National police clearances Vs Federal clearances in Aged Care

[pegasus70]

I work in an Aged Care facility and we always use Police Clearances for all new staff and we ensure all staff renew these every 3 years. I prefer these as they show all court records where as the Federal clearances are name checks only and only show criminal convictions. My problem with this is that they may have been to court but not had a conviction against them.
We have recently had an employee demand that the Federal clearance she has is okay to use for employment in Aged Care and refuse to get a Police Clearance.
Does anyone know if the legislation refers to one over the other?

[BaW]

Pegasus,

An issue to consider in this regard is that under Commonwealth equal opportunity law it is unlawful to discriminate against a person, including in the area of employment, on the grounds of an irrelevant criminal conviction.

In the circumstances you have described, there are two key considerations. 1 - has the person been convicted of an offence which is relevant to their employment, taking into account the nature of their job and the period of time that has lapsed since their conviction; and 2 - you should only consider convictions, not whether a person has been to court but not convicted (the information you currently appear to require).

Thus, if a person has been convicted of an offence which you determine is relevant to their employment, you may take that into consideration in your decision making processes as to an employment candidates suitability for a position, or for the ongoing employment of an existing employee. However, if you consider a persons conviction is not relevant, you should not use that information in your decision making processes.

Furthermore, on this point there is a "reverse onus of proof", that is, if a discrimination complaint were made it is for you as the employer to demonstrate that the recorded conviction was relevant to the person's employment. If you cannot do that, the complainant would likely be successful in their complaint.

Best of luck

[Mark D]

In short, if they've "done the time" and the crime has nothing to do with the type of job or work involved, you can't discriminate against them for having a criminal record.

There are a couple of obvious examples where the conviction could be relevant eg. fraud for a finance role, child sexual assault for a school teacher, traffic offences for a driver, but otherwise it's a tenuous link.