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• Employer guidelines
  • Introduction
  • 1. Do you provide child-related employment?
  • 2. Your obligations as an employer
  • 3. Step-by-step guide
  • 4. Relevant employment proceedings
  • 5. Background information
  • 6. Forms
  • Glossary
• Prohibited employment
• Background checks
• FAQs
• Employer-related bodies
• Child-safe child-friendly
• Offender Counsellors
• Commitment to service

 

 

3.1   Recruitment for child-related employment

Before you recruit you should know whether the position is child-related employment.

Job applicants should know in advance if they will be required to declare they are not a prohibited person or require a Working With Children background check. You should make this information available in your job advertisement or information package.

To assist you in determining whether a position is child-related employment it is recommended you complete the form, Is the position child-related employment?, for each position. This form will help you decide whether a position requires a Working With Children background check. In addition, if an estimate of risk is being undertaken on the person in the position the Approved Screening Agency will require you to provide the form at that stage. Keep the form with your records for future reference.

3.2   Prohibited persons

3.2.1   Who is a prohibited person

A prohibited person is a person who is convicted of the following (whether in NSW or elsewhere):

• serious sex offence;
• child-related personal violence offence;
• murder of a child;
• indecency offences punishable by imprisonment of 12 months or more;
• kidnapping (unless the offender is or has been the child's parent or carer);
• offences connected with child prostitution;
• possession, distribution or publication of child pornography; or
• attempt, conspiracy or incitement to commit the above offences.

A prohibited person includes a registrable person under the Child Protection (Offenders Registration) Act 2000.

A person is convicted if a charge against them is proven in court and recorded as such. It includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.

A person employed in child-related employment before 2 January 2007 who has previously been convicted of a child-related personal violence offence is not a prohibited person in relation to their current position.

It is an offence for a prohibited person to work in child-related employment, including in a self-employed capacity. For more information go to What are the offences and penalties?

The only situation in which a prohibited person can work in child-related employment is where all the children with whom the person will have contact are related to:

• the person; or
• the employer, and the person is related to the employer.

Some prohibited persons can apply for a review of their prohibited status. However, a prohibited person who has been convicted of any of the following offences as an adult can not apply for a review of their status:

• murder of a child;
• sexual intercourse with a child under 16 years;
• sexual intercourse with a child 16-18 years if the offender was a guardian, school teacher, coach, health professional or in similar position of providing special care at the time of the offence;
• the production of child pornography; or
• attempt, conspiracy or incitement to commit the above offences.

A review can result in an order declaring that prohibition under the Commission for Children and Young People Act 1998 does not apply to the person. A review can also result in a conditional order declaring that prohibition under the Commission for Children and Young People Act 1998 does not apply to the person subject to specified conditions. Where a conditional order exists, you should ask the person for a copy of the order to confirm that the requirements of the position comply with the conditions of the order.

For more information on applying for a review of prohibited person status go to the Commission for Children and Young People’s website.

3.2.2   When to seek Prohibited Employment Declarations

You must ask all preferred applicants for child-related employment to complete a Prohibited Employment Declaration (attachment 6.4) to declare that they are not a prohibited person. This includes volunteers and students on placement. It is an offence to employ anyone in child-related employment without requiring them to disclose whether they are a prohibited person. For more information go to What are the offences and penalties?

3.2.3   How often to get Prohibited Employment Declarations signed

A Prohibited Employment Declaration (attachment 6.4) must be completed each time a person enters into child-related employment with you.

The Declaration is current while a person remains an employee with you. It is not necessary for employees to complete another Declaration during their term of employment, regardless of the length of time they are employed. For information on people being re-employed on a short-term basis go to Short-term employees.

If you transfer ownership to a new employer, all completed Prohibited Employment Declarations should be handed over to that new employer. The new employer is not required to ask existing employees to complete a Prohibited Employment Declaration again.

If an employee currently engaged in child-related employment becomes a prohibited person, it is their responsibility to vacate that position. You should formally and regularly remind employees of this obligation.

