generally developed expertise in conducting relevant checks and are aware of the operation of the spent convictions system.
37. Other businesses, and in particular small businesses, may be far less aware of how to conduct a check for criminal records, and may only undertake such investigations in special cases when required.
38. Employers would be assisted by additional information and assistance regarding how to undertake a criminal record check.
39. In response to 4(d), ACCI members advise that the general practice of employees is that criminal record checks are preceded by an employee giving consent.
Consider the following questions in your particular field of employment:
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?
5(g) What information should be available to actual or prospective employees regarding the inherent requirements of the job?
5(h) What mechanisms are available to appeal disqualification from employment, licensing or registration?
5(i) What examples do you have of possible discrimination on the basis of criminal record?
5(j) Do licensing or registration rules allow for individual assessment of a person's criminal record and its relevance to the inherent requirements of a particular job within the industry?
40. The assessment of a particular position's inherent requirements in the context of criminal records is a difficult judgement, and one that contains an irreducible element of subjectivity and complexity: it is a judgement that must properly rest with an employer in this instance.
41. The relationship of a criminal record to employment suitability is, we submit, a far more difficult question than some of the other, more central categories for which discrimination is unlawful (e.g. race or sex).
42. It is our view therefore, as explained in the introduction, that the approach taken in some jurisdictions of including criminal records in the categories for which discrimination is unlawful is a flawed one.
43. Particular types of employment demand a higher level of scrutiny, in connection with a criminal history, than that required for employment generally. This is recognised in spent convictions legislation and in other types of state legislation (e.g. legislation that governs working with children in schools, or casino and gaming legislation).
44. This fact does not however justify a legal framework that compels an employer to justify to a regulator these decisions to check, or rely upon, a criminal record for legitimate employment purposes.
45. It is appropriate that wider disclosure of records is permitted in particular circumstances. The community expects a certain level of protection against unacceptable risks in relation particular types of employment (see above) and that employers are given the resources to protect the community in such situations.
Questions for discussion
Questions for employers:
6(b) Do you expect employees to voluntarily disclose their criminal record?
6(c) How do you respond if an employee refuses to answer questions about their criminal record?
6(d) How do you respond if an employee is dishonest about their criminal record?
6(e) How should employers make sure that they comply with the requirements of spent conviction legislation? Questions for applicants/employees
6(f) Do you have any examples of a person voluntarily disclosing their criminal record and then experiencing discrimination?
6(g) Do you have any examples of instances where an employee has been dishonest about their criminal record? What were the reasons? What was the result?
6(h) Do you have any examples of an employee refusing to answer questions about their criminal record?
46. As a general principle of sound human resource practice, a criminal record check should only proceed with the consent of the individual concerned (except for certain special circumstances). Consent should not however be a black and white legal requirement.
47. Refusal to permit an employer to undertake a record check should constitute a prima facie lawful basis for an applicant to be denied a particular job, or terminated from a particular job (if an employee has previously not responded truthfully to such questions).
48. ACCI has received information from our member organisations that employers sometimes face difficulties where employees do not truthfully answers questions about a possible criminal record, and it is later revealed that a record does exist.
49. There is no acceptable reason for dishonesty at the time of engagement. Employment relationships require a high degree of mutual trust and confidence.
50. Spent convictions legislation works best in this area. Employers are simply not provided with information on convictions (once spent) by the relevant authorities and employees are under no obligation to reveal spent convictions.
51. Further resources could be made available to employers which provide information on how the spent convictions system operates.
Questions for discussion
Questions for employers
7(a) Do you have any examples of clear procedures for examining an applicant's criminal record? Are there currently guidelines in your organisation or industry?
7(b) What would further assist you in understanding your responsibilities and in what form would the information be most useful?
7(c) Do you have any examples of confusion about whether a criminal record is relevant to the job?
7(d) What review or appeal processes should there be for decisions made on the basis of criminal record?
7(e) Does your organisation have any training materials that address these issues? Questions for applicants/employees
7(f) What information should you have about how your criminal record might be considered by an employer?
7(g) Do you have any examples where employers have not had clear or fair procedures for considering an applicant's criminal record?
7(h) What opportunities should be given to an applicant to explain their criminal record?
7(i) Do you have any examples where dishonesty has resulted in dismissal even when the criminal record is not relevant to the job?
52. Employers take a variety of approaches to their recruitment activities, based on their business philosophy, size and industry. Some employers have very formal approaches and have established systems in place. Others, and in particular small business, may take a more informal approach. It is an issue for a particular business, and that business alone, what human resource and recruitment strategy they wish to adopt (consistent with it being lawful).
53. The development of specific educational packages, and the provision of additional information to employers, may assist employers in making appropriate and informed decisions concerning the employment of people with criminal records.
54. Materials, of the kind mentioned above, would assist employers in considering the suitability of people with criminal records for particular types of employment.
1. It is ACCI's understanding that the Soutth Australian
police department nevertheless operates a kind of spent convictions system
as a matter of internal policy and that a similar policy applies in Victoria
.
2. This is defined in s.3 of the Act as being where 'the circumstances
relating to the offence for which the person was convicted are not directly
relevant to the situation in which the discrimination arises' (which,
once again, is a relatively subjective concept, involving a judgement
being made on whether the offence is or is not relevant to the situation).