Suitability for employment (Directive 08/23)

1. Purpose

1. Appropriately assessing a person’s suitability for employment helps to ensure the integrity of the Queensland public sector and maintain public confidence. In addition, appropriate assessment ensures safety and security for the Queensland community, particularly children.
2. This directive assists public sector entities to:
   1. conduct suitability assessments of persons employed, or proposed to be employed
   2. implement a risk management strategy for entities performing child-related duties.

2. Authorising provisions

2. Sections 80 and 222 of the Public Sector Act 2022 (the Act).

3. Application

3. This directive applies to:
   1. public sector employees as provided for in section 12 of the Act
   2. public sector entities as provided for in section 8 of the Act
   3. chief executives as provided for in sections 16 and 17 of the Act, in their capacity as the chief executive of a public sector entity or of public sector employees.
4. Unless otherwise stated, clauses 7, 8.1, 8.3, 9, 11 and 13 apply to volunteers, contractors and students engaged in a public sector entity.
5. This directive does not limit or otherwise replace any other law that provides for screening of a person and where relevant, a chief executive must comply with screening requirements under Commonwealth and State legislation (e.g. screening for regulated employment (blue cards), screening under the Disability Services Act 2006, security clearances and other background checking) which are not covered by the Act, or this directive.
6. Screening for regulated employment is provided for under the Working with Children (Risk Management and Screening) Act 2000 (WWC (RM&S) Act) and not the Act or this directive.
7. Section 229 of the Act outlines the relationship between a directive and industrial instrument including how to deal with inconsistencies.
8. Commission Chief Executive (CCE) Directive 07/11: Employment screening is repealed and superseded by this directive.

4. Principles

4. Chief executives are responsible for making decisions under the provisions of chapter 3, part 5 of the Act.
5. Chief executives are required to act in a way that is compatible with the main purpose of the Act by:
   1. treating public sector employees fairly
   2. providing for the employment and administration of the public service
   3. providing for the key rights, obligations and employment arrangements of public sector employees
   4. ensuring a high-performing and diverse workforce, through fair and transparent, merit-based selection processes
   5. maintaining accountability, impartiality and integrity, while supporting the public interest, and when giving advice to the government.
6. Under the Human Rights Act 2019 (HR Act) decision makers have an obligation to:
   1. act and make decisions in a way that is compatible with human rights
   2. give proper consideration to human rights when making a decision under the Act and Public Sector Commissioner (Commissioner) directives.
7. Under chapter 1, part 3 of the Act reframing entities have a unique role in supporting the State government in reframing its relationship with Aboriginal peoples and Torres Strait Islander peoples by fulfilling certain responsibilities. Under section 21, the chief executive of a reframing entity is responsible for ensuring the entity fulfils this role. Chief executives must consider these responsibilities when applying and making decisions under the Act and Commissioner directives.
8. Under chapters 2 and 3 of the Act, chief executives of public sector entities have a duty to promote equity and diversity in relation to employment matters, including in the application of, and making decisions under, the Act and Commissioner directives.
9. In addition to any specific requirements in this directive, chief executives of public sector entities are required to consider ways to support accessibility and inclusion for employees when undertaking processes, or applying provisions, under this directive.

5. Interpretation of directions

5. Chapter 3, part 5 of the Act sets out requirements and a framework for assessing a person’s suitability for employment.
6. A decision maker, when considering a person’s suitability for employment, must comply with the relevant sections of the Act.
7. These directions:
   1. provide for procedural fairness requirements, noting that requirements in this directive do not reduce the obligations on the entity at common law
   2. provide for the circumstances in which a chief executive may decide it is necessary to obtain the criminal history of a person and request a notice of serious disciplinary action
   3. provide guidance for determining relevant duties
   4. establish factors that a chief executive must or may consider when assessing a person’s suitability for employment following criminal history screening or declaration of serious disciplinary action
   5. provide for the types of places a chief executive may decide are places at which services are provided only, or mainly, to a child or children
   6. provide for the types of roles a chief executive may decide involve providing services only, or mainly, to a child or children
   7. provide for the duties that involve contact with a child or children that is of a type, or happens in a context, that may create an unacceptable level of risk for a child or children
   8. establish the information that must be included in a risk management strategy for child-related duties
   9. establish the minimum information that must be included in a notice disclosing serious disciplinary action
   10. should be read in conjunction with the relevant sections of the Act.
8. The requirements set out in these directions are binding and must be followed.

