With everything and everyone moving online, going paperless and adopting flexible work practices, it’s no wonder employers are collecting more and more personal information, including sensitive personal information, from their employees.

The employee record exemption

At present, an organisation acting in its capacity as the employer (or former employer) of an individual in relation to acts or practices directly related to the employment relationship is exempt from complying with the Privacy Act 1988 (Cth) (the Act). The exemption covers any record of personal information relating to the employment of an employee, including the terms of conditions of employment and the engagement of the employee.[1]

This exemption is likely to change in the near future. The privacy act review report released by the Attorney General’s department on 16 February 2023 (Report) recently concluded there should be greater transparency around employers’ collection and use of employee personal information.[2]

Potential changes to the exemption

The Report did not specify how the exemption would be changed to achieve such transparency and improve privacy protections for employees. That said, there are three options on the table for the employee record exemption:

1. complete removal,
2. modification to improve protections around employee personal information while keeping the employer’s ability to administer the employment relationship: or
3. keeping the exemption ‘as is’ and using other legislation to...

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