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Human Rights: On the record: What other relevant laws do employers have to comply with? (Chapter 3)

On the record

3 What other relevant laws do employers have to comply with?

3.1 State and territory anti-discrimination laws

Tasmania and the Northern Territory have laws that specifically prohibit discrimination on the basis of criminal record. The laws cover discrimination in other areas as well as employment, including the provision of goods and services, education and accommodation.

Under the Northern Territory’s Anti-Discrimination Act 1992, it is unlawful to discriminate against a person on the grounds of ‘irrelevant criminal record’.[1] The legislation also includes an exemption to discrimination where the work principally involves the care, instruction or supervision of vulnerable persons, including children.[2] It also prohibits asking another person to supply information on which unlawful discrimination could be based.[3]

 The TasmanianAnti-Discrimination Act 1998 has very similar provisions to the Northern Territory’s legislation. A person must not discriminate against another person on the basis of ‘irrelevant criminal record’ and there is a specific exemption for discrimination in relation to the education, training or care of children.[4]

In both the Northern Territory and Tasmania a variety of legal remedies are available if a finding of discrimination is made. The court can order an employer not to repeat or continue the prohibited conduct, to pay compensation or to take specific action, including re-employing a person.[5]

Persons in the Northern Territory and Tasmania may choose to make a complaint under the HREOC Act instead.

No other state or territory anti-discrimination laws provide specific protection against discrimination on the basis of criminal record. However, in Western Australia and the Australian Capital Territory, there are provisions that make discrimination on the basis of spent convictions unlawful.[6]

In other states and territories, persons who wish to complain of discrimination on the grounds of criminal record must rely on the AHRC Act only.

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3.2 Spent convictions laws

 Purpose and application of spent convictions laws

Spent convictions laws allow the criminal records of offenders to be amended after a certain period of time, usually subject to no future convictions. The idea behind spent convictions schemes is to allow people with a criminal record to ‘wipe the slate clean’ after a certain period of time. They assist people with a criminal record rehabilitate by providing them with a legally sanctioned means of ‘moving on’ with their lives and putting their past behind them.

Spent convictions schemes usually apply to certain convictions only, mostly offences with short custodial sentences or lesser penalties. The schemes exclude people sentenced for more serious crimes or for long periods of imprisonment. There are exemptions from the requirements of the law for certain categories of employment and certain offences. For example, sex and violence offences are usually required to be disclosed to the employer when the work involves working with children.

Almost all states and territories, and the Commonwealth, have statutory spent convictions schemes, although they differ considerably.[7] Victoria is the only two jurisdiction without spent convictions law, although it has an information release policy.

Employer responsibilities under spent convictions laws

There are distinct differences between the spent convictions laws in each jurisdiction and any applicable anti-discrimination laws, so employers should be aware of which laws apply to them and the main requirements of those laws.

Under spent convictions laws, employees or job applicants are not required to disclose information about their spent convictions to anyone, even if asked about it, unless there is a special exemption or requirement under another law.

Police will not release information to an employer about a spent conviction on a police check unless there is an exemption under relevant spent conviction legislation or information release policies. Generally each police jurisdiction applies the rules governing its own scheme in deciding whether to release information to police in other jurisdictions about spent convictions.

Even if an employer finds out about a spent conviction by other means, for example word-of-mouth, the employer is prohibited from taking that spent conviction into account in making an employment decision.

Because of confusion over the different laws, some job applicants and employees may either mistakenly disclose a spent conviction because they do not understand the provisions of the specific law, or fail to disclose convictions to employers because they believe their conviction to be spent. These types of misunderstandings can result in complaints of discrimination if the employer takes action to the detriment of the employee on the basis of what is revealed.

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3.3 Privacy laws

Under privacy laws, a person’s criminal record is treated as sensitive information. Additional protections are given to sensitive information under these laws. An employer should respect the privacy of job applicants and employees with criminal records.

Although exemptions from privacy laws apply to some private sector employers and to some criminal record information, it is best practice for employers to follow privacy principles as closely as possible when dealing with information relating to a person’s criminal record. Breaches of privacy in relation to criminal record can complicate relations between an employee and employer, and may lead to claims of discrimination and breaches of the Privacy Act 1988 (Cth) (the Privacy Act).

Employers may also face a potential claim under common law for breaches of privacy and wrongful disclosure of confidential information.

Who is covered by Commonwealth privacy laws?

In an employment context, the Privacy Act covers Commonwealth and ACT public sector employees and certain private sector employees.