6. Reframing the relationship with Aboriginal peoples and Torres Strait Islander peoples

6. Chief executives of reframing entities must consider the responsibilities under section 21 of the Act relating to supporting a reframed relationship with Aboriginal peoples and Torres Strait Islander peoples, including but not limited to:
   1. promoting cultural safety and cultural capability at all levels of the public sector
   2. working in partnership with Aboriginal peoples and Torres Strait Islander peoples to actively promote, include and act in a way that aligns with their perspectives, when making decisions directly affecting them
   3. promoting a fair and inclusive public sector that supports a sense of dignity and belonging for Aboriginal peoples and Torres Strait Islander peoples
   4. supporting the aims, aspirations and employment needs of Aboriginal peoples and Torres Strait Islander peoples and the need for their greater involvement in the public sector.
7. In the context of promoting cultural safety in suitability for employment processes, the matters a chief executive may consider include, but is not limited to:
   1. recognising culturally significant connections for Aboriginal peoples and Torres Strait Islander peoples involved in the process
   2. ensuring support and communication is appropriate, including during a procedural fairness process
   3. considering any elements of conscious or unconscious bias that may impact an assessment of suitability, including mitigation strategies
   4. consideration of the cultural rights of Aboriginal peoples and Torres Strait Islander peoples under the HR Act.

7. General provisions relating to suitability for employment

7. A chief executive can assess a person’s suitability through a range of mechanisms, including but not limited to:
   1. criminal history (for relevant duties and prescribed duties (which includes child-related duties)
   2. child-related duties
   3. serious disciplinary action.
8. The directive relating to recruitment and selection provides that applicants for public sector roles must be informed of any suitability assessments that may be required to determine the person’s suitability for employment as a public sector employee.
9. A chief executive must take reasonable steps to inform contractors, students and volunteers of any suitability assessments that may be required.
10. Costs associated with obtaining criminal history reports under chapter 3, part 5, division 2 or 4, are to be met by the requesting entity.
11. Costs associated with screening for child-related duties under chapter 3, part 5, division 3 of the Act may be met by the entity at the discretion of the chief executive.

8. Procedural fairness

8. Where a chief executive obtains information in connection with clause 9 (criminal history) or clause 11 (child-related duties) of this directive, prior to making an adverse decision about the person’s suitability for employment, the chief executive must:
   1. provide the person a copy of the information obtained,
   2. invite the person to make written representations about the information obtained, including why the person believes the information obtained should not render them unsuitable for employment,
   3. provide the person with a reasonable opportunity to make written representations under clause 8.1(b).
9. Where a chief executive obtains information in connection with clause 12 (serious disciplinary action) of this directive that may be adverse to the interests of the person’s employment as a public sector employee (adverse information), the chief executive must:
   1. provide the adverse information to the person
   2. invite the person to make submissions about the adverse information prior to the chief executive making a decision about whether the person is suitable to be employed
   3. set a reasonable timeframe for the person to make submissions under clause 8.2(b).
10. A reasonable timeframe under clause 8.1(c) and 8.2(c) is generally 14 days unless the nature and degree of the information necessitates a longer period.

9. Criminal history

9. Chapter 3, part 5, divisions 2 and 4 of the Act provide requirements and obligations in relation to criminal history checks.
10. A chief executive of a public sector entity may obtain a person’s criminal history in the following two circumstances:
    1. Assessment of a person’s suitability for employment in relation to relevant duties (chapter 3, part 5, division 2 of the Act)

       Requirements

       1. the chief executive has determined a role includes a particular duty that is a relevant duty, in accordance with this directive, and
       2. the chief executive engages, or proposes to engage, a person to perform relevant duties; or the chief executive changes, or proposes to change, the duties of a public sector employee to include a relevant duty.
    2. Further assessment of persons issued with a working with children authority (chapter 3, part 5, division 4 of the Act)

       Requirements

       1. the chief executive of a public sector entity engages, proposes to engage, or has engaged, a person to perform a prescribed duty (which includes child-related duties) in the entity, and
       2. the chief executive (working with children) has issued a working with children authority to the person, and
       3. the chief executive (working with children) has advised the chief executive of the public sector entity that a further assessment of the person may be needed to decide whether the person should be engaged to perform the prescribed duty.

