Privacy in the Workplace Roland Hassall Partner Date 12 November 2015 Overview The right to privacy What is private information Legal principles Workplace surveillance Case Law Compliance strategies ID: 765810
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Privacy in the Workplace Roland Hassall, Partner Date: 12 November 2015
Overview The right to privacy What is private information Legal principles Workplace surveillance Case Law Compliance strategies
The right to privacy? Australians do not have an inherent ‘ right to privacy ’. Privacy is protected through a range of statutory provisions. In the employment space, privacy complaints have increased in frequency Rummery and Federal Privacy Commissioner and Anor [2004] AATA 1221
What can be classified as private? ‘Personal information’ ‘Sensitive information’ ‘Health information’
Legal Principles The 13 Australian Privacy Principles (APPs) are contained in the Privacy Act 1988 and apply to the following organisations: Government agencies Organisations with >$3 million turnover Private health service providers Many small businesses
Key Privacy Principles Australian Privacy Principle 1 — Open and transparent management Australian Privacy Principle 3 — Collection of solicited personal information Australian Privacy Principle 5 — Notification of collectionAustralian Privacy Principle 6 — Use & disclosureAustralian Privacy Principle 10 — Quality of informationAustralian Privacy Principle 11 — Retention & securityAustralian Privacy Principle 12 — AccessAustralian Privacy Principle 13 — Correction
Privacy Principles – In practice An organisation/agency that does not comply will open themselves up to serious civil penalties (civil penalties of up to $1.7 million for corporations and $370,000 for individuals). Case Law C v Commonwealth Agency [2003] PrivCmrA 1 AeroCare Pty Ltd [2014] AICmr 32
Workplace Surveillance Workplace surveillance is regulated on a state by state basis. For example, in NSW: The Workplace Surveillance Act 2005 , prohibits surveillance by any of the following means unless 14 days notice is given: Camera surveillance Computer surveillance Tracking surveillance In Victoria: The Surveillance Devices Act 1999 regulatesListening devicesOptical surveillance devicesTracking devicesData surveillance devices
Case examples Haslam v Fazche Pty Ltd t/as Integrity New Homes [2013] FWC 5593 Thomas v Newland Food Company [2013] FWC 8220 “In my view, there could hardly be an act which strikes at the heart of the employment relationship, such as to shatter any chance of re-establishing the trust and confidence necessary to maintain that relationship, than the secret recording by an employee of conversations he or she has with management."
Case examples (cont.) SF v Shoalhaven City Council [2013] NSWADT 94 information collected must be for a lawful purpose that is directly related to a function or activity of the agency; and the collection of the information is reasonably necessary for that purpose.
Protected Disclosures What is a protected disclosure? In NSW see the Public Interest Disclosures Act 1994 (NSW ) Disclosures of corrupt conduct, maladministration and serious and substantial waste made by public officials What are the privacy obligations in relation to a protected disclosure?
Strategies for Compliance Be aware of the applicable legislative requirements. Be conscious of privacy laws when dealing with employee records Where possible, obtain consent from the person to whom the information relates Ensure information is stored securely, is kept up-to-date and is accurate. Ensure that organisations have a security and data breach plan is in place Implement, maintain and train staff in its policies and procedures
Questions?
Presenter details Roland Hassall, Partner Sydney t: +61 2 9260 2449 e: roland.hassall@sparke.com.au
Addendum – State Privacy Legislation New South Wales: Privacy and Personal Information Protection Act 1998 (NSW) Health Records and Information Privacy Act 2002 (NSW) Surveillance Act 2005 (NSW) Surveillance Devices Act 2007 (NSW)Victoria: Information Privacy Act 2000 (Vic)Health Records Act 2001 (Vic)Surveillance Devices Act 1999 (Vic ) including the Surveillance Devices (Workplace Privacy) Act 2006 (Vic )
Addendum – State Privacy Legislation Queensland: Information Standard 42—Information Privacy (IS 42) Health Quality and Complaints Commission Act 2006 (Qld ) Health Services Act 1991 (Qld ) Information Standard 42A—Information Privacy for the Queensland Department of Health (IS 42A)Western Australia:Freedom of Information Act 1992 (WA)Information Privacy Bill 2007 South Australia: PC012—Information Privacy Principles Instruction
Addendum – State Privacy Legislation Tasmania: Personal Information Protection Act 2004 (Tas ) Australian Capital Territory: Health Records (Privacy and Access) Act 1997 (ACT ) Australian Capital Territory Government Service (Consequential Provisions) Act 1994 (Cth)Northern Territory:Information Act 2002 (NT)
Addendum – State Protected Disclosure Legislation New South Wales: Protected Disclosures Act 1994 Queensland: Public Interest Disclosure Act 2013 Victoria: Protected Disclosure Act 2012 South Australia: Whistleblowers Protection Act 1992 Australian Capital Territory: Public Interest Disclosure Act 2012 Tasmania: Public Interest Disclosures Act 2002 Northern Territory: Public Interest Disclosure Act ( No. 38 of 2008)