In certain cases, individual job applicants and employees may complain of a breach of privacy to the Office of the Australian Information Commissioner who can investigate the complaint, conciliate the complaint and make recommendations in the event that the complaint cannot be resolved by conciliation. These recommendations can be enforced by the federal courts.

However, the private sector provisions generally only apply to organisations (including not-for-profit organisations) with an annual turnover of more than $3 million.  These provisions also apply to a number of organisations with an annual turnover of less than $3 million (for example, a business that is related to one with an annual turnover greater than $3 million or where a business has opted into the Privacy Act). For further information, see www.privacy.gov.au/publications/IS12_01.html.

 

Most states and territories also have privacy laws and administrative schemes which operate to the extent that they are not indirectly inconsistent with the Privacy Act.[8]These vary in content and coverage, especially in regard to private sector coverage. State and territory public sector employees are covered by these laws and schemes, where they exist. Information on these schemes can also be found on the website of the Office of the Australian Information Commissioner at www.privacy.gov.au/privacy_rights/laws/index.html#5.

Are employee records covered by the Privacy Act?

The private sector provisions of the Privacy Act, where they apply, allow for an exemption for employee records in some circumstances.[9] Criminal record information that relates directly to the employment relationship between an employer and current or former employee, and is held by the employer in an employee record, is exempt from the operation of the privacy principles.

However, this exemption does not cover future employment relationships. This means that an employer that is covered by the Privacy Act (eg. with an annual turnover of more than $3 million) must comply with the Privacy Act when it collects, uses, stores and disposes of criminal record information from job applicants. If the job applicant eventually becomes an employee, then the exemption applies. If not, then the information must be treated according to privacy principles.

More information on the employee records exemption can be found at http://www.privacy.gov.au/publications/IS12_01.html.

What are the privacy principles of the Privacy Act?

The key provisions of the Privacy Act which relate to private sector employers and employees are called the National Privacy Principles (NPPs). When handling criminal record information from job applicants and employees, private sector employers are reminded to follow the NPPs.

A summary of the National Privacy Principles obligations under the Privacy Act, relevant to criminal record information, is included in Appendix 2.

Commonwealth and ACT public sector employers and employees are required to comply with the Information Privacy Principles (IPPs), which differ slightly from the NPPS.

The NPPs and IPPs can be found at www.privacy.gov.au/publications/npps01.html and www.privacy.gov.au/publications/ipps.html. Advisory information on the application of the principles can be found at www.privacy.gov.au/materials/types/guidelines/view/6582#npp3

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3.4 Industrial relations laws

State and federal industrial laws may also protect

people with a criminal record from unfair treatment at work, specifically from

unfair dismissal.

Some employees covered by the national workplace relations system[10] can lodge a

complaint of unfair dismissal with Fair Work Australia under the Fair Work Act 2009 (Cth).

Unfair dismissals under the provisions of the Fair Work Act occur when Fair Work Australia finds that

  • the employee was dismissed and
  • the dismissal was harsh, unjust or unreasonable and
  • the dismissal was not a case of genuine redundancy
  • the dismissal was not consistent with the Small Business Fair Dismissal Code, where the employee was employed by a small business.[11]

There have been a number of decisions handed down in the national workplace relations system in circumstances where the alleged unfair dismissal was the direct result of an employer finding out about an employee’s past criminal record.

Some employees are ineligible to make an application for unfair dismissal under the Fair Work Act, including:

  • employees who have not completed a minimum of six months employment (one year in the case of a small business employee)
  • employees who earn more than $118,100 a year and who are not covered by an award or agreement.[12]

Each of the states (other than Victoria) also has unfair dismissal jurisdictions which are accessible to some employees who are not covered by the Fair Work Act. [13]

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3.5 Laws requiring employers to check criminal records

Some employers, licensing and registration bodies are legally required to screen employees and job applicants for their criminal record, and to take that record into account in employment decisions.

Example of legal requirements for criminal record checks: working with children laws

All jurisdictions in Australia have made a policy decision that the protection of children is so important that persons working with children should be closely scrutinised for a relevant criminal record.

In most states and territories there are legislative requirements to conduct pre-employment screening for child-related work. In New South Wales and South Australia, laws make it mandatory for employers in relevant fields to carry out background checks on prospective employees or volunteers.[14] In Queensland, Victoria, Western Australia and the Northern Territory, laws require individuals to apply for certification, in order to work in child-related employment.[15] In these schemes, certain convictions relating to child sex offences will generally result in automatic disqualification.

