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Human Rights: On the record: Issues for special organisations (Chapter 8)

On the record

8 Issues for special organisations

8.1 Licensing and registration organisations

There are an increasing number of professions and occupations which require licensing and registration before employment is possible. Key examples include teaching, nursing, casino workers, taxi drivers and bus drivers. Usually licensing and registration organisations apply specific legislation that requires a criminal check for each individual applicant.

The refusal of a licence or registration by an organisation on the basis of a person’s criminal record may constitute discrimination under the AHRC Act. Even though a licensing board may not be directly responsible for employment decisions, it may be involved in making a distinction which has the effect of impairing employment opportunities on the basis of criminal record.

In order to avoid discrimination under the AHRC Act, licensing and registration organisations should ensure there is an opportunity for an individual assessment of a person’s particular criminal record and the correlation between the criminal record and the inherent requirements of the job as set out in the licensing or registration regimes. This does not necessarily prevent a licensing body from developing criteria concerning the admission of people with certain criminal records. However, licensing rules and regulations ought to ensure that there is an opportunity for individuals to state their case.

Licensing body example

The Nursing and Midwifery Board of Australia is responsible for registering nursing and midwifery practitioners under a new national registration and accreditation scheme, established by the Health Practitioner Regulation National Law Act 2009.

Under this National Law, an application form for registration as a nurse requires an individual to disclose their criminal history, which includes every conviction, every plea of guilty or finding of guilt, and every charge made against a person. In addition, spent convictions legislation does not apply to these criminal history disclosure requirements. The Board may decide that a person is not suitable to hold general registration if it decides that the individual’s criminal history is relevant to the practice of the profession. However, there is no automatic disqualification from a licence because of a criminal record. Under the Nursing and Midwifery Criminal History Registration Standard, every case will be considered individually. There are ten factors that need to be considered in assessing individual cases:

  • the nature and gravity of the offence or alleged offence and its relevance to health practice
  • the period of time since the health practitioner committed, or allegedly committed, the offence
  • whether a finding of guilt or a conviction was recorded for the offence or a charge for the offence is still pending
  • the sentence imposed for the offence
  • the ages of the health practitioner and of any victim at the time the health practitioner committed, or allegedly committed, the offence
  • whether or not the conduct that constituted the offence or to which the charge relates has been decriminalised since the health practitioner committed, or allegedly committed, the offence
  • the health practitioner’s behaviour since he or she committed, or allegedly committed, the offence
  • the likelihood of future threat to a patient of the health practitioner
  • any information given by the health practitioner
  • any other matter that the Board considers relevant.[1]

Further, it may be necessary to take into account the fact that a wide variety of ‘particular jobs’ may exist within a profession. For example, a person with a security industry licence could be a personal bodyguard, a pub bouncer or a person monitoring security videos in a control room. Each of these positions may require a security licence but the inherent requirements of the particular job may be quite different. Therefore, it may be necessary for licensing rules to permit some distinction between different jobs within an industry.

As discussed in Section 4.5, although a law may provide for a licensing body to exclude an applicant who is not of ‘good character’, this may not necessarily enable a licensing body to exclude a particular person with a criminal record.

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8.2 Employment agencies

Discriminatory practices by employment agencies may give rise to discrimination under the AHRC Act.  Employment agencies should not discriminate on the basis of criminal record in their practices even if they are acting on behalf of employers. These Guidelines apply to employment agencies as well as employers.

Should an employment agency request criminal record details from a job applicant?

Whether an employment agency should request criminal record details from a job applicant or not depends on the type of service offered by the agency and its relationship with the employer.

For example, if an employment agency assists job seekers with resumes and interview techniques generally, and there is no relationship with a particular employer, there is no reason why an agency should ask a job applicant to disclose a criminal record. This question can be asked by employers themselves if they consider it necessary.

However, if the job seeker voluntarily discloses details of their criminal record to an agency and asks for assistance with preparing answers to questions about their criminal record, an agency may wish to assist the job seeker with information and guidance. An agency must still be aware of their obligations to maintain the privacy of the job seeker and not disclose any information regarding the criminal record without the consent of the job seeker.

If an employment agency has a closer relationship with employers, that is, it conducts the recruitment process on behalf of employers, the agency may request criminal record details from job applicants in appropriate circumstances. However, this should only occur where:

  • there is a specific job in question, and it has been identified that a criminal record is relevant to the inherent requirements of that job. If there is a legislative requirement that certain convictions be disclosed, for example for the purposes of working with children, then it will be relevant to the job and an agency should inform the job applicant that they must disclose their offences
  • the job applicant is fully informed of the reasons why a criminal record check might be relevant.

If a job applicant does not provide consent for a criminal record check, then an employment agency should not disqualify a job applicant from being put forward to an employer.[2] Instead, the agency could inform the employer that consent for disclosure has not been obtained. Employers can conduct their own criminal record check if they consider it relevant, having already had an opportunity to asses the merits of the job application.

Does an employment agency have a legal obligation towards an employer when a job applicant discloses a relevant criminal record?

The more extensive the employment agency’s involvement in the placement of an employee, the greater the likelihood that the agency will owe some form of duty to the employer to ensure that the selected job applicant is suitable for employment in that particular job. However, this will depend on the particular facts of each case and the precise nature of the relationship between the parties.[3] An employment agency which has knowledge of a jobseeker’s prior convictions that are relevant to the proposed employment and the circumstances of that employment has a duty of care not to refer the jobseeker for interview or to refer them only after having informed the potential employer of the jobseeker’s criminal history,  with the consent of the jobseeker.[4]

If an employment agency has involvement in the placement of an employee, an agency should always advise employers that they should make their own inquiries with respect to recommended applicants.

Can an employment agency apply for police checks with the consent of job applicants?

Employment agencies can request a national police check from Australian Police Agencies or CrimTrac. Police checks can only be conducted with the consent of the job applicant, unless mandated by legislation.

Employment agencies can only request from CrimTrac if they have become accredited with CrimTrac for this purpose. In order to be eligible for accreditation, an employment agency would need to process more than 500 requests for police checks within a three year period. 


Notes

[1] Nursing and Midwifery Board of Australia, Criminal History Registration Standard, effective from 1 July 2010. At www.nursingmidwiferyboard.gov.au/Registration-Standards.aspx (viewed 9 January 2012).

[2] See Hosking v Fraser, NT Anti-Discrimination Commission. See Section 5.1 of Guidelines.

[3] Monie v Commonwealth of Australia (2003) NSWSC 1141.

[4] Monie v Commonwealth of Australia [2003] NSWCA 230

 

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