       Exclusion

       4. Further assessment under chapter 3, part 5, division 4 of the Act does not apply if the chief executive engages, proposes to engage, or has engaged the person to perform the prescribed duty only under a contract for services, on a voluntary basis, or if the person is a student.
11. Where the requirements in clause 9.2 are met in the respective circumstances, a decision by a chief executive to conduct a criminal history check on a person may be informed by:
    1. screening conducted under other legislation covering criminal history
    2. the scope and purpose of previous screening and whether further screening will provide additional, relevant information
    3. the time elapsed since any previous screening and any monitoring that has been in place
    4. the organisational and occupational values and code of conduct applying to the relevant duties
    5. the perception of public and client confidence in the performance of relevant or prescribed duties, and in the entity.
12. If a chief executive determines that criminal history screening is required, under this directive and the relevant provisions of the Act, the chief executive may ask the person for written consent for the chief executive to obtain the person’s criminal history.
13. If the criminal history check is being undertaken as part of pre-employment screening, written consent can be sought at any time during the selection process for public sector roles but can only be conducted on the person(s) the chief executive proposes to employ.
14. Sections 53 and 67 of the Act relevantly provide how to manage the situation where a person does not consent or withdraws their consent for the chief executive to obtain the person’s criminal history.
15. If the person does provide their consent, sections 54 and 68 of the Act relevantly provide how a chief executive may obtain a report about the person’s criminal history.

Assessment of suitability based on criminal history

16. Upon receipt of a person’s criminal history report, a chief executive must assess the person’s suitability to perform the duties which require screening.
17. Such an assessment must be made on a case-by-case basis taking into account the particular facts of the matter. An assessment of a person’s suitability for employment must not be decided merely on the existence of a criminal history record. An assessment of suitability for employment based on criminal history must comply with the Act and this directive.
18. In making the assessment, the chief executive must consider:
    1. the nature of the offence/s and relevance to the nature of the duties to be performed
    2. any response provided to the chief executive by the person or the person’s representative in accordance with clause 8 of this directive, relating to procedural fairness
    3. whether the person can meet the inherent requirements of the role, in light of the offence/s.
19. Further to clause 9.10 the chief executive may also consider:
    1. the seriousness and frequency of any relevant offence
    2. the amount of time elapsed since any relevant offence happened and the penalty imposed
    3. whether the classification of any relevant offence has changed (for example, is it still a crime?)
    4. any relevant work history of the person
    5. any relevant risks contained in the entities risk management strategy under clause 11.9 of this directive, or another relevant risk management strategy.

Decision on suitability following criminal history screening

20. Where a chief executive is proposing to employ a person to perform relevant or prescribed duties, and the person is determined by the chief executive to be unsuitable to perform those duties as a result of their criminal history, the chief executive is not required to consider the person for employment to perform the duties that required screening.
21. Where a current public sector employee is determined by the chief executive to be unsuitable to perform relevant or prescribed duties as a result of criminal history, the chief executive must ensure the employee does not perform the duties that required screening.
22. If the employee mentioned in clause 9.13 is an existing public sector employee employed in the entity of the chief executive who requested the screening, the employee is to be placed in another role at their substantive classification level or rate of remuneration.

Change in criminal history

23. Sections 73 and 74 of the Act set out obligations for public sector employees to disclose any charge or conviction for indictable offences and for a prosecuting authority to disclose committals, convictions, and other information.

