New Information Privacy Requirements
From 12 March 2014 new, stricter, information privacy requirements came in to effect when the Privacy Act 1998 was amended by the Privacy Amendment (Enhancing Privacy Protection) Act.
The amendments have created new privacy principles, known as the Australian Privacy Principles (APPs), which replace both the Information Privacy Principles which apply to Federal Public Sector organisations and the National Privacy Principles which apply to Private Sector businesses.
The APPs introduce some new requirements as well as stronger sanctions for non-compliance. The previous exemption from coverage applicable to employee records and the current small business exemption (generally, businesses with a turnover of $3m or less) continue to apply. However, these exemptions may be repealed in the future.
Employers now need to review their privacy and information collection, storage and access of information policies and procedures to ensure compliance with the APPs.
Even though the employee records and small business exemption will continue, we recommend employers comply with the new principles as good practice.
The APPs are designed around the order of the personal information lifecycle. They are grouped as follows:
- Part 1 - Consideration of personal information privacy (APPs 1 and 2)
- Part 2 - Collection of personal information (APPs 3 - 5)
- Part 3 - Dealing with personal information (APPs 6 - 9)
- Part 4 - Integrity of personal information (APPs 10 and 11)
- Part 5 - Access to, and correction of, personal information (APPs 12 and 13)
The following is a summary of some of the more important and relevant points of the APPs:
APP 1 Open and transparent management of personal information
APP 3 Collection of solicited personal information
APP 3 states that consent must be obtained before sensitive information can be collected from an individual and the collection must also be reasonably necessary for one or more of an organisation's functions or activities.
APP 4 Dealing with unsolicited personal information
APP 4 includes new obligations in relation to inadvertently collected personal information. If the information would not have been collected under APP 3 and is not contained in a Commonwealth record, the information must be destroyed or de-identified as soon as practicable.
APP 6 Use and disclosure of personal information
APP 6 introduces exemptions to the previous general requirement that an organisation only use or disclose personal information for the purpose for which the information was collected. The exemptions include when the use or disclosure is reasonably necessary to assist in locating a missing person, to defend or commence a legal claim or for the purpose of confidential dispute resolution.
APP 8 Cross boarder disclosures
APP 8 requires organisations to take reasonable steps to ensure an overseas recipient of information does not breach the APPs in relation to that information. In certain circumstances, a breach by an overseas recipient could be considered a breach of the APPs by the Australian organisation.
APP 10 Quality of personal information
APP 10 strengthens requirements for quality of information. When used or disclosed, personal information must be relevant, accurate, up to date and complete.
APP 12 Access to personal information
APP 12 increases access for the general public. Organisations must respond to requests for access within a reasonable time period and provide access in the manner requested if it is reasonable to do so. Written reasons for refusal to grant access must be provided as well as the mechanisms available to complain about the refusal.
APP 13 Correction of personal information
APP 13 provides that organisations must take reasonable care to correct personal information to ensure it is accurate and up to date and to take reasonable steps to notify organisations that have been provided with the information of a correction made, if requested by the individual.
A Watching Brief - Proposed Changes to the Fair Work Act
As most of you will recall, in the lead up to the Federal election last year the Coalition released its Industrial Relations Policy which outlined proposed changes to the Fair Work Act 2009 (FW Act).
The Federal Government has now introduced the Fair Work Amendment Bill 2014 (Amendment Bill) to Parliament which seeks to make the proposed changes to the FW Act as outlined in the Policy.
A number of the proposed changes are outlined below.
Extending a period of unpaid parental leave
Under the FW Act, employers may refuse an employee's request to extend a period of parental leave for a further period of up to 12 months (capped at 24 months) on reasonable business grounds. The current FW Act requirement is that any request, and any refusal, must be in writing.
The Amendment Bill seeks to insert an additional requirement on employers before refusing any such request. Namely, the proposed amendment requires an employer to give an employee a reasonable opportunity to discuss the request before refusing it. The discussion may be via telephone, but not sms or email.
Payment for unused annual leave
The FW Act currently requires annual leave paid out on termination of employment to be paid at the rate that would have been payable if the employee had taken the period of leave. In the past, this has caused confusion as some modern awards require loading to be paid during a period of leave but excluded from being paid on termination of employment (in breach of the FW Act provision).
The Amendment Bill proposes to clear up this confusion by amending this section so that payment for unused annual leave is to be made at the employee‘s base rate of pay as applicable immediately before dismissal (subject to any more beneficial entitlement in an applicable modern award, enterprise agreement or employment contract). Base rate of pay does not include penalties, loadings, allowances or any other separately identifiable amounts.
