The Privacy Act 1988 (Privacy Act) deals with employee records of public sector and private sector employees differently.
The handling of your personal information by a private sector employer is exempt from the Privacy Act if it is directly related to:
This means that a private sector employer does not need to comply with the Australian Privacy Principles (APPs) in the Privacy Act when it handles current and past employee records for something that is directly related to the employment relationship. This also means that an employer does not have to grant you access to your employee records under the Privacy Act.
Workplace laws require a range of information to be made and kept for each employee and enable requests to be made for access to those records. For further information about accessing employee records under workplace laws contact the Fair Work Ombudsman.
It is important to note that the employee records exemption relates to private sector organisations only. Australian, ACT and Norfolk Island government employee records would be covered by the Privacy Act.
The Privacy Act does not specifically cover the issue of workplace surveillance. An employer that conducts surveillance or monitors its staff would be required to comply with relevant laws that apply to the monitoring or surveillance. For instance laws at both the federal and state or territory level apply to the monitoring and recording of telephone conversations, whereas State laws generally regulate the installation and use of CCTV. Some states also have specific workplace surveillance laws.
It may be reasonable for an employer to monitor some of its staff’s activities to ensure staff are performing their duties and using resources appropriately. As such, if your workplace monitors its staff’s use of email, the internet and other computer resources, and you have been advised of that monitoring, it would generally be allowed.
Where the monitoring includes retention of a record of the staff activity, for example, a CCTV video recording or a computer record of emails that does not relate to the employment of the employee, then the APPs may apply.
You can find further information about surveillance and monitoring on our website in the Law enforcement, surveillance and photos section, or y ou can contact the Attorney General’s Department in your state or territory for more information on your state or territory’s surveillance and monitoring laws.
If you applied for a job within the private sector and were unsuccessful, the employee records exemption (discussed above) does not apply and you may be able to ask for access to information related to you.
The employee records exemption does not apply to Australian, ACT or Norfolk Island government agencies, and so you may be able to request access to personal information about you held by these agencies.
If you are applying for a job but have not yet taken it or were not successful, generally you should be able to get access to those reports.
To make sure they get the best person for the job, organisations want referees to provide accurate reports. An inaccurate referee's report could affect your employment opportunities. As far as possible, the information an organisation collects about you should be accurate, complete and up to date. In most circumstances, the Privacy Act gives you a right to access and correct all the personal information an organisation holds about you. This would include a referee's report.
An organisation that is not your current or former employer will need to consider its reasons carefully before deciding not give you access to your referee's report. In some circumstances the Privacy Act would allow it to deny you access, for example, if giving you access would be a breach of the law relating to confidentiality. However, these cases are likely to be quite limited.
(Note: the following websites were not created and are not endorsed by the OAIC. The descriptions below were supplied by the organisations listed.)
Fair Work Ombudsman
The Fair Work Ombudsman is an independent statutory office. Its jurisdiction is set out in the Fair Work Act 2009 (Cth) and its services are free to all workers and employers in Australia. Its main role is to
Fair Work Commission
The Fair Work Commission is the national workplace relations tribunal. It is an independent body with power to carry out a range of functions relating to employment conditions.