In an article by published in HCM magazine early February 2016 authored by Lawyer Trent Hancock of McDonald Murholme Law, employers that refuse to hire someone on the basis of their past criminal convictions could be violating international obligations.
Additionally, commentary published in a recent Shortlist article on the same subject by Holding Redlich Lawyers, suggested employers need to apply caution when making an employment decision about someone with a criminal history.
The bottom line is that national criminal history checks are today very much part of applicant screening, therefore the process needs to be handled with sensitivity regardless of whether the returned check result is positive or negative.
WorkPro, a specialist in workforce compliance has more than 8 years’ experience in managing police checking with hundreds of Australian and New Zealand businesses working with us daily to process many tens of thousands of checks.
We work very closely with the Federal Government body that administers criminal history information to ensure that an appropriate level of scrutiny is applied to negative outcomes, and we can support customers queries about check outcomes if or when they arise – an important part of the investigation process to mitigate discriminatory action by candidates.
WorkPro offers the following advice when managing criminal history checks:
If you are found to be discriminatory, you may be ordered to take remedial action.
Hancock cited a recent example in the case AV v DIAL–AN–ANGEL Pty Ltd [2015] AusHRC 97 in which a recommendation was made that the employer update its policies and procedures, issue an apology to the prospective employee and make a payment of $5,000 to the prospective employee.
While the general protection provisions of the Federal Fair Work Act do not protect people from discrimination on the basis of previous criminal convictions, state based laws and policies render discrimination on the basis of an irrelevant criminal record unlawful.
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