In Tasmania and Australian Capital Territory, where laws are yet to be introduced, there are policies that require police checks for certain child-related employment.[16]

Some examples of occupations and industries which are regulated in some instances to screen and restrict employment of people with criminal records at the federal and state levels include:

  • teaching
  • gaming and racing
  • nursing
  • police
  • transport operators
  • security officers
  • taxi driving
  • correctional services
  • legal profession
  • second-hand dealers and pawnbrokers.

Employers, licensing and registration bodies must meet the requirements of these laws. However, employers should be aware of the exact requirements of their legislation, as it may not be immediately clear whether a person can be excluded on the basis of criminal record.

Licensing and registration is discussed in Section 8.

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Notes

[1] Section 4.

[2] Section 37.

[3] Section 26,NT Anti-Discrimination Act 2004. It does not apply if the person proves on the balance of probabilities that the information was reasonably required for a purpose that did not involve discrimination. It also does not apply to a request that is necessary to comply with a law of the Territory or Commonwealth, order of a court, provision of an order of court or tribunal having the power to fix minimum wages and other terms of employment, a provision of an industrial agreement, an order of the Commissioner.

[4] Section 50.

[5] Anti-Discrimination Act 1992 (NT), section 88; Anti-Discrimination Act 1998 (Tas), section 89.

[6] Spent Convictions Act 1988 (WA); Equal Opportunity Act 1984 (WA); Discrimination Act 1991 (ACT), s7; Spent Convictions Act 2000 (ACT).

[7] Crimes Act 1914 (Cth); Criminal Records Act 1991 (NSW); Criminal Law (Rehabilitation of Offenders) Act 1986 (QLD); Spent Convictions Act 2000 (ACT); Criminal Records (Spent Convictions) Act 1992 (NT); Spent Convictions Act 1988 (WA); Anulled Convictions Act 2003 (TAS).

[8] State and Territory privacy laws are: Privacy and Personal Information Protection Act 1998 (NSW); Information Privacy Act 2000 (VIC); Personal Information Protection Act 2004 (Tas); Northern Territory Information Act 2002 (NT), Information Privacy Act 2009 (Qld). The South Australian Government has issued Cabinet Administrative Instruction 1/89 (the ‘Information Privacy Principles (IPPS) Instruction, and Premier and Cabinet Circular 12, as amended by Cabinet 18 May 2009, which applies to South Australian government agencies. The Commonwealth Privacy Act 1988 applies to the ACT. No privacy legislation exists in Western Australia.

[9] At the time of writing, the scope of this exemption is currently under review by the federal Department of Employment and Workplace Relations and Attorney-General’s Department.

[10]Only employees covered by the national workplace relations system are covered by the unfair dismissal laws. Other employees may have access to remedies under State legislation. The following employees are not covered by the national workplace relations laws: those employed by State government in New South Wales, Queensland, Western Australia, South Australia and Tasmania; those employed by local government in New South Wales, Queensland and South Australia; those employed by a non-constitutional corporation in Western Australia (including a sole trader, partnership or Trust); contractors; employees who resign and were not forced to do so by the conduct of their employer; those employed under a contract for a specified period of time, a specified task, or the duration of a specified season who are dismissed at the end of the period, task or season; trainees whose employment was for a specified period of time and who are dismissed at the end of the training arrangement, and employees who have been demoted but have had no significant reduction in their remuneration or duties and who remain employed by the employer who demoted them.

[11] A small business is a business that employs fewer than 15 employees.

[12] Fair Work Act 2009 (Cth), Div 2, s 382.

[13] NSW Industrial Relations Act 1996 (NSW); Industrial Relations Act 1999 (QLD); Industrial Relations Act 1984 (Tas); Fair Work Act 1994 (SA); Industrial Relations Act 1979 (WA).

[14]Child Protection (Prohibited Employment) Act 1998 (NSW); Commission for Children and Young People Act 1998 (NSW); Children’s Protection Act 1993 (SA). In SA, the requirement to conduct criminal history assessments for people working with children will be phased-in over three years from 1 January 2011 to 31 December 2013.

[15]Commission for Children and Young People and Child Guardian Act 2000 (Qld); Working With Children (Criminal Record Checking) Act 2004 (WA); Working With Children Act 2005 (VIC); Care and Protection of Children Act 2011 (NT).

[16]See Australian Institute of Family Studies, Pre-employment screening: Working With Children Checks and Police Checks, NCPC Resource Sheet, February 2011. At www.aifs.gov.au/nch/pubs/sheets/rs13/rs13.html (viewed 19 December 2011).

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