The process of hiring employees can be challenging as giving someone responsibility in your business requires a certain amount of faith. As an employer, you would like to know whether you can trust your workers to ensure that your workplace is safe and secure for your employees, customers, and clients.
In particular, this is important if you require your employees to work with vulnerable people such as the elderly, sick people, and young children. Therefore, it may be tempting to conduct job police checks on job applicants to keep those associated with your business safe. However, there are some legal requirements that need to be taken into consideration before you conduct a job police check.
Whether you can conduct job police checks on a job applicant doesn’t have a simple yes or no answer. This question requires assessment on a case-by-case basis, and there are various factors that need to be taken into consideration when determining whether it’s legal to conduct a police check on a job applicant.
In this article, we’ll explain whether employers can legally conduct job police checks on job applicants, the importance of job police checks, the factors that determine whether you can conduct a job police check, and answers to other frequently asked questions.
Read along!
Are Job Police Checks Legal For Employers To Conduct on Job Applicants?
The short answer to this question is yes, it is legal for employers to conduct job police checks on job applicants. However, this is only legal, depending on the specific circumstances.
Want more?
Sign up for our newsletter and be the first to find hand-picked articles on topics that we believe are crucial to successfully scale your unique small business.
By clicking on 'Sign up to our newsletter' you are agreeing to the Lawpath Terms & Conditions
Why are police job checks important?
Conducting police checks on job applicants is important due to the following reasons:
- This process is essential to ensuring a safe and trustworthy work environment
- In some cases, if an employer has failed to exercise proper due diligence when hiring an employee and something goes wrong, the company could be held vicariously liable for the conduct of the employee
- Job police checks are integral to the safety and well-being of the broader community by keeping workplaces safe
- From a business perspective, it’s in an employer’s best interest to ensure the reputation of the business remains positive. Therefore, it’s important to lessen factors that may damage this positive reputation
- Employers may also find it beneficial to conduct a police check on candidates to reduce the risk of theft, fraud, and other criminal activity by them
What are the factors that determine whether you can conduct a job police check on a job applicant in Australia?
In Australia, there are various factors that determine whether an employer can conduct a police check on job applicants. These include the following:
- The type of job: Certain roles, such as those that involve working with children, the elderly or people with disabilities, require mandatory police checks
- Industry standards: Some industries, such as healthcare or finance, may have specific regulations or requirements around police checks
- State or territory legislation: Each state and territory has its own legislation governing police checks. It’s important to be aware of the specific requirements in your jurisdiction
- The job applicant’s consent: Employers must obtain the job applicant’s consent before conducting a police check. They must also inform the applicant of the purpose of the check and how the information will be used
- Relevance to the job: Employers must ensure that the police check is relevant to the job requirements and the level of risk involved
- Privacy and discrimination laws: Employers must comply with privacy and discrimination laws when conducting police checks. They must also ensure that they handle the information obtained from the check appropriately and confidentially
- ACIC requirements: If an employer chooses to conduct a police check, they must comply with the Australian Criminal Intelligence Commission (ACIC) requirements for obtaining and handling criminal history information
As an employer, it’s crucial for you to understand these factors and the legal requirements around police checks to avoid breaching privacy and discrimination laws.
Which types of employment are job police checks permitted in?
The nature of the role and type of industry generally determines whether a police check has legal grounds. The rule of thumb is that it is usually required for jobs involving the following:
- Children
- Vulnerable people, i.e. the elderly and sick (hospitals, nursing homes etc.)
- Security positions
- Positions of trust
- Government roles
- Legal positions like lawyers, police officers, and corrective services
- Social work
- Charities
- Residential or aged care
- Teaching
This list is non-exhaustive and does not include all jobs. However, it’s generally the case that roles requiring a greater need for trust concerning the welfare of others require job police checks. Many of these jobs will require it by law, as outlined on the Australian Criminal Intelligence Commission website.
Nevertheless, this does not mean that any jobs falling outside the scope of trust don’t necessarily also require a check. This can be at the discretion of the employer. In this instance, employers should adhere to the following main requirements:
- The employer is required to inform the job applicant of the need for a police check
- The employer gets the consent of the job applicant to do a police check
- They can prove that the requirement of the police check is reasonable within the context of the role
When to ask for a job police check?
For most jobs, short-listed applicants or those invited to interview should be the only ones requiring a police check. This minimises the following:
- Unneeded and time-consuming work involved with processing many consent forms
- Costs, as police services charge for criminal history checks
- Risking disclosure of confidential information when it’s not required
What are the legal implications of a job police check?
If an employer can’t satisfy the requirements for requesting a job police check, this can result in both discriminatory and privacy breaches. It is vital that employers conduct their hiring processes in a fair and non-prejudicial manner. It is also best practice for employers to be aware of what information an employer can legally request from job applicants and employees.
Furthermore, a failure to adhere to any of Australia’s Privacy Principles (APPs) can have legal consequences. Whilst there are some instances where a clear line can be drawn, there are occasions that blur the boundaries. It is essential for employers to protect themselves, their businesses, and the community.
However, they must also avoid breaching anti-discrimination and privacy laws in the process.
Frequently Asked Questions (FAQs)
What is a police check?
According to the Australian Federal Police, a police check is a process that involves connecting an individual’s information, for example, their date of birth and name, with a centralised index of names using a name-matching algorithm. The purpose is to identify any matches between the individual’s name and date of birth combination with those of individuals who have a police history record. Afterwards, police personnel will examine the name to determine what information can be disclosed in accordance with information release policies and/or applicable spent conviction legislation.
Is a background check the same as a police check?
Background checks and police checks are not exactly the same. This is because there are various types of background checks. Background checks are generally used for different purposes, such as to verify information that a job applicant has included in their job application, such as their educational history, employment history, certification and name.
However, a criminal background check can be used similarly to a police check, as a criminal background check can determine whether an applicant has a criminal record.
How to access a police job check?
You can apply for a national police check online using the Australian Federal Police (AFP) police check webpage. The cost of these digital national police checks is $42.
Conclusion
Ultimately, employers can run job police checks on job applicants. Conducting police checks on job applicants can be a crucial step in ensuring the safety and integrity of your workplace. As an employer, it’s your responsibility to understand and comply with the relevant legislation and regulations surrounding police checks.
If you’re still feeling unsure about when you can run a job police check on a job applicant, you should hire a lawyer for legal advice. This is because job police checks are subject to relevant legislation and information release policies. With the right legal advice, you can avoid legal consequences for breaching regulations and privacy and discrimination legislation.
Get a fixed-fee quote from Australia's largest lawyer marketplace.
