Employment, disclosure and privacy

19. In examining how Commonwealth employment law might better protect the safety of those experiencing family violence, disclosure of family violence emerges as a key issue, both with respect to barriers to disclosure, and where victims do disclose family violence, the way in which those who receive such disclosures handle that information.

20. Victims may wish to disclose family violence to individuals and organisations within the employment law system—such as Job Services Australia (JSA) providers, employers or union representatives—for a range of reasons, including:

• in order to alert them to the impact of family violence on their attendance or performance;

• to seek assistance or access to entitlements; or

• because of safety concerns.

21. As a result, workplaces have the potential to play a critical role in supporting and protecting the safety of victims of family violence. However, victims may be reluctant to disclose family violence because they fear disclosure will jeopardise their job or career, they will be stigmatised, or that their employer will not be responsive.^[12] The ALRC is interested in comment about barriers faced by victims of family violence in disclosing family violence in the employment context.

22. The ALRC also seeks comment in relation to concerns expressed about the potential impact disclosure of family violence may have on the responsibility or liability of those to whom violence is disclosed. For example, union representatives, or individuals in the NT to whom mandatory reporting provisions apply under the Domestic and Family Violence Act 2007 (NT) may have concerns about the potential impact of encouraging disclosure of family violence in employment-related contexts.^[13]

Privacy Act issues

23. When victims of family violence disclose their experiences of family violence to JSA providers, employers or others, privacy issues may arise. The principal piece of federal legislation governing information privacy in Australia is the Privacy Act 1988 (Cth). The Privacy Act regulates the handling of personal information by the Australian Government and the ACT Government—to which 11 Information Privacy Principles apply—and the private sector—to which 10 National Privacy Principles apply.^[14]

24. Under the Privacy Act, the handling of an ‘employee record’ by a public sector employer is treated differently from the handling of such a record by a private sector employer. Section 6 of the Privacy Act defines ‘employee record’ as a record of personal information relating to the employment of the employee. Examples of such personal information include information about the employee, such as terms and conditions of employment, personal details, performance, conduct and hours of employment and leave.

25. To the extent that disclosure of family violence to employers is related to the employment of the employee—for example, for the purposes of obtaining leave or utilising provisions of a family violence clause in an enterprise agreement—it is personal information which constitutes an employee record.

26. Government agencies must handle employee records in compliance with the Privacy Act. However, private organisations are exempt from the operation of the Act where an act or practice is related directly to: the employment relationship between the organisation and the individual; and an employee record held by the organisation.^[15] This exemption is usually referred to as the ‘employee records exemption’.

27. In For Your Information: Australian Privacy Law and Practice, Report 108 (2008), the ALRC concluded that there is no sound policy justification for retaining the employee records exemption and recommended its removal.^[16] Specifically, the ALRC stated that there is a lack of adequate privacy protection for employee records in the private sector, despite the sensitivity of personal information held by employers and the potential for economic pressure to be exerted over employees to provide personal information to their employers. The ALRC also emphasised the disjunction between the obligations owed by private and public sector organisations with respect to the treatment of personal information.

28. To the extent that the employee records exemption creates additional barriers to the disclosure of family violence by private sector employees, this provides further reason for the amendment of the Privacy Act to remove the employee records exemption.