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  • What laws do employers have to comply with?

    Recruitment periods/planning for any organisation is more complicated than it seems from the outside. Various organisations are left with few choices but to navigate through the various but essential State and Common laws stipulated before admitting the candidate. The numerous legislation can seem like hurdles, but a closer look and experience with managing such laws make them more comfortable.

    The laws that affect your organisation's recruitment can vary depending on the States and Territories in the jurisdiction. Some laws take effect per the candidate's State or Territory, and others consider the indirect State or Territory authority over the organisation.

    Here are some of the relevant laws that Employers have to comply with when recruiting a candidate into their organisation;

    1. Laws requiring employers to check criminal records

    Criminal records are an official repository or records on the government database. Your criminal records contain details like;

    A Criminal record is your complete legal profile (offences) on the Australian government database and can be very revealing. Although certain records can be wiped after a stipulated period elapses, it can take longer for some offences.

    Most Australian States and Territories mandate screening candidates' criminal records before admitting them into the organisation for certain sensitive roles. It can even be considered negligence if a person obtains specific (sensitive) roles without evaluating their criminal records.

    Some of these roles include;

    • Educators, Teachers, or any Staff required to be on School premises,
    • School bus drivers,
    • Commercial Bus Drivers, and other Personal drivers
    • Nursing and other healthcare services
    • Security officers,
    • Correctional services
    • Legal profession,
    • Resellers, second-hand retailers and Pawnbrokers
    • Taxi Driving,
    • Transport operators
    • Doctors,
    • Workers in finance-related institutions or private data

    Any employer recruiting for these roles or similar sensitive positions must adhere to the State/Territory policies on the candidate's Criminal records. However, the employer must also be cautious with the implementation of these laws, as execution may vary depending on;

    • State/Territory policies,
    • Peculiar cases of the candidate,
    • The presence of extenuating circumstances for the offences

    Other Similar Criminal records

    The Provision for this law does not usually culminate in Criminal records alone. Other relevant records depending on the role include;

    Working with Children Check

    As the name suggests, it informs the employer of a candidate's suitability in cases where they have to work with children. The WWCC is a special check, as it reveals deeper information compared to the common criminal record check.

    The WWCC includes additional details like;

    • Spent offences related to the role,
    • Restriction/Intervention/Violence orders issued by the Court
    • Rape, Molestation and other sexual related conviction (regardless of the state of the conviction)

    Working with Vulnerable People Check

    Much like the WWCC, only this applies especially to a broader group of vulnerable people, including;

    • The aged,
    • Children (in the ACT and NT),
    • Special needs people,

    In conclusion, various peculiar records apply especially to specific roles for Criminal records. All these records can be mandated as the criminal records that apply for the role per the State/Territory laws.

    1. Spent Convictions Scheme

    From above, we understand how essential the Criminal Records Check is for specific roles. Here, the law considers how the organisation conforms with the Spent convictions on the candidate's criminal records.

    The Spent convictions scheme allows certain offences to be wiped off a candidate's criminal records after meeting certain conditions. The usual condition that makes an offence become Spent is

    • A period of 10 years elapses where the candidate successfully observes a Good Behaviour period. (For matters handled in an adult court)
    • A period of 5 years elapses where the candidate successfully observes a Good Behaviour Period. (For matters handled in juvenile courts).
    • The person must not be found guilty of any other offence within this period.
    • The offence must be eligible for the Spent convictions Scheme.

    The Spent convictions Scheme allows relatively (first time offenders) to escape with a clean record after they meet the above conditions. It is a form of legal rehabilitation for people with convictions for "minor" offences.

    What employers must do when accessing Spent convictions

    The Spent convictions scheme varies across Australia, and employers must be informed of any pending changes to the laws.

    Employers are prohibited from assessing a candidate by their Spent convictions unless under special permissions of provisions. Although the State never releases the details of a Spent conviction in the criminal record, the Employer should never request it.

    The Scheme allows the candidate to declare all their previous convictions except those legally Spent. And the Employer must not coerce the candidate or other employees to release details about their Spent convictions.

    In the unlikely case that an employer gets information about a candidate’s Spent convictions, they are prohibited from revealing details.

    Assessing a candidate’s Spent conviction is only permitted where it is crucial to the role they seek. Employers must also be cautious of executing these checks; they should limit assessment to conviction records relevant to the role.

    1. Privacy Laws in Australia

    While there is a craze and premium for candidates or applicants to submit a Criminal record or other documents for screening, their Privacy must never be compromised.

    The world is big on privacy, including; corporations, people, countries and other systems. Under the Australian Human Rights law, it is an offence to deal indiscriminately with a person's data/information. The common principles regarding employers and employees are provided in the following;

    • National Privacy Principles (NPPs)

    It is considered best practice that all employers adhere to the provisions of the NPPs to be on the happy side of the law.

    • Information Privacy Principles (IPPs)

    If the organisation falls under the jurisdiction of the Commonwealth or the ACT public sector, they are required to comply with the IPPs.

    Employers/organisations should understand the slight differences between these principles and know where they are valid.

    While privacy laws do not prevent organisations/agencies from requesting Criminal records, they regulate how employers use these records. Below are guidelines to aid your organisation in dealing with privacy laws;

    • ✔ Request only relevant records

    The records or document must be directly relevant to the role or task the candidate seeks. It is improper to request details that are not relevant to the role.

    • ✔ Use the records as designated.

    When screening the candidate's records, only use them as earlier informed. It is improper to use the candidate's records outside the initially intended.

    • ✔ Confirm the validity of the record

    It is not enough to accept Criminal or any other relevant records. The employer must take extra steps to confirm the authenticity and validity of the record.