Taking or accruing leave while receiving workers’ compensation
Under the Amendment Bill, an employee who is absent from work and receiving workers‘ compensation will not be able to take or accrue leave under the FW Act during the compensation period.
Currently, whether or not leave is able to be taken or accrued during any period of workers' compensation is per the relevant state legislation. The changes under the Amendment Bill will apply regardless of any provision in the state based legislation.
Transfer of business
The Amendment Bill proposes that there will not be a transfer of business where:
- an employee becomes employed by an associated entity of their old employer; and
- the employee sought out that opportunity on their own initiative prior to the termination of their employment with the old employer.
This change is in an attempt to avoid applications having to be made to the Commission to avoid the transfer of industrial instruments between associated entities where an employee seeks out the opportunity.
Fair Work Commission (FWC) hearings and conferences
The Amendment Bill proposes to allow the Commission to dismiss an unfair dismissal application without holding a hearing where:
- the unfair dismissal application is frivolous or has no reasonable prospects of success; or
- where the applicant has unreasonably failed to attend a conference or hearing, comply with a direction or order or discontinue an application after a settlement agreement has been concluded.
The Amendment Bill mandates that before exercising this power, the Commission must invite all parties to provide further information to the Commission to show whether the dismissal of the application is warranted.
Right of Entry
The Amendment Bill proposes to remove the recent changes that commenced on 1 January 2014 and further amend the right of entry provisions in the FW Act by: requiring that permit holders must (once again) comply with reasonable requests by employers to conduct interviews or hold discussions in particular rooms or areas of a work site and to take particular routes to reach those areas;
- extending the power of the Commission to deal with disputes;
- limiting the permit holder's entry rights to hold discussions to premises:
- where the permit holder's organisation is covered by an enterprise agreement applying to work performed on the premises; or
- the permit holder is invited by a person who works on the premises and is a member or prospective member of the permit holder's organisation; and
- removing the obligations on an employer or occupier to organise transport and accommodation arrangements to assist permit holders to exercise entry rights at work sites in remote areas.
Individual Flexibility Arrangements
The Amendment Bill proposes to make the following changes to individual flexibility arrangements (IFA):
- requiring flexibility terms in enterprise agreements to permit flexibility about all five minimum matters listed in the model flexibility term (namely, arrangements about when work is performed, overtimerates, penalty
- rates, allowances and leave loading);
- increasing the period of notice for terminating the IFA from 28 says to 13 weeks;
- inserting a legislative note which states that benefits other than a payment of money may be taken into account when considering whether an employee is better off overall under the IFA;
- excusing an employer from contravening a flexibility term if the employer reasonably believed that the requirements of the term had been complied with; and
- requiring employees that are entering into an IFA to provide a written statement indicating why they believe the IFA meets their needs and leaves them better off.
When will these changes come into effect?
These changes have a while to go before they are implemented. The Explanatory Memorandum to the Amendment Bill indicates that there will be a Senate inquiry into the Amendment Bill and the proposed changes will be reviewed during the Productivity Commission review scheduled to take place this year.
The Amendment Bill is unlikely to be passed until after 30 June 2014, when the composition of the Senatechanges.
When and What - The Support Person
Most savvy employers (or, in the least, their HR officers or advisers) will know that there is an obligation upon employers to let employees bring a support person with them to any discussions that could lead to a dismissal. Some employers even offer employees the opportunity to bring a support person to any disciplinary meeting. Often, employers do this out of an abundance of caution (and in some specific and unique instances that is advisable). More regularly, however, employers do this because of a misunderstanding that the obligation to let employees have a support person in meetings extends to all disciplinary meetings. To be clear, the general obligation (subject, as always, to any disciplinary policy specific to an employer) is to permit a support person only if the discussions could lead to a dismissal.
Another common question that we are asked by our clients is whether a support person is entitled to take an active role in the discussions. Generally, a support person has a role of precisely what the name would suggest - support. That is, to provide emotional support. A support person is not entitled to act as an advocate and is not entitled to speak on the employee's behalf. This view was recently confirmed by a Full Bench of the Fair Work Commission in VATE v de Laps  FWCFB 613, a case where it was alleged (granted, as a small part of the overall proceeding) that an Applicant had been denied procedural fairness in circumstances where (among other things) an employer had insisted upon a support person taking a silent and not an advocacy role in discussions. Of course, discretion should be exercised when applying this general rule as to the role of a support person. In particular, regard should be had to any employer-specific disciplinary policy and also by reference to the individual employee (for instance where an employee is a minor or where there is a language or cultural barrier)