Determining the inherent requirements of a job when assessing Criminal Records

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Most companies and employers request a Criminal record result of the candidates they employ, and others even go as far as to obtain a Criminal Record on behalf of the person to avoid all forms of discrepancies. When criminal records are stated requirements in recruitments, it allows for sufficient assessment of the candidate for the role they seek.

If there was no requirement of a Nationally Coordinated Criminal History Checking, it is not hard to see a person with a history of sexual offences work as a school bus driver. Preventing situations like this is why the Australian government makes the Criminal record an essential requirement for specific roles.

However, there are shouts and issues about discriminatory practices when organisations assess candidates with criminal records. And that is one of the areas the Australian Human Rights Commission (AHRC) aims to tackle.

Can an Employer interpret the Criminal records of a candidate independently?

Under the Australian Human Rights Commission Act 1986 (the AHRC Act), employers have the right to interpret the criminal records of a person as they see fit. However, the law suggests that employers should also consider how such records will impact the role they in view.

A more straightforward way of stating this is; an employer can make distinctions among plenty of candidates if the criminal record matches the Job requirements. It is not illegal under the AHRC Act if the Employer considers the impact of such documents on their organisation over employing the candidate.

For example, a Director of an educational centre (school) must protect all the wards and children in their care. It includes being critical about the records (especially recent history) of the educators or administrators they employ. The law also encourages other employers in sensitive sectors to be intentional about the people they engage.

How does the Employer balance the requirements of the Job and the Criminal record?

Employers should know the vacant roles they want to replace and the skill required for such functions. However, the more challenging task is balancing getting qualified people who have a clean or “workable” record.

The burden of deciding what the inherent requirements of the Job are falls on the Employer, but they must be able to justify them objectively. They must devise means, plans, scopes and all other legal avenues to employ the best hands. This can also mean outsourcing this part of your activity to capable companies.

How the Employer can navigate this hurdle to employ the qualified and “legally suitable” candidate is explained here;

How to decide if a criminal record is relevant to the role

The Employer should know the functions and duties of any person employed in that role before determining the relationship with their Criminal records.

1. Understand the Role

Outlining the vacancy in an organisation or business is only the first step. The next biggest hurdle is to understand the role.

Only when the employer/person understands the role, they get the right person to fill it. Here, the Employer has to match the skills with the records. A great person for the Job should be someone with an acceptable skill matched by their records.

In the example above, a perfect candidate would be; a qualified teacher with no criminal records or any relating to child abuse, molestation or sexual offences or other related offences. Also, the Employer must learn to not only focus on the surface descriptions of the Job but different attached roles. For example, a good educator or schoolteacher should also not have a history of;

• Public disturbance,
• Unruly behaviours or,
• Offences against previous organisations

2. Assess the relationship between the role

For example, How does a sexual offence case relate to a child? A person with a recent history of sexual offence is still a potential danger to the community. If left in charge of kids (people in formative years), they can impact their psychological and emotional development, leading to abuse.

So, you see why a person with a history of sexual offence will pose many potential threats to a kid.

The AHRC encourages employers to critically assess whether certain criminal records will be impossible for the role applied. And even suggests some criteria that help them successfully make this decision when they perceive a candidate may have failed a nationally coordinated criminal history check.

• What the legislation says

Does any legislation of the jurisdiction mandate it?

Does the law forbid those convictions?

Does it go against the principle of the State?

All these questions help the Employer to be aware of the laws of the State regarding employment.

For example, the Australian legislation forbids people with a history of;

• Sexual assault offenders from getting roles that will make them work closely with the vulnerable,
• Financial misappropriation offences from getting financial roles in certain industries

Is a license or registration essential to the Job? Will the candidate need some permissions or board membership along the career path? Will the criminal record hinder them from getting such certifications?

The Employer should also consider the paths and channels the role or Job will take in the long term. If specific certifications in the future help such candidates be more productive, then the Employer must consider how that criminal record will diminish or impede their chances.

It is essential that, in the long run, you don't lose valuable personnel and experience.

• Who they work with

Working as a CPV driver will involve lots of communication, people skills, patience and character. However, if a person has a previous conviction of aggravated assault or robbery, it could be potentially precarious to the commuters.

If the Job involves frequent contact with the vulnerable, the mentally unstable, children, and so on, a person with a clean criminal record would be the best choice.

• What/where they work with

People with a conviction history in finance, money or misappropriation offences should technically have no business handling money. However, it may be harsh to refuse them roles that have nothing that involves finances.

If the criminal record only partially affects the role, the Employer should consider the degree of the offences or the court sentencing.

3. Assess the individual Criminal records against the role requirement

If the Employer is justifiably adamant that the Criminal record is relevant to the role they have listed, they should assess the applications by the various cases available.

