DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL
RECORD
Click here to access:
Submission No. 9 - Queensland Nursing
Council
Queensland Nursing Council's Response to Questions
for Discussion
Page 9
What impact might a criminal record have in the area of employment?
2 (a) Do you know of any employers with a successful track record of employing people with criminal records?
No
2(b) What practical difficulties face people with criminal records who are seeking employment?
Often no knowledge of how to access details relating to their criminal records such as transcripts of proceedings/sentencing remarks.
May be difficult to know how to present the kind of information that may counteract the criminal history - for example references should clearly indicate that they are aware of the person's background criminal history but nevertheless believe that the person is now rehabilitated and trustworthy.
If an applicant discloses a criminal history on the application form they experience delays in the processing of their application (while QNC seeks more information). This means an applicant does not obtain a licence which in turn delays when they can commence practise as a nurse.
2(c) How do people with criminal records address the difficulties they encounter in seeking employment?
2(d) What special difficulties face juveniles with criminal records?
2(e) What special difficulties face Indigenous people with criminal records?
2(f) Why might employers be reluctant to employ someone with a criminal record?
2(g) What strategies might address ongoing stereotyping of people with criminal records in the workplace?
Knowledge of successful employment outcomes for people with criminal records; statistical evidence regarding incidences of re-offending once integrated into the workforce/place.
Increased public and employer awareness through education.
Pages 14-15
What do discrimination laws say about taking a person's criminal record into account in employment?
3(a) Are there currently sufficient legal protections against discrimination in employment on the basis of criminal record?
In some cases, it is the policy / implementation of the criminal history checking process authorised by law that ensures protection for the applicant, for example information sheets, processes to seek comment from the applicant, appeal processes.
3(b) If there needs to be additional protection against discrimination in employment on the basis of criminal record, what form should it take and what elements should be included?
It may be that those processes that protect rights could be legislated.
3(c) What remedies should be available for people who have experienced discrimination on the basis of criminal record?
3(d) What difficulties might face a person with a criminal record who wishes to use the current anti-discrimination legislation? What can be done to overcome these difficulties?
Unaware of the current legislation. Information about anti-discrimination legislation etc could be provided to people when they complete an employment application. For example people applying for QLD Government positions obtain an application package, information about the legislation could form part of the package.
Page 17
What does a criminal record include?
4(a) Do employers and employees understand the categories of information that might be included or excluded on a criminal record check provided by police?
It has been the experience of Council that many nurses (prospective employees) when applying for registration and completing the application form for registration do not understand the categories involved for example charges v's convictions.
Council staff have also required education in regard to this area.
4(b) When requesting a criminal record check, do employers seek information about specific offences or do they request a general review?
The initial check requested by Council is for any criminal history, this history is then reviewed for any offences which may have a bearing on Council deciding if the applicant is competent, suitable and fit to practise nursing. If an offence of interest is revealed upon the initial check then specific details in relation to the charge/conviction is sought.
4(c) What difficulties, if any, have employers and employees encountered in obtaining criminal record checks?
- some court appearances have occurred in courts which have not been able to provide details of the hearing;
- records relating to the offences have been destroyed; and
- costs and time incurred obtaining collateral information to assist with the decision making process such as the transcript of proceedings/sentencing remarks.
4(d) Have there been instances where a criminal record check has been completed without an individual's consent?
The application form is set up so that the person applying for registration also consents to a criminal history check.
However, this can occur if an applicant has disclosed a criminal history and not signed the consent form on the application form. A request for a police report is still sought to verify criminal history as disclosed. If an applicant is selected for random audit and has not consented to a criminal history check on the application form the history is still sought from the Queensland Police Service.
Pages 26-27
When might a criminal record be relevant to employment?
5(a) In what occupations might a criminal record be a relevant ground for excluding a person from employment, licensing or registration? For these specific occupations what criminal record would be relevant and why?
Nursing for example:
- The criminal record may be relevant as it discloses a health concern for example drink driving (multiple offences) or illicit drug use.
- Theft - social security fraud or any amount of money taken when the applicant was in a position of trust at the time.
- Homicide, offences intending to cause injury, sexual assault and dangerous or negligent acts endangering persons.
