GUIDE TO POLICE CHECKS. for Employees.
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1 GUIDE TO POLICE CHECKS for Employees
2 How Safe is your Organisation? The 2016 PwC Global Economic Crime Survey found that 33% of organisations have experienced economic crime and almost 50% of the incidents of serious economic crime were committed by internal parties within the organisation. This kind of crime can cause serious organisational damage on employee morale, productivity, culture and reputation. As technology and globalisation advances, the need for due diligence across all industries heightens. WHAT YOU WILL LEARN FROM THIS GUIDE Why it s important that your employer conducts a police check What information police checks include When your potential employer should be conducting police checks Your rights when it comes to the conducting of a police check on you The procedure that employers should follow when a police check reveals a criminal history Risks related to privacy, anti-discrimination and human rights legislation Your obligations to your potential employer Your potential employers should appreciate that they have a duty of care in the recruitment process to ensure safe conduct of their business. Your organisation needs to protect its assets and keep its employees and anyone who comes into contact with their business safe and free from harm. In order to prevent corruption and misconduct, it s vital that your potential place of employment continually assesses risk factors and have a system in place that limits opportunity for crime. The first step in a vigorous system is pre-employment screening. 2
3 Pre-Employment Screening All employers should have some form of pre-employment screening in place to conduct due diligence when recruiting candidates. How in-depth the process is can vary depending on legislation, industry standards, company policies and other factors. However, judicious employers will conduct a variety of checks including references, qualifications, credit and police checks. Hiring the wrong employee can have serious consequences for a business, ranging from continued recruitment and training costs due to poor fit or performance, to fraud, harm to reputation and even litigation. Verifying a candidate s background helps an organisation to spot potential pitfalls prior to making a job offer and saves time in the long run. Police checks are one of the most pivotal parts of a pre-employment screening and are increasingly seen as a necessary tool for many employers. Previously, police checks were most commonly conducted for roles where potential employees would have responsibility for significant resources, access to sensitive information or contact with vulnerable people. Nowadays, more and more employers are incorporating police checks into their pre-employment screening to ensure a more rigorous process, mitigate higher risks and further guard against corruption and other forms of misconduct. 8 THINGS YOUR POTENTIAL EMPLOYER SHOULD BE DOING IF THEY RE CONDUCTING A POLICE CHECK ON YOU They should define the inherent requirements of your role. They should have a written policy that they ve communicated with you. They should comply with their obligations under antidiscrimination and privacy legislation. They should obtain your consent before conducting a police check. They should disclose the results of your police check before making any decisions. They should give you the opportunity to explain your criminal record, should it exist. They should decide on your case as an individual basis and consider all relevant factors. The should document their decision-making process. 3
4 What is a Police Check? A National Police Check Search involves identifying and releasing any relevant Australian Federal Police (AFP) information subject to relevant spent convictions, non-disclosure legislation and information release policies. A Police Check can only be undertaken with the informed consent of the person being checked. The process involves: searching a central index containing the names of persons of interest to police; referring possible match(es) to the relevant police services for evaluation of their records; and issuing a National Police Certificate WHAT DOES A NATIONAL POLICE CHECK INCLUDE? A Police Check either indicates that no records are held or contains information obtained from police agencies that can be disclosed. A National Police Check provides a summary of a person s police history information in Australia and usually includes: court appearances court convictions, including any penalty or sentence findings of guilt with no conviction good behaviour bonds or other court orders charges matters awaiting a court hearing WHAT DOES A NATIONAL POLICE CHECK NOT INCLUDE? National Police Checks do not contain information about spent convictions. A spent conviction is a criminal conviction that has been removed from a person s criminal record because it has lapsed after a period. Whether a conviction is spent will vary on state and federal legislation, but generally a spent finding is a criminal offence older than 5 years if convicted as a child, or an offence older than 10 years in any other case. 4
5 Why Should an Organisation Conduct Police Checks? Police Checks serve to protect an organisation s employees, productivity, performance, resources, clients, culture and reputation. By carrying out Police Checks, an Organisation is showing due diligence and care. It exemplifies that the company values their reputation, team culture and clients. Here are the top reasons why employers conduct Police Checks. Attract and Retain Top Employees In order to build a high-performance culture, companies need to attract and retain the right people with top talent. Having a thorough screening process in place shows that your organisation takes recruiting seriously. Almost 50% of economic crime against a company is committed by internal parties PwC Global Crime Survey Protect company reputation 32% of respondents in the PwC survey cited reputational damage as one of the gravest consequences of economic crime. It only takes one person to tarnish the reputation of an organisation. Once that black mark appears, it can be tough to get rid of. 5