10. Determining relevant duties

10. It is the responsibility of the chief executive to determine that a particular duty is a relevant duty, however a duty is not a relevant duty if it is likely to involve child-related duties or regulated employment.
11. Determining that a duty is a relevant duty must be based on the nature of the duty.
12. Considerations of the nature of the duty can include the type of work being performed. Examples may include:
    1. nature of interactions with customers, including customers that could be considered vulnerable
    2. degree to which the role is a leadership role within the entity
    3. access to personal/confidential information and associated systems
    4. access to security related information
    5. access to drugs and/or weapons
    6. degree of access and/or involvement in finance and procurement matters.
13. Where a duty has been identified as a relevant duty under section 50 of the Act and clause 10.2 of this directive, a chief executive may decide it is necessary to obtain the criminal history of a person in circumstances where employing a person with a criminal history would create a risk to the entity, including the work, service delivery, security, reputation and/or confidence in the integrity of the public sector.
14. A chief executive of an entity who determines their entity performs relevant duties must document the roles and duties deemed to be relevant duties in the entity. Roles can be documented in an entity’s policy, for example.

11. Child-related duties

11. Chapter 3, part 5, division 3 of the Act provides requirements and obligations in relation to screening for child-related duties.
12. Deciding that a duty is a child-related duty is a decision for the chief executive.
13. In making a decision under clause 11.2, the duty is a child-related duty if:
    1. the chief executive decides the duty:
       1. is to be performed at a place at which services are provided only or mainly to children; or
       2. is to be performed in a role involving providing services only or mainly to children; or
       3. involves contact with children that is of a type, or happens in a context, that may create an unacceptable level of risk for children; and
    2. the chief executive decides it is necessary to conduct child-related employment screening.
14. Further to clause 11.3, in deciding that a duty is a child-related duty, the chief executive may consider:
    1. the frequency of contact with children the duties have
    2. the level and degree of supervision of children
    3. whether a child is likely to be alone with the person
    4. whether the person is in a position of trust or authority
    5. whether the child is particularly vulnerable (for example, does the child have a disability, is the child in custody or care under the Child Protection Act 1999).
15. A chief executive of an entity performing child-related duties must document the kinds of places, roles and duties deemed to be child-related duties by the entity. Documentation can be through an entity’s policy, for example.
16. In accordance with the Act, where a chief executive decides a duty is a child related duty and it is necessary to conduct child-related employment screening, the screening is to be undertaken in accordance with chapter 8 of the WWC (RM&S) Act.
17. Following screening for child-related duties, if the person is unsuitable to perform child-related duties in accordance with sections 58 to 62 of the Act, the chief executive must ensure the person does not perform, or does not continue to perform, child-related duties.
18. If the person mentioned in clause 11.7 is an existing public sector employee employed in the entity of the chief executive who determined the screening was required, the employee is to be placed in another role at their substantive classification level or rate of remuneration.

Risk management strategies for child-related duties

19. The chief executive of an entity that performs child-related duties must:
    1. develop, implement and maintain a child and youth risk management strategy ¹ that aims to identify potential risks of harm to children and young people and to implement strategies to minimise these risks
    2. review the risk management strategy on at least an annual basis
    3. ensure that the risk management strategy complies with the minimum requirements specified in the WWC (RM&S) Act
    4. ensure that the action taken to implement a risk management strategy is included in the entities annual report.

    ¹ This provision applies only to the extent that entities are not otherwise legislatively required to implement a risk management strategy under the Working with Children (Risk Management and Screening) Act 2000.

12. Serious disciplinary action

12. Where a chief executive is proposing to employ a person, or second a person, to the entity, who has been assessed as the person best suited to the position in accordance with the directive relating to recruitment and selection, the chief executive may decide that it is necessary to consider any serious disciplinary action taken against the person.
13. In making a decision to request a notice of serious disciplinary action, a chief executive may consider:
    1. the nature of the position to be undertaken
    2. any previous notices provided by the person regarding serious disciplinary action
    3. the time elapsed since any previous notices were provided
    4. whether further disclosure will provide additional, relevant information
    5. the organisational or occupational values and code of conduct applying to the position
    6. the perception of public and client confidence in the performance of the position and the entity.
14. A decision made under clause 12.1 must be documented, including justification for the decision, even where a decision is made not to request a notice of serious disciplinary action.
15. The person must comply with a request to provide a notice stating the particulars of serious disciplinary action to the chief executive. At a minimum, the notice must include:
    1. information about discipline finding/s (including grounds for discipline) that gave rise to the serious disciplinary action
    2. details of any substantiated allegations that gave rise to the finding/s and ground for discipline
    3. the date and/or timing of the conduct and disciplinary process
    4. details of any serious disciplinary action taken as a result of the finding/s made.
16. Where a chief executive decides to request a notice from a person regarding serious disciplinary action, the chief executive is responsible for determining a reasonable time for the notice to be submitted and the format and mode for the person to submit the notice.

