An employer has numerous obligations to their workers, whether they be employees, contractors or volunteers. Some of these obligations arise out of contractual relationships. However, some of these obligations need to be fulfilled as part of legislative requirements. Many careers that work with vulnerable people will be familiar with the necessary checks that need to be completed. This is especially common in industries such as aged or residential care, teaching, charities, and social work. As an employer, it may be difficult getting all of the compliance boxes ticked and understanding your way around the legislation. This article will run through the framework around police checks and your workers.

What is a Police Check?

A police check, also known as a criminal record check or criminal history check is a process by which an individual’s criminal history is disclosed. A person can apply for the requisite documentation through the appropriate regulatory authority, and this can be provided to other third parties, e.g., employers.

How Do I Know if I Need to Complete a Criminal Record Check For my Worker?

Although recommended, generally not all employers are obliged to conduct criminal record checks. The law also differs broadly from state to state as no national law would apply to all businesses in Australia. 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. There are however specific professions where a criminal record check is mandatory and two examples of legislation that outline the requirements are set out below.

Example 1: Child Protection (Working with Children) Act 2012 (NSW) (“Child Protection Act”)

The Child Protection Act prescribes that those covered by the Act are subject to a national police check. The Act defines worker and includes an employee, a self-employed person (as a contractor or subcontractor), volunteer or a person undertaking practical training, etc. In the Child Protection Act, the onus is on the employer to ensure their worker has the appropriate clearances. The Child Protection Act covers those involved in “child-related work”. and may include, for example, teachers and health professionals.

Example 2: Aged Care Act 1997 (Cth) (“Aged Care Act”)

The Aged Care Act requires that staff and volunteers must have completed a national police check. This Act defines a staff member under the accountability principles as to include those workers who are “employed, hired, retained or contracted by the approved provider”. The Aged Care Act, however, 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.

What is the General Recommendation?

As your workers are a representation of your business, it is usually recommended that you obtain as a matter of precaution the requisite police checks, even if your business is not obligated to do so. Here, it is important to note that if you are planning to employ someone, other laws may come into play such as those relating to anti-discrimination.

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As shown above, an employer’s obligations vary greatly depending on where the business is located, the type of worker being used (i.e. volunteer, employee, contractor, etc.) and the nature of the work provided. If you are unsure of the obligations you need to fulfill, receiving legal advice and guidance will help you understand the possible compliance issues. Questions? Get in touch with our employment team on 1300 544 755. 

Kristine Biason

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