6 Protect Company Culture Corporate respondents in the 2016 PwC Global Economic Crime Survey stated the greatest organisational damage they experienced as a result of economic crime was damage to employee morale. Companies with a highperformance culture will understand that people are the most valuable asset and employee engagement and morale are the driving force behind a successful business. Talent is hard to find; building and maintaining a healthy work culture is even harder to find so it s important that a company looks after it! Save on unneccesary costs Recruiting and training employees is a costly and timely task. Therefore, ensuring that companies have the right candidate for the role is important not only from a cultural perspective but an economic one. Many studies have found that the costs relating to replacing and training an employee can range from tens of thousands of dollars to up to two times the employee s annual salary. This shows how pivotal it is that your potential company conducts a pre-screening, as it means that they won t later end up investing a lot more than they should have if they had been due diligent. Protect data and assets In the age of information technology, data is one of the most valuable assets for many companies. According to the PwC Survey, cybercrime is now the second most reported economic crime, affecting 32% of organisations. Protection of company data and assets is vitally important, as included in this is information about the company, employees and clients. Including a Police Check in pre-employment screenings means that you can feel assured that safety is a top priority in your potential workplace. Play this out in a real-life work scenario and this could mean that you ll be able to comfortably leave your personal belongings on your desk without stressing about them being stolen or not having to worry about being bullied by certain colleagues. Your potential company is giving you the ability to walk into your place of work and be yourself whilst feeling protected. 6
7 How Does an Organisation Conduct Police Checks as Part of Pre-Employment Screening? 1. Identify Inherent Requirements of the Job If a potential employer is required to perform police checks on their employees under legislation, they must follow the guidelines of that legislation. If the organisation is not required to perform police checks, they must first determine the inherent requirements of each position that they would like to perform police checks for. WHAT ARE INHERENT REQUIREMENTS? An inherent requirement is something that is essential to the job and not something peripheral; it could include access to highly sensitive information, interaction with vulnerable clients, control over financial resources or assets and many other things. An organisation shouldn t apply the same standards to all jobs because that could be discriminatory, as job requirements will vary. 32% of respondents cited reputational damage as one of the gravest consequences of economic crime PwC Global Crime Survey If the organisation is not obligated to perform police checks, it is important that they identify the inherent requirements of a job so that they can determine how a criminal record could impact your (the candidate s) ability to fulfil the requirements of the job. The employer must decide what the inherent requirements for the job are and be able to justify it objectively. When an employer determines the inherent requirements of a job, they will only be allowed to take relevant criminal offences into account during the procurement process. However, this will also help potential candidates determine whether to apply for the job or not. 7
8 HOW DOES AN ORGANISATION DETERMINE INHERENT REQUIREMENTS? Before a company can advertise for a position, they must first determine the inherent requirements, as this will impact how the job is advertised and how the recruitment process will unfold. Determining this early on is important as it helps avoid any misunderstandings during recruitment and demonstrates that they company have carefully and objectively considered how a criminal record may impact someone s ability to perform in the role before meeting with specific candidates. Determining these requirements helps a company to ensure that they are not making unwarranted presumptions that a person s criminal record determines their character. Case law states that the mere existence of a criminal record does not determine a person s character. Some key factors that an organisation will consider when determining the inherent requirements of a job are: The key tasks the employee will be performing The circumstance in which the employee will be carrying out key tasks Organisational requirements of the job 69% of respondents had experienced theft, the most common type of economic crime PwC Global Crime Survey Considerations could include: If a criminal record is a barrier to a job where obtaining a license or registration is required. If the job involves one-on-one contact with children or vulnerable individuals. If the job involves any direct responsibility for finance or significant assets. It can be an inherent requirement of a job that an employee be trustworthy and of good character. These are common requirements in public sector employment, industries with specific regulation such as racing or gaming, and in the licensing and registration of specific occupations such as nursing. However, this should be decided on a role by role and case by case basis. An employer should never assume that a criminal record automatically means a person is lacking these characteristics. 8