Nurses have access to a large variety of drugs and can hold significant positions of trust and access to clients' person, property and personal details in relation to finance.
5(b) In what occupations would a criminal record never, or almost never, be relevant?
5(c) Are there any examples where criminal record checks are conducted unreasonably (ie go beyond the inherent requirements)?
5(d) Are there examples of licensing, admission or registration rules that go beyond the inherent requirements of the position?
Consider the following questions in your particular field of employment:
5(f) What guidance is available to help employers determine the inherent requirements of the job in the context of employees with a criminal record?
Council has developed Policies and Guidelines for the assessment and approval processes for staff. (A copy is enclosed)
5(g) What information should be available to actual or prospective employees regarding the inherent requirements of the job?
Council has developed Information Sheets for applicants which outlines the assessment and approval processes and discusses professional responsibilities. (A copy is enclosed)
5(h) What mechanisms are available to appeal disqualification from employment, licensing or registration?
The applicant/nurse/midwife will be notified within 10 working days of Council's decision and advised of their appeal rights. Section 137 of the Nursing Act 1992, sets out the appeal process.
5(i) What examples do you have of possible discrimination on the basis of criminal record?
None
5(j) Do licensing or registration rules allow for individual assessment of a person's criminal record and its relevance to the inherent requirements of a particular job within the industry?
Yes
Page 33
Questions for discussion Questions for employers:
6(b) Do you expect employees to voluntarily disclose their criminal record?
Yes
6(c) How do you respond if an employee refuses to answer questions about their criminal record?
Application process may be halted, referred for legal advice; referred to the Professional Standards Committee or the Executive Officer.
6(d) How do you respond if an employee is dishonest about their criminal record?
Nurse is always reminded of the responsibility to adhere to the standards within the Professional Code of Conduct and Ethics for nurses and depending upon the criminal history, application for registration or enrolment could be halted/refused. If history discovered once nurse/midwife holds registration or enrolment, their licence to practice could be limited, suspended or cancelled.
6(e) How should employers make sure that they comply with the requirements of spent conviction legislation?
The Nursing Act specifically states that the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) does not apply to the asking for, or the giving of, a police report on criminal history.
Questions for applicants/employees
6(f) Do you have any examples of a person voluntarily disclosing their criminal record and then experiencing discrimination?
No, once Council has issued a nurse a licence to practice most employers do not question the nurse further unless it is a specific requirement of the position or if the criminal history should be brought to their attention once employed.
6(g) Do you have any examples of instances where an employee has been dishonest about their criminal record? What were the reasons? What was the result?
Since the introduction of the Criminal History cheking/dislcosure in October 2004 the instances of failure to disclose have been minimal. A small number have been discovered during the random audit process. Reasons varied from "didn't think it was relevant" to not wanting to admit due to fear of outcome and embarrassment. Result has depended upon reason for conviction or charge, however the failure to disclose is not looked upon favourably as it displays an element of dishonesty.
6(h) Do you have any examples of an employee refusing to answer questions about their criminal record?
No
Page 38
Questions for discussion; Questions for employers
7(a) Do you have any examples of clear procedures for examining an applicant's criminal record? Are there currently guidelines in your organisation or industry?
The Queensland Nursing Council currently has a policy and framework which has been developed for examining the criminal history. (enclosed)
7(b) What would further assist you in understanding your responsibilities and in what form would the information be most useful?
7(c) Do you have any examples of confusion about whether a criminal record is relevant to the job?
The greatest area of uncertainty to date has been what an indictable offence is and what is not. However this is starting to resolve as more applicants are processed and staff are offered training, more detailed guidelines to assist in the assessment process and experience is gained.
7(d) What review or appeal processes should there be for decisions made on the basis of criminal record?
7(e) Does your organisation have any training materials that address these issues?
Questions for applicants/employees
7(f) What information should you have about how your criminal record might be considered by an employer?
7(g) Do you have any examples where employers have not had clear or fair procedures for considering an applicant's criminal record?
7(h) What opportunities should be given to an applicant to explain their criminal record?
7(i) Do you have any examples where dishonesty has resulted in dismissal even when the criminal record is not relevant to the job?
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