Employers can only conduct a Nationally Coordinated Criminal History Check with the informed consent of the individual.
Prospective employees may be reluctant to disclose their criminal history for fear that it could compromise their chances of landing the job.
If a prospective employee refuses to consent to a Nationally Coordinated Criminal History Check (NCCHC), a private meeting with a relevant hiring manager or human resources leader should be arranged to explain the organisation’s justification behind the policy.
The meeting could reiterate the company’s strict confidentiality policy on criminal records, making it clear that only select managers will have access to the information.
The prospective employee should now have an understanding of the types of crimes that will be invested as part of the screening process and the protection afforded to them by spent conviction schemes in their respective state or territory
The prospective employee could also be reminded of their right to lodge a complaint with the Australian Human Rights Commission if they face discrimination because of their criminal history and their general protections under the Fair Work Act 2009 (Cth) which prevent employees being dismissed for a prohibited reason.
The relevant hiring manager or human resources leader should explain that not all criminal records will affect their employment conditions and that their record will be assessed sensitively with consideration to a range of reasonable factors. Ideally, the prospective employee will disclose the reasons behind their resistance. If the individual reveals any relevant criminal history at this stage, make sure you encourage an open and supportive dialogue which assesses the disclosed information against the organisation’s criminal record policy.
If the person still refuses to consent to an NCCHC or other background check after going over the above procedures, refer them to your organisation’s policy on failure to undergo a check. It should be explained that failure to comply may result in a determination being made that they are no longer suitable for the role.