9 2. Communicate the inherent 3. Obtain consent requirements of the job Once an organisation has determined the inherent requirements of a role, they need to include them in any selection criteria and job information for you, the job applicant. They must be clear about which criteria are essential as opposed to desirable and make sure that any essential elements are set out clearly for you. To allow for a transparent process and avoid any misunderstandings, employers may wish to specify that: The preferred applicant will be asked to consent to a police check. People with criminal records are not automatically barred from applying for the job (unless there is a requirement under the law to do so). Each application will be considered on its merits. The applicant can contact the potential employer to find out information. By doing the above, a company is helping you decide whether or not to apply for the position. For most jobs, a company will only request short-listed applicants complete a police check. This minimises: Excessive and time-consuming administration involved with collecting consent and ordering multiple checks. The expense of ordering multiple checks. The risk of infringing on privacy when information is collected but not required. It is mandatory that an organisation obtains consent from you before conducting a police check in order to comply with Australian Privacy legislation. Australia implemented changes to privacy laws in March 2014 which require an individual about whom information is being collected to be informed of certain things, including the fact that the information is being collected and who is collecting the information. Potential employers should warn you that your employment is dependent on an assessment of the results of your criminal record check. This should be clearly stated on the job application form and explained carefully in the interview. The organisation s police check provider should have a consent form incorporated into their process to ensure you have signed their consent to the check. 9
10 4. Order the Police Check Once you have given consent for a police check to be performed, your potential employer will order a police check through their ACIC accredited provider. The provider will lodge the application form and satisfy your identity by using the 100 points of verification. Your details will be submitted to the National Police Checking Service for processing. This personal information is checked against a central index of names to determine whether there is a match. If there is a match, whether there is any criminal history information that can be released will be checked. It is up to the employer who pays for the police check, however it could be considered best practice that the employer pays to ensure authenticity and consistency. THE CHECKING PROCESS SUBMIT CHECK AUTOMATED SEARCH NO POTENTIAL MATCH? YES 5. Wait for results Ideally, a company shouldn t make a final job offer before the results of a police check are returned. If you begin employment and training, and a criminal record later reveals a relevant conviction, it can have a serious impact on employees in addition to company s wasting resources. Depending on how complex a police check is, it may sometimes take a few days, or even weeks to return. If this happens, it may be because the application has been flagged for further review if it has been matched against somebody on the database with a similar name, gender and/or date of birth. When this occurs, there is a review process that is undertaken where each of Australia s police agencies are consulted to resolve the match. If an employer offers you a position prior to the criminal record check, they should clearly inform you that your employment is conditional on the results of the police check. INITAL CLEAR RELEASED AS NDCO CHECK CLOSED VETTING WITHIN EACH STATE FINAL VETTING RELEASED AS NDCO OR DCO RESULTS RELEASED NDCO No disclosable court outcomes DCO Disclosable court outcomes Adapted from the Australian Human Rights Commission s On the record guidelines. 10
11 6. Consider the Results of a Police Check When a Police Check is being conducted, there are two possible outcomes that will be released. These outcomes are: No Criminal Record - This result indicates that there is either no police history information against you, or no information that can be released. Criminal Record - This result indicates that there is police history information held against you that can be released. It s important to note that if you have a criminal record, you will not be automatically barred from employment. According to the Australian Human Rights Commission Act 1986, unless inherent requirements of a job can t be met, all persons have the right to equal opportunity. If your Police Check is returned with a Criminal Record, there are measures that you can take to ensure equal opportunity in the workplace. PROVIDE MORE INFORMATION If your potential employer believes that your criminal record is relevant, they should give you the opportunity to address it and provide them with further information regarding the circumstances surrounding the conviction. CONTACT THE AUSTRALIAN HUMAN RIGHTS COMMISION If you have been rejected for a position based on the results of your police record and its relevance to the role and you believe that the organisation did not comply with the Australian Human Rights Commission Act 1986, contact the Australian Human Rights Commission and they can advise your best action. FACTORS TO BE CONSIDERED Each case should be decided in its individual context in relation to the position, the organisations policies and any applicable antidiscrimination guidelines. Factors that your potential employer should consider include: Your age at the time of conviction. How recently the crime occurred. Whether there is a pattern of re-offence. The seriousness of the offence and its relation to the specific job. Whether in relation to the offence there was a finding of guilt but without conviction, which indicates a less serious view of the offence by the court. The circumstances in which the offence took place (e.g., did the offence take place in a work, domestic or personal context). Whether your circumstances have changed since the offence was committed (e.g., past drug use). Whether the offence has been decriminalised by Parliament. Your attitude regarding the previous offending behaviour. References from people who knew about the offending history. The sentence imposed by the courts. Evidence of rehabilitation including subsequent work experience and character references. 11
