Private sector employers can refuse to disclose the contents of a reference they receive, on the basis that it would have an unreasonable impact on the referrer's privacy. Indeed, employers asked for a reference are covered by the Privacy Act in most circumstances. However, this does not apply to the Commonwealth employer entity, the Australian Public Service (APS).
This means the referrer, if providing a reference for an APS applicant, could be making negative comments about a former employee in the knowledge that the employee can obtain a record of that referral.
While negative comments might create some embarrassment, employers shouldn’t worry too much about their legal exposure arising from negative comments. The referrer will not be liable for any loss to the APS (or the employee) provided the comments are accurate and fair.
Unsuccessful job applicants to the Commonwealth can request to see what their referrers said about them and the agency must comply. Where the references were wholly or partly oral, the agency must create an accurate and complete record of the conversation.
If the applicant considers the reference to be inaccurate, they may request that the information be corrected. If the agency, on reasonable grounds, refuses to make the correction, the applicant can add a statement to the part of the reference that is inaccurate, incomplete, irrelevant or misleading.
When the job application process has ended the agency must take reasonable steps to destroy personal information that it no longer needs, which applies to references.
By Mark Abernethy
Employers should beware of writing references for former employees who are applying to the federal government, because those references can be accessed by the person they refer to.