3.2.4   Storing Prohibited Employment Declarations

The employee should return the Prohibited Employment Declaration (attachment 6.4) to you for your records. You must keep the Declaration in a secure location, such as on the employee's personnel file.

3.2.5   How long to keep Prohibited Employment Declarations

You must keep Prohibited Employment Declarations (attachment 6.4) for two years after a person ceases their employment with you. However, as some employers are required to keep personnel records, such as Prohibited Employment Declarations, for longer you should also refer to the relevant legislation or guidelines for your industry.

3.2.6   Commission for Children and Young People may request Prohibited Employment Declarations for auditing purposes

You are not required to submit Prohibited Employment Declarations (attachment 6.4) to an Approved Screening Agency or the Commission for Children and Young People, unless requested for the purposes of undertaking an estimate of risk or auditing and monitoring.

If you are not able to provide the Commission for Children and Young People with a Prohibited Employment Declaration when requested, and you do not have a reasonable excuse, you may be guilty of an offence. For further information, go to Failing to produce information when requested by the Commission for Children and Young People.

Where you provide such information in good faith and with reasonable care as part of the Working With Children Check you are protected from any action, liability or claim.

3.2.7   If a prohibited person applies for child-related employment

If you become aware that a prohibited person has applied for child-related employment, you should refuse them the position.

If you become aware that a person currently in child-related employment is a prohibited person, move them out of child-related employment immediately.

In either situation you must then notify your Approved Screening Agency.

3.3   Do you need to do Working With Children background checks?

3.3.1   Who must be checked?

The Working With Children background check is mandatory for:

• preferred applicants for paid child-related employment;
• ministers, priests, rabbis, muftis or other religious leaders or spiritual officials of religion seeking child-related employment; and
• foster carers.

Working With Children background checks are not available for any other employees or self-employed people.

For further information go to Do you provide child-related employment?

The Commission for Children and Young People can take enforcement action against any employer who does not do the Working With Children background check where it is mandatory. For further information follow the link to What are the offences and penalties?

3.3.2   Who is not checked?

You cannot request a Working With Children background check for preferred applicants for whom it is not mandatory.

You may wish to perform other types of background checks, such as reference checks, as part of your employment screening.

For more information on other checks go to What are other employment screening options?

For more information on recruiting and selection for child-related employment, go to the Commission for Children and Young People's Child-safe Child-friendly resources.

3.3.3   When must you do the Working With Children background check?

The Working With Children background check is a pre-employment check. You must do the check before the person starts a position in child-related employment.

You cannot check existing employees or people at times other than recruitment for child-related employment.

The check is current while a person remains in the same position in child-related employment with you. People returning from leave into the same child-related employment do not need to be rechecked. Existing employees are only checked if they are recruited to a different child-related employment position within the organisation. For example, if a child care worker employed by a council is transferred to another of that council’s child care positions, even in a different child care centre, the council does not need to do a new background check. However, if a council child care worker is appointed as a council youth worker, the council must request a new background check, as this is a different type of employment.

If you transfer ownership to a new employer, the Working With Children Background Check Consent (Attachment 6.5) and Working With Children Background Check Request (Attachment 6.6) forms should be handed over to the new employer. The new employer is not required to recheck existing employees remaining in the same position in child-related employment.

There are special provisions for some people re-employed on a short-term basis in the same kind of child-related employment. For more information go to Short-term employees.

3.3.4   What to do if you need to employ a person urgently

In most cases the Working With Children background check can be completed relatively quickly. Should a situation arise where it is not practicable for the Working With Children background check to be undertaken prior to the commencement of employment, a request for checking must be completed as soon as possible after the person commences. In any case, the request should be sent immediately.

Go to How to obtain a Working With Children background check.

