James Zeng, Senior Associate
Recent news reports about the possibility of persons convicted of sex offences being employed in workplaces where minors also work, has caused some employers to review their recruitment processes and the background checks they conduct.
Some employers are unsure as to which type of background check should be conducted and the differences between working with children checks and police or criminal record checks. In particular, some employers have questioned whether they need to conduct working with children checks where they employ both adults and minors (less than 16 years of age) in the same workplace.
Working with Children Checks
The Child Protection (Working with Children) Act 2012 (NSW) defines what “child-related work” is. Child-related work includes work involving children in education, sport, transport services, entertainment and health services. The requirement to obtain a working with children check clearance applies where a “worker” (which extends to employees, contractors, volunteers) undertaking “child-related work’ has “direct contact” with children (defined as physical or face-to-face contact) or is employed in a “child-related role”. The work must be “child-related work” for an employer to register online to verify their workers’ or prospective workers’ working with children check.
Police or Criminal Record Checks
A police or criminal record check may be an alternative avenue for conducting background checks. A police or criminal record check will be mandatory where it is a legislative requirement of the position that employees or job applicants not have a criminal record. Beyond this situation, employers can seek the consent of their employees or prospective employees, but this is limited to where a person’s criminal history is relevant to the inherent requirements of the role. To act otherwise may constitute discrimination in employment on the basis of criminal record.
Our table below outlines some of the differences in New South Wales, in the process between Police/Criminal Record Checks and Working with Children Checks.