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Developments in privacy

Developments in privacy

There have been some significant changes around Privacy requirements recently that impact on the way that many employers should handle privacy issues.

Firstly, significant amendments to the Australian Privacy legislation came into effect on 12 March 2014. The changes provide additional protections with regards to the use of data and restrict how Australian businesses collect, store and use data. The Privacy Act 1988 now includes a set of 13 Australian Privacy Principles that regulate the handling of personal information by Government agencies and many private sector organisations.

Small businesses with an annual turnover of $3,000,000 or less are mostly exempt from the requirements of the Privacy Act. However this exemption does not apply to any business providing a health service, or businesses that are credit reporting bodies, and businesses meeting certain other criteria specified in the Privacy Act.

Businesses would be well advised to inform themselves of their obligations under the Privacy Act and take any necessary steps to comply. Large fines (up to $1.7M for each contravention) can be applied for breaches of the Act.

In the context of employing staff members, businesses are clearly entitled to collect certain information from employees and potential employees, and may also carry out searches of job applicants’ publicly accessible social media to provide additional information to assist in hiring decisions. However, there is no legal basis for employers to insist that employees or job applicants must provide their social media passwords. Notwithstanding this, recent Fair Work Commission decisions have reinforced the view that employers do have the right to exercise a degree of control over their employees’ social media activities.
In the case of Cameron Little v Credit Corp Group Limited t/as Credit Corp Group, Mr Little was dismissed after he placed an offensive post on his own Facebook page in regard to a new colleague, and also made critical comments on the Facebook page of Christians Against Poverty, a third party organisation with which Mr Little had frequent dealings in his role as a Credit Corp Group employee.

Mr Little maintained that his Facebook posts were private, they were made in his own time and that he did not identify himself on Facebook as a Credit Corp employee. He also stated that his post about the new employee was intended as a joke. He expressed the view that as an individual he had a right, like others, to have a Facebook account and to express his opinion on the internet in his own time, as long as it did not reflect poorly on the Company. However the Christians Against Poverty organisation was fairly easily able to identify Mr Little through his Facebook profile and notified his employer, which conducted an investigation and took the view that Mr Little had breached Credit Corp Group’s social media policy and damaged the organisation’s reputation. The Fair Work Commission agreed, and dismissed Mr Little’s Unfair Dismissal application.

Another recent Fair Work Commission case, Pearson v Linfox Australia Pty Ltd, involved a worker who refused to accept his employer’s social media policy, apparently on the basis that “… as Linfox do not pay me or control my life outside of my working hours, they cannot tell me what to do or say outside of work, that is basic human rights on freedom of speech…”. While the employee’s refusal to accept the employer’s social media polity was not, by itself, sufficient to justify dismissal, Commissioner Gregory made the following statement as part of his decision: “… the establishment of a social media policy is clearly a legitimate exercise in acting to protect the reputation and security of a business. It also serves a useful purpose by making clear to employees what is expected of them. Gone is the time (if it ever existed) where an employee might claim posts on social media are intended to be for private consumption only. An employer is also entitled to have a policy in place making clear excessive use of social media at work may have consequences for employees.”

For more information on your obligations as an employer, contact the Chamber today on 02 6283 5200 or visit www.actchamber.com.au

Greg Schmidt, Director, Workplace Relations ACT & Region Chamber of Commerce & Industry
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