There have been recent changes to the Australian Human Rights Commission Regulations 1989, which now allow for employers to apply ‘reasonable discretion against prospective employees if their criminal record is relevant to the position being applied for’.
Previously, the criminal record had to be directly relevant to the ‘inherent requirements’ of the role in order for the prospective employee to not be considered.
Despite the changes to the wording, not considering an applicant because of their criminal record is still somewhat challenging, as what is ‘relevant’ could vary greatly from role to role. In order to apply the ‘reasonable discretion’ required, referring to clear position descriptions and role requirements will help employers make this decision. For example, a traffic offence recorded as a criminal offence, may not be relevant to the role of an administrative supervisor and therefore, shouldn’t be considered in relation to the application.
Creating position descriptions for roles you are hiring for before you place a job ad, is a useful practice for your business. These documents help to provide clarity on what is necessary for the role and can also help you to formulate relevant questions to ask throughout the interview process.
It is important to remember that it is still unlawful for an employer to simply not consider (discriminate against) an applicant because of their criminal record.
If you need help with your recruitment processes, get in touch with the Workplace Central team today!
*This is general information only and does not take your specific circumstances into account.