It is important for business to understand how privacy obligations apply to prospective, current and former employees.

‘Acts or practices’ that involve handling of employee records are usually exempt from the obligations of the Australian Privacy Principles (APPs) found in the Privacy Act 1988 in certain circumstances.

What is an employee record?

An employee record includes any personal information about an employee held by an employer that directly relates to the employee’s employment with your business. Some examples include:

• Terms and conditions of employment
• Performance
• Salary and wages
• Membership of professional bodies or unions
• Disciplinary actions
• Dietary requirements
• Personal financial information.

Not every record will be an employee record and not every use of an employee record will be directly related to a current or former employment relationship. For example, an employer could not sell their employee database to a marketing company for a profit without employee consent – there is no link between that activity and the employment relationship.

Also, just because an employer can do something with an employee’s records does not mean that it should, nor will any permitted usage be in the best interests of the employer/employee relationship.

Who does the employee record exemption apply to?

Currently the records exemption only covers current and past employees. It does not cover volunteers and prospective employees (including those who applied for a job and were unsuccessful).

• To be covered by the Act, a business must:
• Have an annual turnover of more than $3m; or
• Be a ‘health service provider’ (this includes hospitals, surgeries, clinics and pharmacies, but also gyms, weight loss clinics, childcare centres and schools); or
• A business that sells or buys personal information; or
• Contracted services providers under Australian Government contracts; and
• A range of other businesses, as set out in the Act.

Why is the employee records exemption important to my business?

It is important to understand which rules apply to the personal information you hold so your business complies with privacy obligations.

For example, if the employee records exemption applies to an employee record you hold, you would not need to grant access to the employee if they ask for access to the records under APP12. However, if the person asking for their records was a prospective employee whose application was unsuccessful, you may need to grant them access to their records (including items like notes from job interviews).

Employers also have recordkeeping obligation under the Fair Work Act 2009. It is important for employers to keep these records and get advice if they are unsure about how to comply with their Fair Work Act recordkeeping obligations.

What changes could be coming?

The Federal Government recently reviewed Australia’s privacy laws and proposed potential changes to the employee records exemption. The Federal Government is still in the consultation phase about these changes. The proposals being considered include removing the employee records exemption altogether.

If changes are made by the Federal Government, they will impact how your business handles employee information and could lead to penalties for businesses that do not comply.

The Victorian Chamber will help you remain up to date and monitor this space to ensure you understand how these potential changes could impact your business.

How the Victorian Chamber can help

Workplace Relations Advice Line

For assistance on any aspect of your employment obligations, call the Victorian Chamber Workplace Relations Advice Line on 8662 5222. Our experienced team can give you over-the-phone advice about human resources or workplace relations issues.

Workplace Relations Consulting

Our consulting team is available to assist your business navigate the complexities of handling employee information, and can provide you with best practice guidance to ensure you are doing the right thing with your employees’ data.