In these cases you must request the employee complete a Prohibited Employment Declaration (attachment 6.4) and you should advise employees that their ongoing employment is conditional upon the satisfactory outcome of the Working With Children background check. You should also consider modifying the work requirements of the new employee until the check is completed. Modifications may include limiting the access of the person to children or providing additional supervision in the interim. As the Working With Children background check process is generally short, any variation to the work will be for a limited period of time.

3.3.5   Short-term employees

If you are employing a person for a period of less than six months you are not required to request the Working With Children background check if:

• you have previously undertaken a Working With Children background check on that person within the last 12 months; and
• the person is being employed in the same kind of child-related employment as they were when the check was undertaken.

The 12 month period starts from the date on the Advice to employers – results of background check letter you will receive from your Approved Screening Agency.

You are also not required to ask the person to fill in another Prohibited Employment Declaration if they have previously completed one within the 12 month period.

For example, an aquatic centre employed a children's swimming instructor for three weeks during January 2007 following completion of a Prohibited Employment Declaration and a Working With Children background check being undertaken. The centre wishes to employ the same instructor again in the same role during October 2007. As the centre has previously requested a Working With Children background check on the instructor within the last 12 months, it is not required to undertake another check at this stage.

The Minister can appoint an employer-related body to request the Working With Children background check for short-term employees on behalf of its employer members.

In order to be appointed as an employer-related body, organisations must first meet the standards set by the Commission for Children and Young People. These standards relate to procedures for joining up member employers, verification of identification, records management and security, disclosure of information, auditing and monitoring requirements and timeframes.

Visit the Commission for Children and Young People's website for contact details of employer-related bodies.

3.3.6   What records are checked in the Working With Children background check

There are three types of records considered in the Working With Children background check: relevant criminal records, relevant apprehended violence orders (AVOs) and relevant employment proceedings.

For further information on relevant records go to Background information - What records are checked in the Working With Children background check?

3.4   How to register for the Working With Children background check

You must register with an Approved Screening Agency (ASA) who will undertake the Working With Children background check on preferred applicants for child-related employment on your behalf.

3.4.1   What are Approved Screening Agencies?

The Minister has appointed Approved Screening Agencies to carry out the Working With Children background check.

3.4.2   Which Approved Screening Agency should you register with?

The Approved Screening Agencies do Working With Children background checks for the following sectors:

Commission for Children and Young People

Ph: (02) 9286 7219 Fax: (02) 9286 7201

• child care and child-minding;
• foster care;
• transport sector (not government school bus services);
• entertainment venues where the clientele is primarily children (not sports venues);
• religious organisations;
• non-government schools (not private educational service providers);
• private tutors (not sports coaches or educational tutors);
• welfare; and
• law enforcement and justice.

Catholic organisations in any of the above sectors should register with the Catholic Commission for Employment Relations.

NSW Department of Education and Training

Ph: (02) 9836 9200 Fax: (02) 9836 9222

• government schools, TAFE colleges and private educational service providers;
• school bus services;
• taxi services for the transport of children with a disability in government schools; and
• homestay service providers.

NSW Department of Health

Ph: (02) 9391 9800 Fax: (02) 9391 9795

• wards of public and private hospitals;
• direct services for children in health or allied health fields;
• health counselling and support services;
• employment agencies for health or allied health staff; and
• ambulances.

NSW Department of Arts, Sport and Recreation

Ph: (02) 9006 3774 Fax: (02) 9006 3900

• sport and recreation clubs or associations;
• sports coaching;
• overnight sport and recreation camps; and
• sport and recreation venues where the clientele is primarily children (such as public swimming pools and leisure centres).

Catholic Commission for Employment Relations

Ph: (02) 9390 5255 Fax: (02) 9267 9303

• Catholic education;
• Catholic welfare;
• Catholic religious organisations; and
• Catholic health services.

If you receive funding from, or are regulated by, one of the Approved Screening Agencies, you should register with that Approved Screening Agency to carry out the Working With Children background check on your behalf.

If you receive funding from, or are regulated by, a government department that is not an Approved Screening Agency, you should register with the Approved Screening Agency that best represents your industry.

