An employer has numerous obligations to their workers, whether they are employees, contractors or volunteers. Some of these obligations arise out of contractual relationships. However, some of these obligations are legal requirements. Many employers who operate businesses that work with vulnerable people will be familiar with the necessary checks they must complete. This is especially common in industries such as aged or residential care, teaching, charities, and social work. As an employer, it may be challenging to get all of the compliance boxes ticked and understand your way around the legislation. This article will explain the framework around whether your workers require a police check.
What is a Police Check?
A police check, also known as a criminal record check or criminal history check, is a process that discloses an individual’s criminal history. A prospective or current employee can consent to a police check and provide the assessment outcomes to others, including their employers.
Generally, the industries which the law requires police checks for include:
- education;
- construction;
- security services;
- mining;
- finance and legal services; and
- real estate.
In any event, prospective and current employees must consent to a police check. If the law requires a police check for the job role you advertise, you should state that a police check is required in the information you send to job applicants.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
Should I Request My Workers to Complete a Criminal Record Check?
Depending on the legislation and governing law, the onus is sometimes on the employer to conduct the appropriate criminal record checks, and sometimes the onus is on the individual engaged in the work. However, there are specific professions where a criminal record check is mandatory. Let us explore three examples below.
1. Working With Children
The Child Protection Act prescribes that those covered by the Act are subject to a national police check. The Act covers those involved in “child-related work”. Child-related work is a broad phrase that includes teachers and health professionals. The Act also defines workers and includes:
- an employee;
- a self-employed person such as a contractor or subcontractor;
- a volunteer; and
- a person who is undertaking practical training.
Ultimately, the onus is on you as the employer to ensure your workers have the appropriate clearances.
2. Aged Care
The Aged Care Act requires that staff and volunteers complete a national police check. Before commencing work, every staff member in the aged care sector must obtain a police check. This includes:
- paid employees who have supervised and unsupervised access to the elderly; and
- unpaid volunteers who have the same access to the elderly.
However, the Act excludes the requirement of the business to require police checks for independent contractors who, for example, have been requested by an individual patient or only provide services on an ad-hoc basis.
3. Construction
Each state and territory has different conditions for builders seeking to obtain a license. Some of these laws require police checks. For example, South Australian law requires a national police check and evidence of expertise before a builder obtains a licence. In this instance, you, as an employer or director, must obtain the police check certificate.
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In all circumstances, an employee must consent to a police check. This means that an employee could potentially refuse to disclose their criminal history. While you cannot force or coerce your employee to undergo a police check, their refusal might mean they are unsuitable for the job. For example, where the law requires workers to obtain police checks in a particular sector, their refusal might mean your employee does not satisfy the inherent requirements of the job
In saying that, if obtaining a police check is not an inherent requirement of a particular job, you can expect employees to refuse the request. Asking prospective or current employees irrelevant questions about their criminal record and then relying on this information to treat them less favourably could be discrimination.
Key Takeaways
Depending on your business’s industry, you may require your workers to obtain a police check. A police check is a process that discloses an individual’s criminal history. In all circumstances, your prospective or current employee must consent to the police check.
If you need help deciding whether your workers require a police check, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
A police check is a process undertaken by the police that details any criminal records that an applicant might have.
You can ask an employee to obtain a police check. However, relying on this information to treat them less favourably could be discrimination. Additionally, your employee can refuse to consent to a police check.
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