When assessing the candidates, employers should consider; first their abilities and then other relevant criminal records relating to the role they seek. After the Employer has shortlisted the candidates they need based on the criteria, they can begin a one-on-one interview.

The Employer should only ask the shortlisted candidates to disclose details of the criminal conviction and the circumstances around it.

What employers should know before declaring specific requirements inherent to the Job

The same way jobs differ by roles, so do a candidates' criminal records which are also unique. Therefore, it will be difficult to lay down a straight rule that employers should follow when deciding which requirements are inherent. Employers have to thoroughly and judiciously determine which conditions are inherent.

However, certain exceptions to the inherent requirement exist. They are considered and collated by the International Labour Organisations, the Australian courts and the Commission.

Some of them include;

• Is the requirement essential to the position?

When considering if a requirement is inherent, it is important to factor out the incidental/peripheral responsibilities.

Justice Gaudron of the High Court has ruled that it is vital to know if the position would be the same if they dispense that requirement.

• The Employer must do more research on the role.

Broad or commonplace statements about a job's requirements are not clear enough to assess inherent needs.

The Employer also needs to go further and consider the inherent requirements of a specific employee on a case by case basis. It is a better and logical method than making inferences or other deductions from presumed characteristics of people.

• Focused and robust relationship.

The inherent requirements the Employer considers should influence the specific area or business of the Employer. Since different organisations have different scopes and operations, the Employer must make the need business styled.

There must also be a tight correlation between the inherent requirement and the particular Job. It must be more than "logical claims" between a job and the criminal record.

• It should be easily interpretable.

The inherent requirement, if stated or explained to the candidate, should be done equivocally. This way, a person cannot misrepresent or misunderstand the purpose or procedure of the requirements.

Example from the AHRC on an inherent requirement case;

In Ms Renai Christensen v Adelaide Casino Pty ltd, a Casino turned down Ms Christensen's application to work as a bar attendant because of a past conviction for stealing two bottles of alcohol from a shop when she was 15 years of age.

She complained to the Commission of discrimination based on criminal record. The Casino management argued that such history was a relevant requirement. It means that a bar staff ought to be of good character, but her offence showed she fell short of these requirements.

The Commission ruled there was not a sufficiently close connection between the requirement that the holder of the position of bar attendant is trustworthy and of good character and the rejection of her application based on her criminal record. This was partly due to her previous successful work experience as a bar attendant at other organisations (for which she provided references) and due to the length of time that had elapsed between the offence and her current job application.

Can occupational wellbeing/safety be considered part of the inherent requirement?

It can be an inherent requirement of the Job for specific roles that the person does not unintentionally indict a person in an offence. It could jeopardize the occupational health of the other workers.

An example is a person with a criminal history of financial misappropriation leading an economic-related team. It could pose an occupational hazard/corruption to other workers.

What Employers must watch out for when determining inherent requirements

When assessing the criminal history of a candidate, the Employer must be aware of certain factors and legislations.

• The Privacy Act

The organisation should disclose/handle the criminal records following the stipulations under the Privacy Act 1988. Following the privacy laws, an individual's criminal record should be treated as sensitive information. Special protections are given to sensitive information under these laws.

Even where exemptions may occur depending on the sector and the type of record, it is premium practice for employers to follow privacy principles as closely as possible when dealing with information relating to a person's criminal history.

The privacy laws cover all areas where a Criminal Record is used in Australia.

• Industrial Relations Laws

The state and federal industrial laws advocate for people with a criminal record who suffer unfair workplace treatment. The Laws also fight against unfair dismissal. The employees covered by the national workplace relations system can complain of unfair dismissal with Fair Work Australia regulated by the Fair Work Act 2009 (Cth).

• State and Territory Anti-discrimination laws

Certain States like the Northern Territory have special laws that prohibit discrimination over criminal laws. These laws govern discrimination in other areas and employment, including providing goods and services, education and accommodation.

Where the Employer thinks the Criminal records are irrelevant to the role

Suppose the Employer already states that criminal records are not needed in the inherent role the candidate seeks. In that case, it will be wrong for the Employer to consider them (criminal records) later. Yes, there are still some roles that do not actively require the Employer to check your criminal records.

An example can be recruitment for a;

• Factory worker,
• Remote worker.

How can I obtain a Nationally Coordinated Criminal History Check?

Individuals

If you are an individual you can apply for a Nationally Coordinated Criminal History Check online via Australian National Character Check's online application form. The results are dispatched via email.

Business and Enterprise Customers

Business and Enterprise customers can sign up to ANCC's business portal where they can order, manage, track and view candidates' Nationally Coordinated Criminal History Check results on their business portal. ANCC sends an invite to the applicant to complete their Nationally Coordinated Criminal History Check online and handles the application and informed consent form. Contact ANCC's business and enterprise partnerships team today to enquire about setting up a business portal for your organisation.

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