Assessment of suitability based on serious disciplinary action

17. On receipt of a notice disclosing particulars of serious disciplinary action taken against a person, the chief executive must consider the person’s suitability for employment in or secondment to the public sector entity.
18. In determining the persons suitability for employment, the chief executive must consider:
    1. the nature of any serious disciplinary action taken against the person and its relevance to the nature of the duties to be performed
    2. any response provided to the chief executive by the person or the person’s representative in accordance with clause 8 of this directive, relating to procedural fairness
    3. the amount of time elapsed since the serious disciplinary action was taken against the person
    4. whether the serious disciplinary action impacts on the person’s suitability for the role.
19. Further to clause 12.7, the chief executive may consider:
    1. the nature, seriousness and timeframe of the conduct related to the serious disciplinary action
    2. whether the notice identifies a pattern of behaviour
    3. any relevant risk contained in the entity’s risk management strategy under clause 11.9 of this directive or another relevant risk management strategy
    4. any relevant work history of the person
    5. any impacts on the duties and responsibilities of the role applied for.

13. Human rights

13. When a chief executive is making a decision not to employ or continue a person’s employment, due to the person being unsuitable for employment because of their criminal history record or notice of serious disciplinary action, the chief executive should ensure a human rights assessment of the decision is undertaken and documented appropriately in accordance with the HR Act.

14. Appeals

14. A current public sector employee may be able to lodge a grievance about a chief executive’s decision not to employ them or to make changes to their employment arrangements as a result of an assessment of suitability for employment. The directive relating to individual employee grievances should be referenced for further information about employee grievances.
15. A current public sector employee who is aggrieved by a decision relating to their suitability for employment may be able to lodge a fair treatment appeal in the Queensland Industrial Relations Commission in accordance with chapter 3, part 10 of the Act.
16. Time limits for starting an appeal are provided for in the Industrial Relations Act 2016 and the Commissioner directive relating to appeals.

15. Records

15. Information obtained through screening activities must be managed in accordance with chapter 8, part 3 of the Act and other relevant legislation including the Information Privacy Act 2009.
16. Any documents, notices, reports or other information obtained through screening activities must be retained and disposed of in accordance with the retention and disposal schedule approved by the relevant chief executive, or the Queensland Government General Retention and Disposal Schedule.
17. Once documents, notices, reports or other information are no longer required in accordance with clause 15.2, they must be destroyed accordance with section 79 of the Act.

16. Transitional provisions

16. Sections 300 and 303 of the Act provide for transitional arrangements in relation to existing requirements to disclose previous history of serious disciplinary action and existing consents to obtain criminal history.

Unless otherwise provided, the terms in this directive have the meaning prescribed in the Act.

Adverse decision has the meaning provided for under section 80(3) of the Act.

CCE directive means a directive issued by the Public Service Commission, Commission Chief Executive under the now repealed Public Service Act 2008.

Chief executive (Working with Children) has the meaning provided for under section 64(3) of the Act.

Child-related duty/duties has the meaning provided for under section 57 of the Act.

Commissioner has the meaning provided for under section 212 of the Act.

Prescribed duty/duties has the meaning provided for under section 63 of the Act.

Procedural fairness is a concept used interchangeably with natural justice and is a right recognised and defined by law that involves two key elements: the hearing rule (the parties shall be given adequate notice of the case against them, and a right to respond) and the bias rule (everyone is entitled to a decision by a disinterested and unbiased adjudicator).

Reframing entity has the meaning provided for under section 20 of the Act.

Regulated employment refer to Schedule 2 Dictionary of the Act.

Relevant duty/duties has the meaning provided for under section 50 of the Act.

Second refer to Schedule 2 Dictionary for the Act.

Serious disciplinary action has the meaning provided for under section 70 of the Act.