Employee privacy review

FOLLOWING public concern over how the employee record exemption to the Privacy Act is working in practice, the Federal Government recently launched a discussion paper to examine whether further measures or new approaches are needed to provide privacy protection for employee records

FOLLOWING public concern over how the employee record exemption to the Privacy Act is working in practice, the Federal Government recently launched a discussion paper to examine whether further measures or new approaches are needed to provide privacy protection for employee records.

The Federal Attorney-General’s Department and the Department of Employment and Workplace Relations launched the joint Employee records privacy: A discussion paper on information privacy and employee records, with comments and submissions due by 16 April.

Under amendments to the Privacy Act that came into effect in December 2001, employment records are exempt from the legislation. Since then, The Office of the Federal Privacy Commissioner has received 2,140 telephone enquiries about the employee exemption.

“During that time we have had to decline 45 complaints because of the employee records exemption,” said Federal Privacy Commissioner Malcolm Crompton.

“Employee records often contain sensitive information such as sick leave and wage records.”

Under current arrangements, it can be difficult for employers to understand which employee obligations are covered by the Privacy Act, according to Duncan Giles, special counsel for law firm Freehills.

“One of the interesting things about employee records being exempt is that the exemption is only for things that are both related to an employee record and in the course of an employment relationship,” he said.

“Therefore things like the content of personal emails and probably actions with respect to prospective employees that don’t become employees are not exempt.”

He encouraged HR professionals to read the discussion paper and determine whether or not they were happy with the way the Privacy Act currently exempts employee records.

“They should be putting their submission forward to make sure that point of view is taken into account, so the law doesn’t get changed because they didn’t speak up about whether they were happy with the way it was.”

The Attorney-General and the Minister for Employment and Workplace Relations will review the submissions in order to examine whether there is a need for further regulation.

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