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Workplace Bulletin
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Can you lawfully screen a job candidate for 

criminal record?

Monday, 29th September 2014, by Loran McDougall

In today's Workplace Bulletin:
  • 4 things you must do to lawfully undertake a criminal record check
Dear Reader,

When recruiting, you want to make sure you get the best person for the job. There are numerous pre-employment screening methods available to help you with this – but that doesn’t always mean you can lawfully use them all.

Today’s bulletin focuses on criminal record checks.
A criminal record check is a document that outlines a person’s criminal history, including:
  • charges that were not proven;
  • investigations;
  • findings of guilt with no conviction recorded; and
  • convictions that were later pardoned.
If you are considering having a criminal record check done in relation to a prospective employee, you need to make sure your actions do not amount to unlawful discrimination.
Before you go ahead with a criminal record check on a prospective employee, ensure that:
  • the conviction is relevant to the inherent requirements of the job for which the candidate is applying;
  • the information is collected with the candidate’s consent;
  • the candidate’s conviction is not ‘spent’; and
  • you have processes to keep the information secure.
Keep reading for more information about each of these requirements.
But just quickly...
If you subscribe to the Employment Law Practical Handbook, you’ll be familiar with the Workplace Helpdesk.
This is a service that provides direct email access to an experienced employment lawyer whenever you need it.
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Until next time,
Jessica Oldfield
Loran McDougall
Workplace Bulletin
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4 things you must do to lawfully undertake a 
criminal record check
by Charles Power
Editor-in-Chief, Employment Law Practical Handbook
When requesting a criminal record check from a prospective employee, ensure that you do the following things:
Make sure the conviction is relevant
To avoid a complaint being made against you, ensure that a conviction is relevant to the inherent requirements of the job before you ask a candidate to disclose criminal record information. For example, it would be relevant to check for a criminal history of fraud if you are an employer in the finance industry.
The inherent requirements of a job are the essential activities of that job, not peripheral or non-essential tasks. If you removed an inherent requirement of a job, it would be a different job.
Collect the information with the candidate’s consent
When requesting a criminal record check from a candidate, do the following things:
  • explain why the check is necessary, i.e. in reference to the position, the nature of your business and the manner in which business is conducted;
  • advise the candidate what they are not required to disclose, e.g. any spent convictions (see below);
  • obtain the candidate’s written consent; and
  • give the candidate an opportunity to respond and explain why their criminal record (if applicable) is not relevant to the job.
Ensure the conviction is not spent
In all States and Territories other than Victoria and South Australia, it is unlawful to discriminate against someone with a ‘spent conviction’.
‘Spent’ means that the conviction no longer forms part of the person’s publically accessible criminal record, because a specified period of time has passed with no further convictions.
Spent convictions schemes are designed to ensure that a person is not indefinitely burdened with the stigma of a criminal conviction.

Have a process in place to keep the information secure
You must take reasonable steps to protect the information from:
  • misuse;
  • loss;
  • unauthorised access;
  • modification; and
  • disclosure.
Charles Power
Charles Power

Employment Law Practical Handbook

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