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Employees with a criminal history: What are your obligations? – Employee Rights/ Labour Relations



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Employers have the general right to refuse to employ someone
whom they do not deem fit for a role, or suitable for their
organisation. While some may feel that an individual with a
criminal history is not suitable for their organisation, there are
some limitations on the decisions an employer can make, and
obligations regarding how those individuals are to be treated.

Spent convictions

In NSW, some convictions can become “spent”, which
means it is no longer on an individual’s criminal record.
However, convictions for which a prison sentence of more than six
months was imposed, or for sexual offences, cannot become spent and
will remain on an individual’s record.

A conviction can become spent if:

  • an individual is crime free and not in prison for ten years as
    an adult;

  • there is a finding that an offence has been proved, or that a
    person is guilty of an offence, but there is no conviction (for
    example, the offender is put on a good behaviour bond, intervention
    program, or other Court conditions);

  • there is an order of the Children’s Court dismissing a
    charge and administering a caution; or

  • the conviction is of an offence that has ceased, by operation
    of law, to be an offence.

Under the Criminal Records Act 1991 (NSW), individuals
with spent convictions are not required to disclose any information
regarding their spent conviction, and they do not need to refer to
their prior conviction as a conviction for the purposes of
character or fitness tests. Therefore, employers may not even be
aware of the conviction during the recruitment process. However, if
employers do become aware of a prior conviction that is now spent,
there are obligations regarding how that person is to be
treated.

Irrelevant criminal record

Spent convictions, and convictions that have not been spent and
still appear on an individual’s criminal record may constitute
an “irrelevant criminal record” and fall under the
definition of discrimination for the purposes of the Australian
Human Rights Commission Act
1986 (Cth) (the
“AHRC Act”) and the
Australian Human Rights Commission Regulations 2019 (Cth)
(the “AHRC Regulations”).

Both the AHRC Act and the AHRC Regulations do not define an
“irrelevant criminal record”, but it is generally
understood to mean an individual’s criminal history that does
not relate to the employment role or duties.

For example, if a role required a substantial level of integrity
and trust, then an individual’s criminal history of dishonesty
offences may be considered relevant. However, the same criminal
history would be irrelevant for a role that did not require such
integrity.

Anti-discrimination obligations

Under the AHRC Act and the AHRC Regulations, any distinction,
exclusion or preference on the ground of an irrelevant criminal
record will be considered discrimination.

The Australian Human Rights Commission (the
“AHRC”) has the power to investigate any
act or practice, including any systemic practice that may
constitute discrimination and where appropriate try to resolve a
complaint of discrimination by conciliation.

Employers need to be wary of any distinction, exclusion or
preference on the grounds of either a spent conviction or
irrelevant criminal record, during all points of an
individual’s employment. This includes the recruitment process,
decisions to promote an employee or terminate an employee’s
employment and generally regarding terms and conditions of their
employment. Employers should also ensure that individuals are not
subjected to disparaging comments by other employees regarding
their criminal history.

What should employers do?

The AHRC recommends the following procedures:

  1. employers should have a written policy and procedure regarding
    treating people with a criminal history fairly and in accordance
    with anti-discrimination laws;

  2. employers should implement training of staff regarding rights
    of employees and job applicants to be treated without
    discrimination; and

  3. employers should implement a grievance and complaints procedure
    for employees if they feel discriminated against.

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