It's only right for employers to conduct an employee background check in the recruitment process. Employers must ensure that they are not hiring someone who has a criminal background or who has a bad record from their previous company. Some common issues found in a comprehensive background check for employees are:
- Pending charges in courts in or out of Australia
- Non-conviction charges
- Disciplinary records relating to abuse of any kind
- Apprehended violence orders (AVOs) or intervention orders
Indeed they would want new hires to be reliable and trustworthy aside from having the right skills and experience. Hence, they must also make sure that they are aware of the laws regarding the questions they can and cannot ask potential workers. This way, they can check an applicant's history, character, and skills without breaching any state laws or regulations about:
- Anti-discrimination laws
- Privacy laws
- Obtaining consent for the background checks
- Criminal convictions
The Privacy Act of 1988 protects all information that an employer gathers while conducting background checks on employees. This covers both the federal, public and private sectors' acquisition, use, storage, and disclosure of personal information. Read on to know more about an employee background check in Australia.
Employee Background Check: Different Types
1. Identity/Criminal Record Check
This type of assessment determines whether the applicant has a criminal record. It entails taking fingerprints, completing the necessary documentation, and results in a check of the applicant's criminal history. Any applicant who is at least 14 years old is eligible to go through an identity/police check.
Court Data Australia is a website where people may look for a person who may have/has a criminal record. All companies are responsible for the people they recruit. Nobody can predict an employee's future performance, and the hiring process may be difficult.
Finding the best hires while confirming their legal suitability for the position is made easier with police clearance. This clearance may or may not reveal whether a person poses a risk to the company as well as other community members. Employers may ask for the original copies of the following documents during an identity check:
- Australian Birth Certificate
- Australian/International Passport
- Australian Visa
- Australian Driver's License
- Immicard
- Magistrate-issued Marriage Certificate.
2. Working With Children Check
There are jobs or volunteer work that mainly involve children and will require a specific type of employment background check. We refer to this assessment as working with children check (WWCC) and it is commonly required in NSW. This clearance is valid for five years and involves a national police check. Here are some common roles and job positions that will require a WWCC:
- Healthcare workers
- School bus drivers
- Nannies/Babysitters
- Private teachers
- Educators and School Teachers
- Child or family counsellors, child psychologists/psychiatrists
- People working in supervised visitation centres
- Social workers
- Any other roles that children are vulnerable to.
The majority of states and territories have laws requiring pre-employment screening for jobs involving children. In Queensland, Victoria, Western Australia, and the Northern Territory, laws require people to apply for certification, in order to work in child-related employment. In these schemes, certain convictions relating to child abuse offences will typically result in automatic disqualification.
New South Wales and South Australia have laws requiring employers in relevant fields to conduct background checks on prospective employees or volunteers. There are regulations that mandate police checks for particular child-related employment in Tasmania and the Australian Capital Territory, where laws have not yet been introduced.
3. Qualifications and Employment History Check
This type of employee assessment will typically involve employers conducting employment history checks on an applicant's educational degrees and past employment experience. Indeed, no employer would want an applicant who provided false degrees and work experience information. The employer should also confirm if any of the certificates or licences listed in the applicant's resume are legitimate.
4. Employment Reference Checks
If you are an applicant for a job, you may have included a references tab in your resume. This usually contains supervisors or coworkers from your past company who can help with reference checks. An employer may get in touch with an applicant's former employer to obtain specific information such as:
- Pending lawsuits
- Attendance issues
- Disciplinary actions
- Work ethic
- Performance
5. Health Assessment or Medical Check
This is quite common in most companies since this helps assess if a person is an alcoholic or drug abuser. Additionally, this type of employee assessment will determine whether they are mentally and/or physically fit for a job. Some companies may also give exemptions to people who had a history of drug and/or alcohol abuse who successfully finished rehabilitation programs.
6. Bankruptcy Check
This type of check, which is almost identical to a credit history check, determines if the applicant has ever filed for bankruptcy. A bankrupt person is unable to pay their outstanding debts. This includes applicants who are currently dealing with bankruptcy-related charges and proceedings. Certain laws may forbid someone from having public or important jobs if they are bankrupt, especially those involving money.
Importance of Employee Background Checks
Of course, it's important to always conduct a background screening on an employee, even if they are the perfect candidate for the job. However, conducting background checks is not always necessary. Usually, the significance of the position dictates whether background checks are necessary. But what are instances where it's possible to exempt a criminal offence? Below is an example:
Case Example
Rick and Jonathan are both applicants for a child psychologist position in Company A. Upon passing the initial assessment, both candidates proceed to a background check. Both applicants consented to the background assessment. The employer then found out that both of the applicants had a criminal record.
Rick was convicted of shoplifting that occurred 5 years ago, while Jonathan was convicted of child abuse 7 years ago. After an assessment, the employer opted for Rick since shoplifting won't pose as many risks if he starts as a child psychologist. On the other hand, Jonathan wasn't hired since his criminal offence is closely related to the position and is arguable more serious in nature.
Seeking Legal Advice From Seasoned Lawyers
An employee background check is always necessary since this reduces the risks in most areas of a company. Doing this can create a peaceful working environment for employees and protect a company from business exploitations. Employers will always exercise caution when hiring the best candidate for a position.
However, what if employers find out that an applicant has faked their identity, has a criminal record, or has pending court proceedings? What if the applicants have contested these allegations? Moreover, what if applicants did not know that their employer is conducting an assessment on their background?
JB Solicitors is here to aid with legal disputes for both employers and employees. Our team of lawyers can aid in making consented background checks on applicants and help defend employees who received wrong allegations of criminal offences. We only provide the best legal advice for employment law matters.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.