Privacy in the Workplace Roland Hassall, Partner Date: 12 November 2015

2 Overview  The right to privacy  What is private information  Legal principles  Workplace surveillance  Case Law  Compliance strategies

3 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

4 What can be classified as private?  ‘Personal information’  ‘Sensitive information’  ‘Health information’

5 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

6 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 collection  Australian Privacy Principle 6 — Use & disclosure  Australian Privacy Principle 10 — Quality of information  Australian Privacy Principle 11 — Retention & security  Australian Privacy Principle 12 — Access  Australian Privacy Principle 13 — Correction

7 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

8 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 regulates  Listening devices  Optical surveillance devices  Tracking devices  Data surveillance devices

9 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."

10 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.

11 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?

12 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?

14 Presenter details Roland Hassall, Partner Sydney t: e:

15 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)

16 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

17 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)

18 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)