DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL
RECORD
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Submission No. 69 -
Occupational Analysis
Rodney Stinson, Principal Analyst, 2
March, 2005
GPO Box 2171 Sydney NSW 2001
Phone - (02) 9955.9320
Fax
- (02) 9959.3960
Website: www.jobmarkets.com.au
Dr Sev Ozdowski, O.A.M.,
Human Rights Commissioner,
Human Rights and Equal Opportunity Commission,
G.P.O. Box 5218 ,
Sydney . N.S.W. 2001
Dear Dr Ozdowski,
I have prepared brief comments on the Commission's "Discrimination
in Employment on the Basis of Criminal Record" Discussion Paper. I
regret that these are short and perhaps not sufficiently developed
and that they have been lodged after the (informally) extended date
for submissions of 28 February, 2005.
This submission deals with two topics.
One is the research now being undertaken by my small business in key
subjects covered in the terms of reference. The other is my initial
response to the Discussion Paper, chiefly with regard to its treatment
of the "inherent requirements" exception
permitted by the relevant legislation concerning discrimination on
the basis of a criminal record.
Occupational Guide
Occupational Analysis is in the final phases of its research of 770
occupations and in which of those occupations persons with a criminal
record or a specific type of criminal record cannot be employed, which
require licensing/registration and a good character check that may
or will result in their application being refused, and the great majority
of occupations in which employment of persons with a criminal record
is neither prohibited nor likely to be denied in the way described.
At this stage, only the New South Wales situation is being researched.
The large number of occupations in the last category is being separated
into two or three sub-groups. The separation process involves consideration
of the job duties of each occupation, as listed in the Australian
Standard Classification of Occupations ( ASCO ) Dictionary ,
and an assessment as to whether the job duties for the particular occupation
could, fairly and reasonably, permit an employer to discriminate against
someone with a criminal record or a specific type of criminal record.
This approach is conceptually very different to what I understand to
be the Commission's general approach, as detailed in the Discussion
Paper. The main differences are outlined later in this submission.
Our research findings will be presented in an extended table in a
forthcoming publication called Combining Justice and Mercy: Occupational
Guide for People with a Criminal Record . The tabular presentation
will make it easy to access the findings and other key information
to be included for each occupation such as usual education level and
essential job search methods. May, 2005. Combining Justice and
Mercy will also include an explanation of the research project
and the assessment methods as well as practical and ethical principles
that underlie important components of the assessment methods and that
provide, in the author's view, a sound foundation on which employers,
their representatives, job-seeking ex-offenders and assisting professionals
can make informed, ethical decisions in individual cases and generally.
The 770 occupations in the research project are the same as the ones
in another book, Job Prospects Australia 2005-2006 , which
is being released today. It will be possible for users of Combining
Justice and Mercy to refer to the related labour market information
in the just-released book. Occupational research is my specialization,
and the Job Prospects , What Jobs Pay and Job
Markets series are the most comprehensive labour market resources
publicly available in Australia . They are cited and relied on in many
economic loss matters before the Courts and in rehabilitation/re-training
reports related to workers' compensation claims.
Non-Discrimination and differentiation "on an objective and
appropriate basis"
The Introduction to the Discussion Paper relates, and I paraphrase,
that the principle of non-discrimination permits differentiation between
people with or without a criminal record and between those with or
without specific types of criminal records but it requires that any
differentiation excluding someone because of his or her criminal record
be made "on an objective and appropriate basis". It goes on to state
that "to determine whether it is appropriate to exclude people with
criminal records from certain areas of employment, the 'inherent requirements'
of a particular job must be identified and . . . careful consideration
[given as to] . . . whether a particular person's criminal record would
disqualify him or her from properly meeting those requirements".
There
are, in fact, two conceptually different notions of employment here,
one being "certain areas of employment" and the other "a particular
job". The former may always require exclusion of someone with a criminal
record (for example, the N.S.W. Police Service) or of someone with
a specific type of criminal record (for example, ex-offenders convicted
of crimes against children and their exclusion from child care work).
The principle of non-discrimination in such instances necessarily entails
their exclusion, because of the requirements of the law or regulation
under law. Accordingly, differentiation on those grounds is certainly
on an "objective" basis, and the issue as to its being "appropriate" does
not arise, in my opinion.