If you work across a number of industries, or are funded by a number of Approved Screening Agencies, you should register with the Approved Screening Agency that best represents and understands the industry in which the majority of your work is undertaken.

You can contact the Commission for Children and Young People on 02 9286 7219 or email check@kids.nsw.gov.au for advice if you are not sure which Approved Screening Agency to register with.

For further information go to What you should expect from your Approved Screening Agency.

3.4.3   How do you register with an Approved Screening Agency?

To register, fill out the Employer Registration Form and send it to the relevant Approved Screening Agency.

You must nominate a contact officer within your organisation, or other authorised persons, who can be contacted by the Approved Screening Agency to discuss Working With Children background check requests.

If your details change, such as your address, the contact officer or authorised persons, you must complete the Amendment to Employer Registration Details Form and send it to your Approved Screening Agency.

3.5   How to obtain a Working With Children background check

3.5.1   Identifying the preferred applicant accurately

Before you request a Working With Children background check you must ask preferred applicants to provide documents to support their identity. This must include original documents adding up to a minimum of 100 points as required by the 100 Point Check under the Financial Transaction Reports Act 1988.

You must confirm that you have sighted the required documents on the Working With Children Background Check Request Form. Return the documents to the person once you've done this.

The following lists set out the value of each document according to the 100 Point Check.

70 points

Name of preferred applicant verified from one of the following (more than one document from this list cannot be counted):

• Birth Certificate
• Birth Card issued by the NSW Registry of Births, Deaths and Marriages
• Citizenship Certificate
• Current Australian passport
• Expired Australian passport which has not been cancelled and was current within the preceding 2 years
• Current passport from another country or diplomatic documents.

For a preferred applicant under 18 years, one document from the above list, or the following, is sufficient:

• Identity of the applicant verified by an educational institution, either on a student card or a letter signed by the principal, deputy principal, head teacher, deputy head teacher or enrolment officer, confirming that the applicant currently attends the institution.

40 points

Name and photograph/signature of preferred applicant verified from one of the following (more than one document can be counted):

• Current driver photo licence issued by an Australian state or territory
• Identification card issued to a public employee
• Identification card issued by the Australian or any state government as evidence of a person's entitlement to a financial benefit
• Identification card issued to a student at a tertiary education institution.

35 points

Name and address of preferred applicant verified from any of the following (more than one document can be counted):

• Document held by a cash dealer giving security over property
• A mortgage or other instrument of security held by a financial body
• Document from current employer or previous employer within the last two years
• Land Titles Office record
• Document from the Credit Reference Association of Australia.

25 points

Name of preferred applicant verified from any of the following (more than one document can be counted):

• Current credit card or account card from a bank, building society or credit union
• Local council rates notices
• Current telephone, water, gas or electricity bill
• Foreign driver's licence
• Medicare Card
• Electoral roll compiled by the Australian Electoral Commission
• Lease/rent agreement
• Current rent receipt from a licensed real estate agent
• Records of a primary, secondary, or tertiary educational institution attended by the applicant within the last 10 years
• Records of a professional or trade association of which the applicant is a member.

3.5.2   Requesting consent from the preferred applicant

The Working With Children background check will not be completed on a person without their consent, You must ask preferred applicants for their consent whether they are new to your organisation, or you already employ them and they are the preferred applicant for another child-related position in your organisation.

Preferred applicants must complete the Working With Children Background Check Consent Form which is to be retained by you.

The Commission for Children and Young People may require you to provide a copy of the consent form for auditing and monitoring purposes. If you are not able to produce such information without a reasonable excuse you may be guilty of an offence. For further information, go to Failing to produce information when requested by the Commission for Children and Young People.

3.5.3   How long to keep consent forms

You should keep the Working With Children Background Check Consent Forms (attachment 6.5) for as long as you retain other personnel records.

3.5.4   Information you are required to provide to your Approved Screening Agency

To request a Working With Children background check, you must complete the Working With Children Background Check Request Form and send it to your Approved Screening Agency.

