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Published on September 2, 2021 AUTHOR - Privacy Research Team
In Australia, privacy obligations regarding the employees’ data are largely derived from the statute as there is no “constitutional” protection of privacy rights. Privacy in Australia is regulated at a federal, as well as, a State level. Due to this, privacy obligations may differ across different jurisdictions, as well as between private and public sectors. In each jurisdiction, privacy may be regulated by specific legislation and also by legislation with respect to freedom of information, health and electronic surveillance. Privacy Act 1988 (Privacy Act) is the most relevant legislation that regulates employees’ personal data with certain exemptions.
In most territories and states of Australia, the privacy regulation is limited to the public
sector. Employers need to be aware of the following legislation for every state
or territory. These include:
The Fair Work Act 2009 of Australia also regulates the relationship between employees and “national system employers”. These are broadly defined in the Fair Work Act, a network of various employers in Australia based on location. This act pertains to the rights of the employee union, giving them access to their personal employment records. It is important to note that unions that access employee records must then comply with the Privacy Act obligations with respect to those records.
The Freedom of Information Act 1982 also gives employees the right to access their documents which are held by federal government agencies or Ministers, other than exempt documents.
The Privacy Act defines “Employee Records” as "a record of personal information relating to the employment of the employee". This can include:
The Privacy Act treats public and private sector employee records differently. It applies to Australian Government and Norfolk Island administration employee records, but the use and disclosure of any employee record a private-sector employer holds aren’t covered by the Privacy Act if the use or disclosure of the record directly relates to the current or former employment relationship. This means an employer does not need to comply with the Privacy Act and Australian Privacy Principles (for example, in relation to the storage, access, use, disclosure and handling of the information) in relation to records about its current and former employees.
However, the exemption does not apply to the collection of personal information about prospective employees.
The personal information of job applicants, including information contained in CVs, references, and background checks, must be dealt with in accordance with the Privacy Act. For example, personal information may only be collected where it is necessary for one or more of the legitimate functions or activities of the business, and must only be used for the purpose for which it is collected. For prospective employees, employers must comply with the following Australian Privacy Principles.
An employer may only collect sensitive personal information about an employer from someone other than the employer if the employer consents, or if the employer is required or authorized by law to collect the information from someone else. Employers can process employee personal information for another purpose if, among other things:
In cases where the employee data falls under a Privacy Act exemption, employers have no obligations under the legislation. This means that the personal data of employees of private organizations’ current and former employees do not fall under the ambit of the Privacy Act.
However, various state and federal level legislation requires that employers retain specific records relating to employees for up to seven years under the Fair Work Regulations 2009.
Australian Privacy Principle 1 requires that employers covered by the Privacy Act must have a clearly expressed and up-to-date privacy policy about the management of personal information by the employer. Such a policy must contain the following information:
For the cross-border transfer of personal data of employees, the Privacy Act requires that the recipient country should have appropriate guidelines and obligations regarding personal data before an employer can transfer data there. The Australian Privacy Principle 8 refers to the transfer of data across borders. This transfer can only be done if the following guidelines are followed:
The “employee record” does not cover contractors and subcontractors when they handle the personal information of the employees of another organization, notwithstanding their contractual arrangements. For example, the employee records exemption is unlikely to apply to organizations that provide recruitment, human resource management services, or medical, training, or superannuation services under contract to an employer. An organization that is a contractor or subcontractor that collects employee records about an individual from an employer will have to comply with the Australian Privacy Principles in handling that information, including the notice requirements in APP 5.
The Privacy Act gives prospective employees in the private sector broad control over the way their personal information is handled. The Privacy Act allows employees to:
Employees can file a complaint regarding interference with privacy to the relevant employer. If the complaint is not resolved, it can be referred to the Office of the Australian Information Commissioner for conciliation. Once this is done, the Australian Privacy Commissioner can apply to the Federal Court for an order requiring the organization to pay a pecuniary penalty for certain privacy breaches under the Privacy Act 1988. Depending on the type of breach, the penalty can range from $525,000 to $2.1 million for a corporate body and from $105,000 to $420,000 for any other entity.
