If you’re like most businesses, your initial job application process probably hasn’t been reviewed in many years. It’s possibly a list of questions that you ‘borrowed’ from someone else. Maybe you fly by the seat of your pants every time someone applies for a job. Either way, it’s important to understand that there are anti-discrimination obligations regarding job applications, even if you don’t decide to hire anyone for the role.
When did you last review your initial application form? Are there any questions on there that really aren’t relevant to the job? Marital status is a common one that really shouldn’t be there. What about criminal convictions? According to the Australian Human Rights Commission,
“If an employer has a fair and open process of dealing with the disclosure of criminal records at the outset, many complaints of discrimination can be avoided.
On the one hand, most employers feel that a job applicant has the responsibility to disclose their criminal record honestly in response to a request. On the other hand, people with criminal records are acutely aware that they may be judged adversely because of their criminal record, and not given a fair go. They may decide not to disclose for this reason. In such a sensitive area it prevents many problems if employers create an environment which will encourage an honest and open exchange of information.
It is important to remember that for some jobs, a criminal record will be an irrelevant consideration. An employer does not need to request criminal record information from job applicants if it is irrelevant to the inherent requirements of these jobs.”
It’s possible that in your workplace, previous criminal convictions might be relevant information to know for some roles, but not others, which means a one-size-fits-all approach isn’t recommended. Before advertising for a role, you should consider what the inherent requirements of the role are, document them in a position description and disclose any requirements for criminal conviction information or criminal history checks in the position vacant ad. Because each criminal conviction and the circumstances around it can be different, it’s also recommended that you add a statement to the ad notifying potential applicants that those with a criminal record won’t be immediately removed from consideration (unless a clear criminal history is specifically required under law). This helps start clear and open communication from the start of the process and reduces chances of poorly considered ‘accidental’ discrimination.
When prior criminal convictions are relevant to the specific role, it’s also important to tailor the question so its relevant to the specific issue. I.e. is it only non-spent convictions that are important? Do you need to take juvenile convictions into account? Are there only specific types of convictions that are relevant?
In most states (excluding Tasmania and the Norther Territory) there aren’t specific laws that prohibit discrimination against an employee/potential employee for a criminal record. HOWEVER, the Fair Work Act 2009 and the Anti-Discrimination Act 1991 do have protections for employees regarding unfair dismissal and general protections (unlawful actions) for which workplace discrimination most certainly can be considered.
If you’re uncertain whether your application process could be seen a discriminatory, get in touch with our Workplace Partners. Our expertise in Workforce Management can help you improve systems and processes around recruitment, hiring and people management.
Please remember, this is general advice only and is not legal advice. Every situation is different and although we strive to provide you with accurate, relevant information in our blog, you should make your own enquiries as to what is required in your business.