Where regulation under law or through an association's
articles permits the carrying out of a good character check of licence/registration
applicants, the "objective and appropriate basis" of differentiation
becomes more problematic, it seems to me. Where there is a direct link
between the licence/registration and a named employer or kind of work,
as spelt out in the examples just cited, then the objective basis of
exclusion is guaranteed. In all others not so linked, the reason/s
put forward for refusing a licence or registration to an applicant
having a criminal record would need to spelled out and justified in
writing. Occupational Analysis' research for Combining Justice
and Mercy indicates that there is variability in the explanations
advanced by licence and registration boards in their literature, at
least with respect to those operating in New South Wales, and it appears
to us that clear details showing applicants the nature of the character
check and the weight attached to a criminal record are seldom provided
prior to lodgment, though the details may, we acknowledge, be given
subsequently, perhaps during the licensing/registration process or
later in feedback to unsuccessful applicants. I suggest the operations
of licence and registration boards in relation to their treatment of
persons with a criminal record call for close attention.
Inherent Requirements
In my opinion, the Discussion Paper does not adequately define the
key term 'inherent requirements'. A thumbnail summary is implicitly
given - viz. that it has been interpreted by the Courts to mean "essential
aspects of a particular job" [cf. Section 3.2, page 11] - and further
support for that is provided by extracts from judgments seeking to
explicate the term [cf. Section 5.1 pages 18 and 19]. As I read them,
there is an element of circularity in the definitions and explications.
The Discussion Paper notes that the extracted details "offer some
guidance as to how the inherent requirements exception may be applied
in the courts" and that they "provide little practical guidance for
employers making day-to-day decisions" [cf. Section 5.1 page 19], and,
for that matter, I would add, to job-seekers with a criminal record.
Without an adequate definition supplied by the Commission, employers
are being given, I would argue, too great a responsibility and too
heavy a burden to develop, fairly and reasonably, a working definition
of 'inherent requirements', to implement that, fairly and reasonably,
in their own organization or business and to keep satisfactory written
records about what has been done. I have avoided using the Commission's
own phrasing of "objective and appropriate" as it calls for its own
definition, whereas none is, on my first reading, included in the Discussion
Paper. While "objective" in its commonly accepted sense may be said
to have an implicit meaning, "appropriate" does not but is rather subject
to numerous meanings, most of them vague or extenuated.
One way of achieving objectivity is to ensure employers and the Commission
itself place reliance on reference materials, preferably published
sources, in their own assessment of what are 'inherent requirements'
in work duties. My perusal of the case studies, in combination with
my existing knowledge of standard personnel/recruitment practices in
small businesses, leads me to think that this is seldom likely to be
done, and that, when done, it could be solely or mainly a post-facto
response to a claim of discrimination based on criminal record.
In order to understand the 'inherent requirements' of a particular
job, I would maintain that the stated duties of that job should be
classified to an occupation in a recognized reference source, the main
one being the Australian Standard Classification of Occupations ( ASCO ) Dictionary ,
though Job Guide is at times a handy supplement as it has
more information on some occupational specializations. Both of these
reference sources were developed by and are published by Federal government
departments. I propose that, to move assessment onto an assured objective
level, the duties of a particular job require classification to their
occupation. This will occur because statements of job duties for the
occupation act as the objective (external) measure of what is involved
in workplaces as a whole. I grant that employers (especially small
businesses) often combine duties in a particular job such that some
could be classified to one occupation and others to another occupation.
That need not render unnecessary recourse to the reference source as
a comparison could be made against the two - or, less often, more - relevant
occupations.
Although a particular job or a series of particular jobs is probably
how most employers conceive employment in their organization or small
business, rather than in occupational terms, this stance need not be
accepted with regard to the Commission's legislative and administrative
responsibilities regarding discrimination due to a criminal record.
