DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL
RECORD
Click here to access:
Submission No. 88 -
National Australia Bank
Questions for discussion - 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?
An increasing number of employers have introduced criminal record checking
as part of a probity checking process in recruitment. The key drivers
for this are cost of internal fraud and legislation such as the Financial
Services Reform Act (FSRA) 2001. A requirement of FSRA is that all appointments
to Financial Planner or Responsible Officer roles require a satisfactory
probity check result prior to commencement of employment.
The difficulty
faced by people with criminal records is that they are now required
to disclose their criminal record to a potential employer. Should the
candidate not disclose their criminal record and this is subsequently
reported as part of the criminal record check, the candidate will not
likely be successful in gaining employment.
2(c) How do people with criminal records address the difficulties
they encounter in seeking employment?
It is vital that a candidate disclose their criminal record. Should
a criminal record be reported as part of the criminal record check, the
candidate will not be successful in gaining employment. The employment
of candidates who disclose a criminal record, prior to the record being
reported by the criminal record check, will be considered on a case-by-case
basis by the Employee Relations department.
2(d) What special difficulties face juveniles with criminal records?
2(e) What special difficulties face Indigenous people with criminal
records? Indigenous people have a higher rate of criminal record
per capita than non-indigenous people.
2(f) Why might employers be reluctant to employ someone with a criminal
record?
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?
We do not believe it is widely known to the general public what is and
isn't included in criminal record checks.
4(b) When requesting a criminal record check, do employers seek
information about specific offences or do they request a general review?
The National requests a general criminal record check from the Australian
Federal Police via a third party probity supplier - Australian Background.
4(c) What difficulties, if any, have employers and employees encountered
in obtaining criminal record checks?
Delays in criminal record checking at the Australian Federal Police
have on occasion adversely impacted the turnaround on a criminal record
check.
4(d) Have there been instances where a criminal record check has
been completed without an individual's consent?
No - not to my knowledge.
Questions for discussion - When might a criminal record be relevant
to employment?
5(a) In what occupations might a criminal record be a relevant ground
for excluding a person from employment, licensing or registration?
For these specific occupations what criminal record would be relevant
and why?
A criminal record may be a relevant ground for excluding a person from
employment within the financial services industry. People working within
financial services may have access to sensitive, private information
as well as large amounts of money. This requires that employees are individuals
of high integrity and good character. In particular, persons with a history
of fraud, theft, and related offences, offences against justice procedures,
government security and government operations, robbery, extortion and
related offences would not usually have the inherent characteristics
required for working in the banking industry.
5(b) In what occupations would a criminal record never, or almost
never, be relevant?
5(c) Are there any examples where criminal record checks are conducted
unreasonably (ie go beyond the inherent requirements)?
5(d) Are there examples of licensing, admission or registration
rules that go beyond the inherent requirements of the position?
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?
Within the National, Role Purpose Statements (RPS) are available for
all positions. Should an applicant/employee be found to have a criminal
record, the RPS would be reviewed by Employee Relations and a determination
made as to whether or not the specific criminal record relates to their
role and/or industry.
5(g) What information should be available to actual or prospective
employees regarding the inherent requirements of the job?
We provide Role Purpose Statements (RPS) to prospective employees. This
includes the full detail of the role and therefore includes (without
necessarily identifying them as "inherent requirements") the inherent
requirements of the roles. We believe this is important information to
be provided to prospective employees and would help provide extra transparency
in the job application process.
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?
Questions for discussion
Questions for employers:
6(b) Do you expect employees to voluntarily disclose their criminal
record?
If the employee has applied for a Financial Planner or Responsible Officer
role (under FSRA legislation), yes, they will be expected to disclose
their criminal record as part of probity checking required prior to appointment
to the role.
Generally, if a record is not disclosed and the probity check finds
that a criminal record is still relevant, this information may exclude
the applicant from consideration of employment. However, the decision
to not proceed with an application will only be made after consultation
and review by Employee Relations.
6(c) How do you respond if an employee refuses to answer questions
about their criminal record?
Each case is dealt with on its merits, with the information at hand.
Employee Relations would normally be consulted. If an individual refuses
to answer a question and they are found to have had a relevant criminal
record, their situation will be reviewed in light of their criminal conviction
and the role they are applying for.
6(d) How do you respond if an employee is dishonest about their
criminal record?
If an applicant states they have no criminal record and it is subsequently
found with their probity check that they do in fact have a criminal record
(relating to the financial services sector in particular), their case
would be reviewed by Employee Relations and, assuming it is confirmed
that they were dishonest, then it is likely that they would not be employed.
If they were an employee and they were found to have been dishonest,
we would again review the case on the specific facts of the case and
if all was found to be true they would be dismissed under our Code of
Conduct - which specifically mentions dishonesty.\
6(e) How should employers make sure that they comply with the requirements
of spent conviction legislation?
Be informed of legislation in all states and territories (subscribe
to relevant updates), remain impartial, treat each case on its individual
merits; policies should be general in nature (ie deal with dishonesty
in general under a Code of Conduct or within policy) rather than be specific
to "failiure to advise employer of criminal conviction".
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?
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?
Yes. The National has outsourced probity checking (including criminal
record checking) to a third party supplier - Australian Background. Australian
Background request the Australian Federal Police to conduct the criminal
record check.
There are well-documented processes and documentation that support criminal
checking as part of probity checking.
Also there are documented Probity Check Guidelines. All cases where
there is a concern regarding the outcome of the probity check are referred
to either Employee Relations or Solutions South (a HR business unit)
for sign-off.
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?
Bankruptcy conviction for employees in Teller roles.
7(d) What review or appeal processes should there be for decisions
made on the basis of criminal record?
External bodies cover off on this.
7(e) Does your organisation have any training materials that address
these issues?
Our probity check referral process is an internal process based on our
policies.
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? |