40. Employee Records Exemption

Location of privacy provisions concerning employee records

40.163 The recommended removal of the employee records exemption raises a further issue as to whether privacy provisions should be located in the Privacy Act, workplace relations legislation or elsewhere. At the time of the introduction of the private sector provisions of the Privacy Act, the Australian Government stated that privacy protection for employee records would be ‘more properly a matter for workplace relations legislation’.[251] In contrast, the 2005 Senate Committee privacy inquiry concluded that the most appropriate place to protect employee privacy is in the Privacy Act, rather than in workplace relations legislation.[252]

40.164 Some stakeholders were of the view that the appropriate location for exemption would be in privacy legislation,[253] because this has worked well,[254] would allow users of the Privacy Act to assess their responsibilities and obligations properly, and would promote national consistency.[255] Some stakeholders suggested that the exemption should not be located in the Workplace Relations Act because that legislation does not have universal application,[256] and relocating the exemption would raise unrelated workplace relations concerns.[257]

40.165 Other stakeholders argued that privacy regulation concerning employees’ personal information should be addressed in workplace relations legislation,[258] including because employees’ rights should be contained in a single legislative instrument that deals specifically with employment.[259] For example, AAPT Ltd submitted that all employee-related rights should be incorporated into a single legislative instrument, because separate legislative regimes and overlapping legislation (including state-based workplace surveillance and telecommunications interception legislation) created confusion and made the task of compliance onerous—‘potentially lessening the protection that is otherwise afforded by the existence of these Acts’.[260] The Law Institute of Victoria stated that all aspects of workplace privacy should be regulated in one piece of legislation and a consistent approach should be adopted across states and territories.[261]

40.166 In the ALRC’s view, the existence of the employee records exemption only increases the level of complexity of the Privacy Act. Introducing a further set of privacy principles in a different piece of legislation such as the Workplace Relations Act is unlikely to reduce the complexity of the privacy regime.[262]

40.167 Privacy protection of employee records should be located in the Privacy Act to allow maximum coverage of agencies and organisations and to promote consistency. Provisions regulating the privacy of employee records should not be located in workplace relations legislation because the Workplace Relations Act only applies to specified persons or entities, such as constitutional corporations and persons or entities that engage in constitutional trade and commerce.[263] In addition, employee records are no different from other personal information and therefore should be regulated under the Privacy Act in the same way as other personal information.

[251] Commonwealth, Parliamentary Debates, House of Representatives, 12 April 2000, 15749 (D Williams—Attorney-General), 15752. See also Revised Explanatory Memorandum, Privacy Amendment (Private Sector) Bill 2000 (Cth), 4, [109].

[252] Parliament of Australia—Senate Legal and Constitutional References Committee, The Real Big Brother: Inquiry into the Privacy Act 1988 (2005), [7.36]–[7.37], rec 13.

[253] Retail Motor Industry, Submission PR 407, 7 December 2007 (endorsed by Motor Traders Association of NSW, Submission PR 429, 10 December 2007); ACTU, Submission PR 155, 31 January 2007; Victorian Automobile Chamber of Commerce, Submission PR 100, 15 January 2007; Electronic Frontiers Australia Inc, Submission PR 76, 8 January 2007.

[254] Australian Chamber of Commerce and Industry, Submission PR 219, 7 March 2007.

[255] UNITED Medical Protection, Submission PR 118, 15 January 2007; Victorian Automobile Chamber of Commerce, Submission PR 100, 15 January 2007.

[256] Retail Motor Industry, Submission PR 407, 7 December 2007; Australian Chamber of Commerce and Industry, Submission PR 219, 7 March 2007; Victorian Automobile Chamber of Commerce, Submission PR 100, 15 January 2007.

[257] Australian Chamber of Commerce and Industry, Submission PR 219, 7 March 2007.

[258] Australian Business Industrial, Submission PR 444, 10 December 2007; Law Institute of Victoria, Submission PR 200, 21 February 2007; Australian Government Department of Human Services, Submission PR 136, 19 January 2007; AXA, Submission PR 119, 15 January 2007; UNITED Medical Protection, Submission PR 118, 15 January 2007; AAPT Ltd, Submission PR 87, 15 January 2007.

[259] Law Institute of Victoria, Submission PR 200, 21 February 2007; Australian Government Department of Human Services, Submission PR 136, 19 January 2007; AXA, Submission PR 119, 15 January 2007; UNITED Medical Protection, Submission PR 118, 15 January 2007; AAPT Ltd, Submission PR 87, 15 January 2007.

[260] AAPT Ltd, Submission PR 87, 15 January 2007.

[261] Law Institute of Victoria, Submission PR 200, 21 February 2007.

[262] See Australian Law Reform Commission, Submission to the Australian Government Attorney-General’s Department of Employment and Workplace Relations Review on Employee Records Privacy, 8 April 2004.

[263] The Workplace Relations Act 1996 (Cth) only applies to specified persons or entities that employ, or usually employ, an individual. The specified persons or entities include: a constitutional corporation; the Australian Government; Australian Government authorities; a person or entity (which may be an unincorporated club) that employs (or usually employs), in connection with constitutional trade or commerce, an individual as a flight crew officer, a maritime employee, or a waterside worker; a body corporate incorporated in an Australian territory; and a person or entity (which may be an unincorporated club) that carries on an activity in an Australian territory in Australia: Workplace Relations Act 1996 (Cth) s 6(1).

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