Employee Privacy: Legal Right or Hurdle?

Employees are known to from time to time to allege an invasion of their "constitutional right to privacy".  In such circumstances it is a brave manager that advises these employees that no such "constitutional right" exists.  To assist with the management of such grievances, the provisions in the relevant legislation are summarised in this article.

The Privacy Act
The Privacy Act 1988 (Cth) is the main piece of legislation that regulates the retention and disclosure of personal information held about individuals. Broadly, where personal information about an individual is collected and retained, the Privacy Act (and the National Privacy Principles (NPPs) contained therein), ensure that the individual concerned has access to that information and can correct it.  The NPPS also ensure that the holder of the information does not freely disclose that information to third parties

The Employee Records Exemption
The Privacy Act specifically exempts "employee records" from the NPPs (the Exemption). Employee records are defined as any personal information relating to the employment of a current or former employee. Examples of "employee records" include records containing information about an employee's:

engagement, training, disciplining or termination
terms and conditions of employment
personal and emergency contact details
annual, long service, personal, maternity, paternity or other leave
salary, wages, taxation, banking or superannuation details

Practically, the Exemption allows for the free flow of information handled responsibly between current/former employers and prospective employers regarding a candidate's duties, qualifications, health/ psychometric tests and disciplinary conduct. 

The Limits of the Exemption
The Exemption only applies to current and former employees. Any information about individuals that have been engaged as independent contractors, through labour hire agencies, or as volunteers, will not fall within the Exemption. Any information held about any unsuccessful job applicants (such as notes from interviews or referees' reports) will similarly not be exempted.

Accordingly, a prospective employer must give job applicants access to the information if requested and correct any mistakes notified to them by candidates about that information.  This level of openness has made referees nervous about the provision of references that may result in the candidate being unsuccessful in their application for a position.

Further, the Exemption only applies to information relating to the employment of the employee. The information must be directly related to the employment relationship. Similarly, the act or practice that the holder of the information is engaging in must also be related to the employment. These qualifications seek to reduce the opportunity for misuse of the information. For example, selling information about employee's consumer habits to marketing companies would be unlawful as the information is not an "employee record" and the act of doing so does not relate to the employment.

The Workplace Relations Regulations
The rationale for the Exemption (at the time the NPPs were introduced) was that privacy relating to employment is better dealt with in workplace relations legislation.

The Workplace Relations Regulations 2006 (Cth) specify certain information an employer is required to keep about its employees for a specified period. This includes information about date of commencement, employment classification, rate of pay, superannuation and termination. However, these provisions do not restrict the use or disclosure of this information.

The Workplace Surveillance Act
In NSW, the Workplace Surveillance Act 2005 (NSW) goes some way in protecting employee privacy at work by limiting the use of technology (including video cameras, computers and tracking devices) to monitor employees by:

prohibiting surveillance by employers of employees at any place that they are working unless:
employees have been given at least 14 days notice of such surveillance; or
the employer has a covert surveillance authority
prohibiting surveillance in a change room, toilet facility or shower or other bathing facility at a workplace
providing for the issue of covert surveillance authorities by Magistrates and regulating the carrying out of surveillance, the storage, use and disclosure of covert surveillance records.

The Common Law
The provisions above appear to leave a large body of personal information in "employee records" that employers are seemingly free to disclose about their current or former employees. This should not be treated as a complete freedom by employers.

The common law is defined by its ability and propensity to step in and 'fill the gaps' left, from time to time, by the legislature. Although the position has not been settled definitively by the High Court, recent Australian cases have indicated that there may be a common law right to privacy and that a tort or legal cause of action may arise for an unjustified invasion of privacyor by extending breach of confidence to invasions of privacy.  If employers are seen to be unreasonably exploiting the lenience that is currently allowed for the use and disclosure of employee information, the common law may well step in to remedy any damage that follows.

[Source: article by Fay Calderone, Human Capital; Magazine, May 2008]