12 Where Should I Get a Police Check From? 58% of HR professionals have dealt with employees who they later discovered lied about their qualifications InfoTrack HR Police Check Survey Your employer may complete the check on your behalf. If not, you should consider the following when ordering a Police Check yourself. Turnaround Times Turnaround times for police check results can vary depending on your provider and the outcome of the check. The ACIC s National Police Check Service aims to process 95% of police checks in 10 business days, noting that: Around 70% of police checks are completed in real-time and the results are returned to the organisation that requested the check within minutes. Around 30% of police checks are referred to one or more police agencies due to similarities in the name of an individual. Sometimes this process takes longer than 10 business days due to the complexity of the check. Your potential employer should ensure that their provider returns checks as soon as they receive them from the NPCS without delay. A slow return time can be the difference between getting top talent or not. 12
13 User Experience Most providers will operate within the standard turnaround time frames, but there can be difference in the process from a user experience point of view. Your potential employer will want a provider that will give them the most streamlined and simple process to order and receive their police checks as efficiently as possible. ACIC Accreditation The Australian Criminal Intelligence Commission (ACIC) partners with Australian police agencies to provide the National Police Check Service to facilitate controlled access to disclosable police history information of an individual from all Australian police jurisdictions. The ACIC has a list of accredited brokers who can provide the NPCS directly. Your potential employer should ensure that they partner with one of these accredited brokers so that both you and them can have full confidence in the integrity of the results. 40% of HR professionals consider attracting and retaining the best employees to be the greatest benefit of preemployment screening InfoTrack HR Police Check Survey Broker Reputation Your potential employer should ensure that the broker they have selected is a reputable organisation. They ll do their research so as to determine whether they are a business that they can rely upon. They ll look into what industries they serve, who their customers are and what their track record is including testimonials and rewards. Customer Service Since police checks make up such a vital part of the recruitment process, organisations will want to make sure that their selected provider has top notch customer service. If they come across any issues or concerns, they want to know that they can access support easily and count on the fast resolution of any problems. 13
14 Steps that Employers Use to Find the Best Practice Police Check Program 1. Find an ACIC accredited partner. 2. Identify the inherent requirements of the role they will conduct police checks for. 3. Have a written police check policy written for their organisation that complies with relevant anti-discrimination and privacy legislation. 4. Communicate the inherent requirements in job advertisements and to any existing employees. 5. Obtain consent from potential employees to conduct a police check. 6. Review the results of the police check: a. If there is no criminal record, proceed with usual recruitment process. b. If there is a criminal record, determine if it is relevant to the role in question (if not, proceed with usual recruitment process). 7. If there is a criminal record that is relevant to the role: a. Disclose the results of the police check to the candidate/employee. b. Give the candidate an opportunity to dispute or address the record. c. Consider factors specific to the case, including how recent the offence is, rehabilitation, circumstances etc. d. Ensure they re abiding by all relevant anti-discrimination legislation. e. Consult a legal consultant before making any decisions. f. Document the decision-making process. ADDITIONAL RESOURCES In May 2017, InfoTrack and Lawyers Weekly conducted a survey and roundtable to gain insight into current pre-employment screening practices. The opinions expressed in both the survey and roundtable point towards the critical need for wider implementation of police and reference checks across both the legal community and the corporate world. Recruiting the right people should always be in the front of business owner s minds. The staff businesses hire are the sole determiners of their company culture, revenue and reputation. CLICK TO LISTEN 14
15 About My Police Check My Police Check is powered by InfoTrack, an Australian Criminal Intelligence Commission (ACIC) accredited police check provider. InfoTrack is also an industry-leading technology provider for corporates. By providing an easy-to-use system that can be accessed on your mobile, tablet or computer, you can submit your police check and have your certificate ed to you. We understand the need for fast turn around times. That s why 70% of our police checks are returned within an hour. If you have any questions, please don t hesitate to get in touch. enquiries@mypolicecheck.com.au 15
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