    • ✔ Securing and Disposing of the Records

    Since most of these records are sensitive, it is required that the employer takes extra steps to secure or dispose of the records.

    • ✔ Transparency in screening the records

    When you receive sensitive data, it is against privacy laws to share them with other departments or agencies without the candidate's consent.

    Before receiving this information, you must inform the applicants in clear terms about assessing their records.

    In conclusion, privacy laws mean that candidates are provided with sufficient information about how their records are used, stored, assessed or rejected.

    1. Industrial Relations Laws

    One of the most prominent laws regarding workers' welfare interactions with the organisation are the Industrial laws. Although not all States have distinct laws for industrial relations, others are handled through Commonwealth and Australian laws.

    Employers must be cautious and clear when dealing with employees or other recruitment processes to avoid issues with Industrial relation laws. These laws primarily cover specific topics in Australia regarding;

    • ✔ Employee treatments in the workplace regarding payments, welfare and career progression
    • ✔ Organisations promoting and implementing internal laws
    • ✔ Cases regarding creation and termination of contracts
    • ✔ Cases regarding workplace unions, contract reviews, and so on.

    The Industrial Relation laws give employees leverage to challenge unfair and controversial decisions by an organisation. For example, an employee can contest their sacking or punishment if they consider it unjust or targeted. The Fair Work Commission legislated by the Fair Work Act 2009 (Cth) is a relevant commission that deals with all unfair decisions regarding employee treatments.

    Various commissions/Acts allow employees to challenge decisions from bullish organisations, such as;

    • ✔ Fair Work Act
    • ✔ Equal Opportunities Commission
    • ✔ Australian Human Rights Commission,
    • ✔ And other relevant commissions or laws peculiar to the State.

    1. State and territory Anti-discriminatory Laws

    Discriminating against a person or certain group of people, especially for non-legal causes, is an abhorrent act and inmost cases may lead to severe legal remedies for the agency or organisation. Although all States/Territories have laws against discrimination, some are pronounced or distinct compared to others.

    States like Northern Territory and Tasmania have a special Antidiscrimination Act that contains essential and specified cases and punishments. The NT’s Anti-Discrimination Act of 1992 makes it unlawful to disregard a person based on their "irrelevant criminal records."

    However, this law takes into account the intended exclusivity when it concerns specific issues like;

    • ✔ Care,
    • ✔ Supervision of vulnerable,
    • ✔ Child care,
    • ✔ Teaching, and any other sensible roles.

    Tasmania’s Anti Discrimination Act of 1998 bears a similar purpose to the NT laws. It also prohibits discrimination against a person or group due to “irrelevant criminal records” in addition to other reasons. Some other specific laws prohibit discrimination due to;

    • Education,
    • Training or
    • Care of children.

    What commission regulates the Anti-discriminatory laws?

    The Australian Human Rights Commission is the prominent body under the law that handles complaints regarding Discrimination. However, specific States/Territories may have designated agencies to handle these issues.

    Western Australia and the Australian Capital Territory have a special commission that guides how organisations adhere to the stipulations of the Spent Convictions Scheme.

    Why is it essential to adhere to these laws?

    The primary function of the government is to secure and safeguard the citizens and their assets. The first step in this regard is to enforce a method of risk assessment strategy or policy that every organisation must follow.

    The Risk mitigation policies expect all organisations to conduct various forms of background checks for their employees. Some examples of this check include;

    The criminal record checks;

    • Police Check
    • ✔ Credit History Check
    • ✔ Bankruptcy Check,
    • ✔ Medical Checks
    • ✔ Educational Background Check
    • ✔ Fitness Check, and so on.

    Depending on the roles, these checks inform the organisation about a certain pertinent individual aspect. However, it can be dangerous for an organisation or agency to neglect any of these laws stated here or peculiar to the territories.

    Are Australian employment laws skewed to favour employees alone?

    The Employment laws in Australia are rather general and protective of every citizen rather than a particular group. These laws ensure that large companies do not exploit the locals or powerless employees.

    However, employers/organisations are not targeted in these laws. Most of these laws greatly benefit the organisations by mandating background checks on the candidates. Most of the conflicts from these laws arise when organisations cannot balance the recommendations of the laws with their internal policies.

    How can organisations incorporate these laws into their internal policies?

    Every organisation must unequivocally be subject to the State or Territory laws that oversee the jurisdiction. The State laws must be considered in making their internal organisation policies, including mandating such information through their Human rights groups or division.

    Also, organisations must handle the affairs dealing with employees and staff maturely and transparently. A high-handed approach to employee or internal matters may affect your organisation when dragged before a tribunal.

    Are there other laws for Organisations?

    Many other laws evaluate an organisation's dealing with the State, resources and business models. Although these focus on different aspects of your business, they may be interrelated in a court matter.

    Conclusion

    There are various punishments/remedial actions the court/tribunal can impose on defaulting organisations or agencies. Some of them include;

    • ✔ Hefty fines,
    • ✔ License evaluation,
    • ✔ License seizure,
    • ✔ Order to actions,
    • ✔ Court reversals of action,
    • ✔ And any action the Court deems relevant to the matter.

    How can I obtain a national criminal background check?

    Individuals

    If you are an individual, you can obtain a Nationally Coordinated Criminal History Check online via Australian National Character Check’s application and informed consent form. The results are dispatched via email.

    Business and Enterprise Customers

    Business and Enterprise customers are able to sign up to ANCC’s business portal where they can order, manage, track and view candidates’ police check results on their business portal.

    Organisations will undergo a process of approval prior to being granted access to ANCC’s business portal for the purpose of criminal history checks.

    ANCC sends an invite to the applicant to complete their background 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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