Criminal convictions and the workplace Part 1

Criminal convictions and employment law Part 1
The Australian Human Rights Commission Act has jurisdiction inter alia to investigate complaints of “discrimination” which is defined is sec 3 to include “any distinction, exclusion or preference that has the effect of nullifying or impairing equality of opportunity in employment or occupation and (ii) has been declared by the regulations to constitute discrimination for the purposes of this Act…but does not include any distinction, exclusion or preference … (c) in respect of a particular job based on the inherent requirements of the job; or (d) in connection with employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, being a distinction, exclusion or preference made in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or that creed.”
Regulation 4 of the Australian Human Rights Commission Regulations provides that “ For the purposes of subparagraph (b)(ii) of the definition of discrimination any distinction, exclusion or preference made:
(a) on the ground of:
(i) age; or
(ii) medical record; or
(iii) criminal record; or
(iv) impairment; or
(v) marital or relationship status; or
(vi) mental, intellectual or psychiatric disability; or
(vii) nationality; or
(viii) physical disability; or
(ix) sexual orientation; or
(x) trade union activity; or
(xi) one or more of the grounds specified in subparagraphs (iii) to (x) (inclusive) which existed but which has ceased to exist; or
(b) on the basis of the imputation to a person of any ground specified in paragraph (a);
is declared to constitute discrimination for the purposes of the Act.”
From the perspective of these laws, then it is unlawful for an employer to discriminate against an employee or prospective employee on the grounds of a criminal conviction or convictions unless the employer can demonstrate that the employee or prospective employee is or will be unable to fulfil the inherent requirements of the job. An example may be a serious traffic conviction against the record of a person who is employed to drive passengers. Nevertheless there would need to be a demonstrable link between the conviction and the job and a traffic conviction decades old would not in my opinion suffice.
I will deal with the position from the perspective of unfair dismissal laws in my next post on this subject, in addition to an analysis of the Western Australian (State) laws on the issue.