August

A recent case has highlighted the need for companies to put strategies in place to protect their businesses from internal fraud. A former company director pleaded guilty to 14 counts of fraud in the Brisbane District Court after being prosecuted by the Australian Securities and Investments Commission. Reports have shown that employees facing difficult financial times can come under increased pressure to commit fraud. Everybody in an organization can help to reduce fraud - but having a risk management strategy in place can be especially helpful. To reduce the risk, companies can: put policies in place which define fraud, put policies in place to detect fraud, regularly review fraud-related policies, and insure against losses resulting from fraud. Employees are especially well-placed to detect fraud, and should feel empowered to do so. It is especially important that they feel they can report any suspicions they have without fear of retribution.

A recent finding by the Australian Human Rights Commission (AHRC) that an employer discriminated against a job applicant by failing to offer him employment as a market analyst because of previous drink-driving convictions, highlights the need for caution when carrying out pre-employment criminal record checks on prospective employees. Australia-wide Federal legislation recognises that discrimination occurs where a prospective employee has been denied employment on the ground of their criminal conviction if the nature of the conviction does not affect the candidate's job requirements. However, the legislation does not go as far as making that discrimination unlawful and although the AHRC can investigate alleged acts of criminal record discrimination, it does not have the power to award compensation or to 'punish' the offending employer. Employers should consider making offers of employment contingent upon a criminal records check satisfactory to the employer. Employers should also avoid a 'zero tolerance' approach to criminal records in the recruitment process.

In prosecutions under the Queensland Work Health and Safety (WHS) laws, the Industrial Magistrate hearing the matter has the discretion to not record a conviction. Often, the object of securing a non-recorded conviction is to protect the Defendant's brand. Importantly, a non-recorded conviction does not need to be disclosed in certain situations (for example in tenders, or in foreign visa applications). Until now the Queensland WHS regulator has published the identity of parties who are convicted, whether a conviction is recorded or not. Recently the Supreme Court in Queensland found that the regulator's publication of a party's details on its website where no conviction was recorded, was unlawful. The court's discretion whether to record convictions when passing sentence will now be considered in greater detail during WHS prosecutions. Parties whose identifying details appear on the Queensland Workplace Health and Safety Prosecution List webpage can require the regulator to remove their details where no conviction was recorded. That would avoid Google type searches identifying them in relation to the conviction.