Police Clearances – What you need to know as an employer

A National Police Clearance is a summary of a person’s police history in Australia. It is a list of a person’s disclosable court outcomes and includes any pending charges from all jurisdictions across the country. Conducting a police clearance on a potential new employee is often a staple part of the recruitment process for many employers. The rationale being; to protect the business from any future criminal activity and to ensure a potential new employee, is trustworthy and of good character. There are, however, a number of key legislative provisions in the area of discrimination and privacy, which must be considered when undertaking police checks as part of a recruitment process.

 

Can I Request a Police Clearance?

 An employer can conduct a police clearance check on a potential applicant throughout the recruitment process. Any findings, however, should only be considered where there is a clear link to the inherent requirements of the role.

Where an employer believes that a potential employee’s criminal record may impede their ability to perform the inherent requirements of the position, they must get the person’s consent to conduct the check. It’s also important to advise potential candidates on the job advertisement and throughout the process that a police check may be conducted as part of the recruitment process.

 

Can I refuse to employ someone based on their criminal history?

An employer may be able to lawfully refuse to employ a prospective employee based on their criminal record where there is a clear link to the inherent requirements of the role. For example, a person with convictions related to assault and violence may be deemed unsuitable for a role that is responsible for the care of vulnerable people such as those with disabilities, the elderly, or children. Another example, is in the context of a person who has a criminal record related to fraud and financial crimes. In this scenario they may be deemed unsuitable for a role that requires them to deal with financial transactions or accounts within a business.

A person’s criminal history should not automatically disqualify them from potential employment, with each circumstance treated and assessed on a case-by-case basis. An example, where a person’s criminal record may have no impediment on the ability to perform the inherent requirements of the role, may be where a person has been convicted for driving offences and they are applying for a role as an accountant. In this situation, there may be no clear link between their performance of the inherent requirements of the role and their past convictions.

 

Practical Example

A 2018 inquiry conducted by the Australian Human Rights Commission (the AHRC), BE v Suncorp Group Ltd [2018] AusHRC 121, looked into the issue of discrimination in employment based on a person’s criminal record. The complainant raised a written complaint to the AHRC alleging discrimination based on a criminal record after a conditional offer of employment was revoked by Suncorp following a police check conducted on him.

The police check revealed that in 2008 he was convicted of accessing and possessing child pornography and sentenced to 12 months imprisonment. It further revealed that in 2015 he was fined for a failure to comply with reporting obligations related to these previous offences. After receiving the criminal record history, Suncorp discussed the findings with the applicant and later rescinded the offer. At no time did Suncorp cite the criminal record findings as rationale for rescinding the offer, however, the AHRC considered the merits of the matter and determined that the previous convictions were not sufficiently linked to a failure to perform the inherent requirements of the role.

The AHRC made a recommendation in this case that Suncorp pay the applicant $2,500 compensation and further recommended they revise their recruitment policies for people with criminal records and conduct further training for staff involved in recruitment decisions.

 

Key Considerations

There are several key considerations employers must keep in mind when requiring a police clearance check as part of a recruitment process, such as:

1.) Consider whether the job vacancy requires a police check and if any criminal history may impede an applicant’s ability to perform the inherent requirements of the role;

2.) If you intend to conduct a police clearance check, ensure that it’s written in the job advertisement and reinforced to applicants at time of interview that they may be subjected to a police clearance check;

3.) Ensure you get an applicant’s permission to conduct a police clearance check;

4.) Allow a candidate a right of reply and opportunity to explain any convictions that may be present on a police clearance check;

5.) Treat each scenario on a case-by-case basis; and

6.) Ensure the business has a prescriptive recruitment policy in place which is compliant with equal opportunity, discrimination and privacy legislation considerations in relation to police clearance checks on potential employees.

Want to know more? Contact CCIWA’s Employee Relations Advice Centre team on 9365 7660 or email advice@cciwa.com

 

 

 

 

 

New annualised wage provisions – what does this mean for my business?

From 1 March 2020, new rules for annualised salaries will make keeping timesheets and conducting yearly pay reviews compulsory for some businesses. The rules also restrict how long employers have to compensate workers for underpayment.

The Fair Work Commission’s update to 18 Modern Awards is intended to ensure workers on annualised wages are not worse off than those paid an hourly or weekly wage.

Members who have employees on annualised wage arrangements, pay their employees a flat rate of pay or aren’t sure if their employees are covered by an award are encouraged to contact CCIWA’s Employee Relations Advice Centre team on 9365 7660 or email advice@cciwa.com.

 

Affected awards include:

  • Banking, Finance and Insurance Award 2020
  • Broadcasting, Recorded Entertainment and Cinemas Award 2010
  • Clerks—Private Sector Award 2010
  • Contract Call Centres Award 2010
  • Horticulture Award 2010
  • Hydrocarbons Industry (Upstream) Award 2010
  • Legal Services Award 2020
  • Local Government Industry Award 2010
  • Manufacturing and Associated Industries and Occupations Award 2010
  • Mining Industry Award 2010
  • Oil Refining and Manufacturing Award 2020
  • Pastoral Award 2010
  • Pharmacy Industry Award 2010
  • Rail Industry Award 2010
  • Salt Industry Award 2010
  • Telecommunications Services Award 2010
  • Water Industry Award 2010
  • Wool Storage, Sampling and Testing Award 2010

 

What is an annualised wage arrangement?

An annualised wage arrangement is a provision under an applicable award that allows employers to bundle certain award entitlements and pay employees an ‘all-inclusive’ wage each pay cycle.

 

What has changed?

The new provisions are intendent to ensure that an employee engaged on an annualised wage arrangement, under an applicable award, is not any worse off than an employee being paid an hourly or weekly wage under the same award.

The new rules vary between awards to account for differences between roles and industries, but in general outline that:

  • details of the arrangement, including the hours of work compensated for, are to be provided in writing to the employee;
  • each pay cycle, the employee must be compensated for any hours that fall outside the agreement;
  • for each 12 months engaged on an annual wage, the total annualised wage of an employee must be reviewed against what they would have received under the award;
  • a record of start and finish times of each employee, as well as any unpaid breaks taken must be kept and verified by the employee; and
  • any underpayments discovered upon completion of the annual review must be corrected and back paid within 14 days.

 

Practical considerations

Businesses may be impacted by the changes even if they are paying the worker on an annualised salary above what they would receive under the minimum award rate. This is particularly important given the recent crackdown on underpayment of wages.

Household names have been the subject of high profile prosecutions for underpayments. The Australian Government is now considering criminalising systematic and deliberate wage underpayment. Currently, employers can be fined a maximum penalty of $63,000 per occasion for underpayments where good record keeping is not practiced and up to $630,000 per occasion if the contravention is considered serious. However, employers who are part of an employer organisation, such as CCIWA have proven to be less likely to underpay employees and are more likely to be ethical businesses.

Members and non-members have access to CCIWA’s team of experienced workplace relations lawyers can assist in drafting contracts and completing wage audits to ensure your business is compliant with these changes and minimise your risk of underpayment.

 

Want to know more? Members of CCIWA can access a member exclusive Industrial Award Service that provides up to date information on the Modern Awards. The service includes a copy of the award, a wage schedule and real time updates relating to any changes to the award. To subscribe to the Industrial Award Service, contact CCIWA’s Employee Relations Advice Centre team on 9365 7660 or email advice@cciwa.com.