Each month we tap into the AHRI:ASSIST resource centre to find the most topical questions members are asking. This month we look at privacy in a variety of situations.
What are the privacy implications in a sale of business situation?
You do not generally need to obtain employee consent to give a prospective buyer of your business access to records of personal information about your employees, provided your employees would reasonably expect that this access would be given. Often at a preliminary stage only aggregated information that is not personal information will be provided to a prospective buyer. It might also be illegal to tell the employees about the sale (for example, due to ‘insider trading’ laws), which is an exemption of the requirement to consent for disclosure.
What are the privacy implications in a workplace injury situation?
Employee consent is not required to provide health information about employees to insurers or rehabilitation providers, or to collect medical certificates for the approval of paid personal leave, if disclosure is required or authorised by other laws such as workers’ compensation legislation or the Fair Work Act (FWA).
What are the privacy implications relating to payroll information?
You do not need employee consent to hand over personal information about employees to a contractor providing training or payroll management, if the employee would reasonably expect this information to be passed on.
Is information contained in a reference accessible?
An ex-employee does not have a right of access to a confidential reference you give about the ex-employee to a prospective employer, if you gave the reference on a confidential basis. However, please note the common law duty not to provide a false, misleading or negligent reference for ex-employees.
If a complaint is made about an employee, can you disclose that to them?
You are not obliged to notify an employee about a written complaint made about them and give them access to it if the complaint was made in confidence to you and it would be an unlawful breach of confidence to disclose it to the employee.
What are the privacy implications of workplace investigations?
You do not have to notify the employee of an investigation into alleged misconduct, or give the employee access to documents relating to the investigation, or seek the employee’s consent before disclosing them to third parties, if the allegations being investigated concern unlawful activity by the employee (for example fraud or harassment) and the use or disclosure of the personal information is a necessary part of your investigation.
For more information on investigations, please see the People Development: Performance Management section of AHRI:ASSIST.
How is privacy managed in situations of union rights of access?
If a union permit holder or inspector has a right to access documents about your employees under the FWA, you will not be able to rely on privacy law to resist production of those documents. However, if the right of access is not available under the FWA, privacy laws may apply, subject to the employee records exemption.
If you’re grappling with an HR issue, AHRI:ASSIST is an HR guidance and support centre, with information sheets, checklists, guidelines, templates and much more.
This article is an edited version. The full article was first published in the June 2015 issue of HRMonthly magazine as ‘AHRI:ASSIST Q&A’. AHRI members receive HRMonthly 11 times per year as part of their membership. Find out more about AHRI membership here.