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Human Rights: On the record: Policies and procedures for preventing criminal record discrimination (Chapter 9)

On the record

9 Policies and procedures for preventing criminal record discrimination

Workplace policies and procedures on employing people with a criminal record can go some way to preventing discrimination. Having a policy and procedure is about creating a workplace environment that promotes fair and lawful treatment of job applicants and employees, rather than reacting, even if appropriately, to a problem when it occurs.

Due to the nature of the work, some employers already have in place comprehensive policies and procedures on employing people with a criminal record. Other employers may feel that criminal record issues are rarely raised in the workplace, and that there is no need to undertake preventative measures.

If an employer has identified that criminal record information is not relevant to the range of jobs in the workplace, then it may not be necessary to develop a specific policy.

Nonetheless, to reach that conclusion, each employer, no matter how small, should at least carefully consider the inherent requirements of employment at the workplace and reflect on how they would treat a job applicant or employee with a criminal record if that situation arose.

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9.1 A written policy and procedure

If an employer decides that a criminal record is relevant to the positions of a workplace, a written policy can help ensure that all staff have an understanding of the organisation’s requirements and the legal obligations of the organisation towards people with a criminal record. A policy and an outline of procedure can be incorporated into other workplace policy on equal opportunity and anti-discrimination if such policy exists.

Ideally, a policy and procedure would include:

  • a statement about the employer’s commitment to treating people with a criminal record fairly and in accordance with anti-discrimination, spent conviction and privacy laws
  • a brief summary of employee and employer rights and responsibilities under these laws, or inclusion of up-to-date literature which provides this information
  • an outline of other relevant legal requirements for the workplace, such as the employer’s responsibilities under licensing and registration laws, or working with children laws
  • the procedure for assessing the inherent requirements of the position, requesting criminal record information if necessary and assessing individual job applications or employee histories
  • information on internal or external complaint or grievance procedures if someone thinks they have been unfairly treated
  • designated officers with responsibility for different elements of the procedure.

In order for a policy to gain widespread acceptance, it is vital that staff, workplace representatives and management are involved in the development of the policy.

Developing appropriate policies and procedures does not have to be overly complex or long. However, any policy should be clear, informative and available to all staff and job applicants.

Guideline 9

If criminal record information is considered relevant, an employer should have a written policy and procedure for the employment of people with a criminal record which can be incorporated into any existing equal opportunity employment policy, covering recruitment, employment and termination.

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9.2 Training of staff

Staff involved in recruiting and personnel decisions should be especially trained in the policies and procedures of the organisation and any applicable legal requirements.

However, all staff should at least receive a copy of any written policy which outlines the right of employees and job applicants to be treated without discrimination and with respect for their privacy. It may also be useful to circulate the Key Points from these Guidelines to relevant staff.

Guideline 10

If criminal record information is considered relevant, an employer should train all staff involved in recruitment and selection on the workplace policy and procedure when employing someone with a criminal record, including information on relevant anti-discrimination laws.

9.3 Grievance and complaint process

Internal grievance procedures will maximise the possibilities for resolving a complaint within an organisation. This is especially relevant for decisions regarding current employees.

Many licensing and registration organisations also have review mechanisms for decisions to reject or revoke a licence or registration, which provides extra insurance that the organisation has acted fairly and lawfully.

However, in some cases, for example small business, external complaints procedures are more appropriate. Job applicants and employees who feel that they have been discriminated against on the basis of their criminal record should be informed of their right to complain to the Commission or the relevant state and territory equal opportunity body. A person can also complain to these bodies regardless of whether there is an internal grievance procedure in place.

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