21 May 2002

The Privacy Act contains an exemption for some employee records, on the grounds that such matters are covered by workplace relations law and practice. However, this exemption is limited to acts and practices directly related to current and former employment relationships.

It is not clear that the mooted confidentiality clause* would mean that a prospective employer could avoid access obligations under the Privacy Act. Just as importantly, the Privacy Commissioner is disappointed at the suggestion that organisations might seek to avoid their access obligations by including confidentiality requirements when exchanging references about past or prospective employees outside of the scope of the current employee records exemption.

The Commissioner takes the view that the Privacy Act starts with the intention to provide individuals with access to personal information about them and this means that where the employee records exemption does not apply and it is unclear how the law of confidentiality applies to the specific circumstance, organisations will run a risk of breaching the privacy act if they rely on such law to avoid their obligations to provide access under the National Privacy Principles.

Inaccurate referee reports have the potential to affect an individual's ability to gain employment and the access requirement in the privacy legislation may assist in redressing those injustices. In most cases, it is reasonable to expect referees to be able to back up the reports they provide. Fear of being sued is not a good reason to deny individuals their rights under the Privacy Act. To ensure the best person for the job, organisations have an interest in referees providing accurate appraisals and the access and accuracy provisions in the National Privacy Principles seek to facilitate this. Ultimately, the requirement that organisations provide access may increase transparency in the recruitment process and improve the quality of information received about candidates.

* There has been a suggestion that employers use confidentiality clauses when exchanging references about past or prospective employees as a way of protecting themselves against unwanted litigation from unsuccessful job applicants who feel their privacy has been abused during the selection process.