DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF CRIMINAL RECORDClick here to access:
Submission No. 86 - Department of Family and Community Services
Dear Dr Ozdowski Discrimination in Employment on the Basis of Criminal Record Discussion PaperI refer to your request for comments on the Discrimination in Employment on the Basis of Criminal Record discussion paper (the Paper). The Australian Government Department of Family and Community Services (FaCS) supports the need for further research in this area to better clarify the rights of employers, employees and other stakeholders, so as to overcome some of the practical difficulties that may arise in the employment arena. The need for a more individualised, case-by-case approach to criminal records in employment is evident in the case of Z v Director General of Transport, summarized on page 24 of the Paper, where the person described had been convicted of numerous offences including carnal knowledge, rape, larceny, kidnapping, false pretences, and several traffic offences. He was able to obtain a (restricted) public passenger licence. A more individualised approach to the issue of the relevance of criminal records in this example would suggest that people convicted of such crimes, who seek a driving position that may involve frequent contact with people where a significant power imbalance may exist (for example, children, women, disabled persons), would require assessment for positively changed attitudes. The public passenger licence example provides support for the view on page 23 of the Paper that "[t]here still needs to be a clear connection between the individual's criminal record and the licensing .requirements". A mere criminal record check in this example is not sufficient or appropriate. It would seem reasonable for a person applying for a public passenger licence to demonstrate a respectful attitude to all people with whom he or she may come into contact with in his or her course of employment. FaCS is aware that discrimination in employment may result by reason of a prospective employee having a criminal record. FaCS addresses this issue through its current recruitment and personnel practices, which are consistent with departmental values, Australian Public Service (APS) Values and the APS Code of Conduct. These policies are outlined below. Relevance of criminal recordFaCS's recruitment policies and procedures are based on merit, as required by paragraph 10(b) of the Public Service Act 1999 (Cth) and the Public Service Commissioner's Directions 1999, Chapter 4. This makes it clear that, in any recruitment exercise, the primary consideration is the applicant's relative suitability against the requirements of the job. A candidate's suitability will be determined against identified capabilities as stated in the advertised position. Voluntary disclosureThe requirement for a police records check exists as part of the engagement process for successful applicants. Authorisation for the check is sought from the potential employee and the opportunity is provided to them to disclose any criminal record. Voluntary disclosure is seen as a positive indicator of the potential employee's ability to uphold the APS Values and APS Code of Conduct. In relation to current employees, an obligation exists on the part of staff to report criminal convictions where it may impact on their ability to perform their duties. For example, a driving conviction that results in loss of licence would impact on a courier driver's ability to perform their duties. In this scenario, it would be expected that the employee disclose the loss of their 'essential qualification'. FaCS would then consider options for redeployment of that employee. ProcedureIn the event that a potential employee has a criminal record, FaCS adopts a case-by-case approach relevant to the position at hand. For example, the potential employee may be required to have a follow-up interview as part of the 'Fit and Proper Person' assessment. In any situation where non-engagement is considered due to the seriousness of the offence, a further individualised case review is undertaken. In summary, FaCS, in its recruitment decisions, is first and foremost concerned with the candidate's merits and not his or her criminal record. Merits based recruitment, where criminal records are involved, is achieved through a more individualised approach to the employment decision, in the sense of emphasis on the actual requirements of the position. This helps alleviate potential problems of discrimination in employment on the basis of criminal record. This approach is of benefit to both employers and employees, as it provides guidance and clarity around recruitment decisions and reduces the incidence of discrimination. If you have any queries or require any further assistance, the contact officer in this Department is Lisa Lu, who can be contacted on (02) 6244 6917. Yours sincerely Jeff Harmer |
|||
|
© Human Rights
and Equal Opportunity Commission. Last
updated 4 May 2005. |