A request will not be processed if:

• the check is for a preferred applicant for whom the Working With Children background check is not mandatory;
• the check is for an existing employee who is not changing to a different child-related employment position;
• you have used the wrong form;
• there is data missing on the form; or
• the form is not signed by an authorised person.

3.6   What happens if the Working With Children background check shows no relevant records exist

Your Approved Screening Agency will notify you using the Advice to employers – results of background check letter if there is no information to suggest that the preferred applicant poses any greater risk to children than any other employee.

You then decide whether or not to employ the person based on the Working With Children background check, findings of interviews, referee checks and any other screening procedure you have used.

All employers who provide child-related employment should adopt child-safe and child-friendly practices to manage their risks to children. For further information go to the Commission for Children and Young People's Child-safe Child-friendly resources.

3.7   What happens if a relevant record exists

If a relevant record exists, your Approved Screening Agency will do an estimate of risk and provide it to you.

3.7.1   Verifying the records

Your Approved Screening Agency will contact you to verify that the position is primary child-related employment.

If you notified a relevant employment proceeding and a risk estimate is being conducted on that person, then an Approved Screening Agency may contact you for further information.

For further information go to What does an estimate of risk take into account?

For further information on what happens if a preferred applicant's relevant records show they are a prohibited person go to If a prohibited person applies for child-related employment.

3.7.2   Providing information to the Approved Screening Agency

Your Approved Screening Agency may contact you as part of undertaking the estimate of risk to gather information, which could include:

• the position description, detailing roles, responsibilities and supervision arrangements;
• the organisation's plan for managing risks to children posed by staff;
• forms such as the Working With Children Background Check Consent Form, Is the position child-related employment? Form and Prohibited Employment Declaration; and
• any other relevant information.

As part of the estimate of risk, an Approved Screening Agency will also contact employers who have notified relevant employment proceedings to obtain further details regarding the nature of such proceedings.

For further information on relevant employment proceedings go to Relevant employment proceedings.

3.7.3   Are you protected when you provide information?

Where you act in good faith and with reasonable care as part of the Working With Children Check you are protected from any action, liability or claim.

However, there are penalties for inappropriate disclosure of information regarding the Working With Children Check. For further information go to Breaching confidentiality.

3.7.4   Making your employment decision

Once the estimate of risk is complete, your Approved Screening Agency will send you a letter informing you of the outcome.

It is your decision whether to employ a person who has been subject to a Working With Children background check. Using all the information you have, including the estimate of risk, you then decide whether it is appropriate to employ the person in the position.

If a person has been checked and an estimate of risk has been undertaken, you should consider:

• the safety and welfare of children as the paramount consideration;
• the estimate of risk outcome provided by the Approved Screening Agency;
• the findings of interviews, referee checks and any other screening procedure you have used; and
• the nature of the position, including the type of contact with children and your organisation's capacity to manage risk effectively.

You may consider making changes in your organisation to make it more child-safe and child-friendly before offering employment.

Where the preferred applicant does not have a relevant record against him or her, but a referee raises concern in relation to child-related employment, you need to make a judgement about the person's suitability for employment. Approved Screening Agencies will not do an estimate of risk for these matters.

3.7.5   When to notify the Commission for Children and Young People about your employment decision

You must notify the Commission for Children and Young People if you decide not to employ the person in child-related employment based on the outcome of the estimate of risk. Where you offer the person another position that is not child-related employment, this is considered rejecting that preferred applicant for child-related employment and you must notify these cases. To do this you should complete the Employment Decision Notification Form and send it to the Commission for Children and Young People.

The Commission for Children and Young People uses this information for auditing and monitoring the Working With Children background checking process only. Identifying information is not released to any person, including future employers.

If you fail to notify the Commission for Children and Young People of an applicant rejected for child-related employment, the Commission may take enforcement action. For further information, follow the link to What are the offences and penalties?