When complying with the Privacy Act, employers should make sure that any employee information stored by the organization is only used and processed in a manner directly relating to the employment. This means that any information collected, stored, used or transferred should only be for the purpose of an employment relationship.
Employers are required to obtain written consent from employees in relation to collecting, using and disclosing their personal and sensitive information collected during the recruitment process. It is advised that employers consider including consent forms in their employment contracts. This will reduce the risk of an employer violating the Privacy Act.
In order for employers to manage their employees' data within Australia, they need to abide by the Privacy Act and other federal and state-level legislation. This law has several requirements when it comes to personal data and organizations need to make sure that they abide by it in order to avoid fines or penalties.
With data growing at an exponential rate, employers will need to recruit the help of automation if they hope to stay in compliance. Certain solutions allow organizations to use artificial intelligence and robotic automation to simplify this process.
Request a demo with Securiti to see how we can help.
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Qatar is the first gulf country that has passed a national data privacy law and has paved the way for all other gulf countries to follow suit. In 2016, Qatar enacted Law no. 13 Concerning Personal Data Protection (the “DPL”). Qatar became the first Gulf Cooperation Council (GCC) member state to issue an “European Style” applicable data protection law. The DPL establishes a certain degree of personal data protection, provides data subject rights, and prescribes the guidelines for organizations for the processing of personal data within Qatar.
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Bahrain has become a part of the countries that have enacted a data privacy regulation to protect the rights of their residents. On 12 July 2018, Bahrain drafted its law on data protection regulation, Law No. 30. This then went on to go into effect on the 1st of August 2019 as the Bahrain Personal Data Protection Law (PDPL) and supersedes all other laws. The PDPL recognizes the rights of individuals to have more control over their personal data and the needs of organizations to collect, use, or disclose personal data for legitimate purposes.
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After the Success of the California Consumer Privacy Act (CCPA) in California, Virginia is now following the same path. The Virginia Consumer Data Protection Act (VCDPA) has been passed and will go into effect on 1st of January 2023. This law is closely designed after the newer California Privacy Rights Act (CPRA) but with a few significant and important differences.
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After the VCDPA in Virginia, Colorado has closely followed suit and has passed their own comprehensive data privacy law to protect the personal data of the residents of Colorado.The Colorado Privacy Act (CPA) was signed into law on the 8th of July, 2021 and has been modelled closely after the VCDPA.
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Saudi Arabia has drafted a data privacy regulation to protect the personal data of individuals in Saudi Arabia. This law was approved by the Council of Ministers in Saudi Arabia and is named the Personal Data Protection Law (the “PDPL”).
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Ghana Data Protection Act 2012 establishes a comprehensive set of provisions governing the collection, processing, use, and protection of personal data by the data controller or data processor.
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Kenya’s Data Protection Act, 2019 (DPA) is based on the framework of the EU’s General Data Protection Regulation (GDPR), making it the third region in East Africa to have enacted and enforced data protection regulations.
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Malaysia’s Personal Data Protection Act (PDPA) was passed by the Parliament of Malaysia on 2 June 2010. The PDPA sets out a complete cross-sectoral framework to protect the personal data of individuals with respect to commercial transactions.
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Oman’s Personal Data Protection Law (Oman’s PDPL) has been published in the country’s official gazette, and it will come into force by February 9, 2023, one year after its issuance which was February 9, 2022. The law applies to any natural person’s personal data including but not limited to their name, location data, identification number, and health-related information.
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Kuwait’s Data Privacy Protection Regulations (DPPR) applies to all public and private Telecommunication Services Providers and related industry sectors who collect, process, and store personal data and user-related content in whole or in part of a data storage system, whether processed inside or outside the State of Kuwait.
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Germany’s Bundesdatenschutzgesetz (BDSG) in German, or the Federal Data Protection Act in English, was enacted in May 2018 to implement the GDPR in Germany.
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The New York State Department of Financial Service Cybersecurity Regulations or 23 NYCRR 500 is a set of 23 cybersecurity requirements mandatory for all financial institutions registered in New York working under its Banking Law, Insurance Law, or Financial Services Law.
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