There are now almost 9.8 million persons employed in Australia . In
other words, there are about 9.8 million jobs. Establishing what are
fair and reasonable statements of the 'inherent requirements' for that
total of jobs individually is not feasible; but it is feasible, in
my view, to prepare a guide to the occupations which, either entirely
or for the most part, may have 'inherent requirements' in their occupational
duties that do not, or probably do not, fairly and reasonably require
the non-employment of former offenders, or that, conversely, do fairly
and reasonably justify non-employment. This conviction led to the research
for the occupational guide to be included in Combining Justice
and Mercy
Practical and ethical principles including truth
telling
Combining Justice and Mercy will set out practical and ethical
principles pertaining to the assessment methods underlying the occupational
guide entries and that also provide, as noted above, a sound foundation
on which employers, their representatives, job-seeking ex-offenders
and assisting professionals can make informed, ethical decisions in
individual cases and generally. The Discussion Paper cites the judicial
remark about there being "No universal duty on a prospective employee
to volunteer anything about his or her prior record" [cf. Section 6.1,
page 27], and that is one of the principles to be endorsed in the forthcoming
publication, albeit from the perspective of Catholic morality. Indeed,
Catholic moral teaching will supply the unifying principles for what
is being proposed, and that internal coherence may or will, for better
or worse, be tagged by some or many commentators and participants as
introducing controversy or even a sectarian flavour. I would respond,
on the contrary, that acknowledged, overt reliance on systematic ethical
principles - specifically, Catholic moral teaching - will allow a clearer
account of the ethical issues involved and a framework in which to
generate practical guidance than would otherwise be possible.
I perceive in the Discussion Paper an implicit ethical position, one
that is utilitarian and realistic. [Examples are in Section 6.2 pages
29 and 30.] It is no less real for being implicit, but it is a hindrance,
I believe, to have the Commission's position implicit rather than explicit,
especially when it intends to produce a "set of resources . . . to
clarify rights and responsibilities in this difficult area". When "rights" or
perceived rights conflict, as is evidenced by the case studies and
part of the commentary in the Discussion Paper, a resolution cannot
simply be, as it is in the Discussion Paper, effectively to defer to
the right/s of the more powerful, the employer, and thereby to negate
the competing right/s of the person with a criminal record. Similarly,
it is all too easy when discussing the responsibilities of the parties
in an employment situation to highlight the obligations and supposed
obligations of the less powerful party or parties. For instance, the
Discussion Paper Section 6 on Disclosures [page 27 f.f.] focuses on
the desirability or necessity of disclosure by the person with a criminal
record. What has been omitted is any treatment of responsibilities
on the employer's side, in connection with the issue at hand concerning
personnel/recruitment practices, the employment contract and the workplace
as a whole. The same sort of imbalance is evident in other sections
of the Discussion Paper.
Full community participation and employment opportunities
The Discussion Paper refers a number of times to the hardships facing
people with a criminal record, including: "Australians who have a criminal
record often face significant barriers to full participation in the
Australian community" and "Trying to find a job is one of the areas
of greatest difficulty for former offenders" [both in the Introduction,
page 3]. On my reading, only one of the sources cited in the literature
search [cf. footnote 2, page 6] is Australian.
From my experience in
St Vincent de Paul volunteer work in the 1970s and 1990s and CES
work in the late 1970s, and recently from our research contacts and
reading of reports and studies located through Internet searches, there
are undoubtedly severe hardships for people with a criminal record,
when they return to their communities and when they attempt to establish
on-going remunerative employment. Combining
Justice and Mercy will have a couple of paragraphs on the few
local studies and reports we have come across. I imagine the Duffy
thesis mentioned in your literature search would have gathered all
of what is available locally. Nevertheless, I would recommend that
the Commission consider undertaking an analytical study of the Australian
Bureau of Statistics' published and unpublished data on the prison
population, including the originating data from the prison Census.
This will help to document aspects of the individual and collective
disadvantages accruing to those in prisons, more especially on their
return to the outside community and in their endeavours to secure
satisfying, fruitful employment.
In conclusion
Although some of my comments in this submission may be interpreted
as critical, I would prefer to see them as unshielded. In its day-to-day
activities and with initiatives like the Discussion Paper, the Commission
is working towards minimizing and, if possible, eradicating unjust
and unwarranted discrimination in employment affecting persons with
a criminal record. I trust that Combining Justice and Mercy will,
in a few months, contribute to the Commission's work. I appreciate
the Commission's invitation to make a submission and for indicating
a late submission could still be taken.
Yours sincerely,
Rodney Stinson
Principal Analyst
2 March, 2005
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