Reading time: 4 minutes

As an employer, you will likely need to collect certain personal details from your employees. If you do, you should be aware of the laws that apply to this information. These laws include the Privacy Act 1988 and the European Union’s General Data Protection Regulation (‘GDPR’). These laws both apply to Australian businesses, but they have significantly different approaches to how you must treat employee records. This article discusses how you may use your employees’ personal information under these laws.

What Is Employee Personal Information?

Employee personal information, or personal data, is any information that identifies an employee. Many pieces of information in your employees’ records will be personal. 

For example, commonly collected pieces of personal information include an employee’s: 

  • postal address; and 
  • date of birth. 

As well as this clearly personal information, a lot of other data in an employee record will be personal information if it can be used with other data to identify the employee. 

For example, a person’s salary is not personal information in a set of anonymous analytical data. If the salary is recorded under an employee’s name in their file, however, it will be personal information.

An employee’s salary could also be personal information if it is in a list of salaries that makes it easy to attribute to a particular employee. For example, this could be the case if one salary is significantly higher than the others in a list. 

How Can I Use Employee Personal Information Under the Privacy Act?

Most Australian privacy laws are set out in the Privacy Act. These laws do not apply to every business in Australia. Instead, there are tests which determine whether the laws apply.

For example, whether the laws apply depends on whether your business has an annual turnover of $3 million or more.

The Exemption for Employee Records

If the Privacy Act applies to your business, it will regulate how you may collect, hold, use and disclose personal information from any individuals you deal with. Conveniently, however, the Privacy Act includes an exemption for employee records. This exemption means you may collect personal information from employees for the purpose of keeping employee records and managing their employment. However, you must be careful not to use your employees’ personal information for a purpose not directly related to their employment. Doing so may breach Australian privacy laws. 

For example, selling employees’ contact details as part of a marketing database would be considered a breach of the law. 

How Can I Use Employee Personal Information Under GDPR?

The GDPR regulates how you may use your employees’ personal information far more strictly. Unlike the Privacy Act, the GDPR applies to your employees’ personal data in the same way that it applies to the personal data of any other person.

These laws will only apply to Australian businesses in certain circumstances. They may apply to your business if you:

  • have a physical presence in the European Union (‘the EU’); 
  • target individuals in the EU to receive your goods and services; or 
  • monitor the behaviour of EU residents. 

If the GDPR applies to your business, you should ensure you have a clear understanding of your obligations under the law

Under the GDPR, you must have a legal basis to process any personal data you handle.

For example, you may be required by law to collect certain information (e.g. superannuation account information). 

You can also use consent from an employee as a legal basis for collecting a piece of personal data. You may need to do so if the personal data is not clearly linked to a legal obligation (e.g. health information about an employee). 

If you rely on consent, you must ensure that the employee: 

  • knows what they are consenting to; and 
  • agrees to the collection of their personal data. 

The employee’s consent must be a genuine choice. You may wish to use a consent form to obtain consent in these situations. 

Key Takeaways

When you collect personal information from employees, you should consider which privacy laws apply to you. These laws will affect how you process personal data. The requirements under different laws can vary greatly. For example, the Privacy Act contains an exemption for employee records and the GDPR does not.  If you have any questions, contact LegalVision’s online lawyers on 1300 544 755 or fill out the form on this page.

Webinars

Redundancies and Restructuring: Understanding Your Employer Obligations

Thursday 7 July | 11:00 - 11:45am

Online
If you plan on making a role redundant, it is crucial that you understand your employer obligations. Our free webinar will explain.
Register Now

How to Sponsor Foreign Workers For Your Tech Business

Wednesday 13 July | 11:00 - 11:45am

Online
Need web3 talent for your tech business? Consider sponsoring workers from overseas. Join our free webinar to learn more.
Register Now

Advertising 101: Social Media, Influencers and the Law

Thursday 21 July | 11:00 - 11:45am

Online
Learn how to promote your business on social media without breaking the law. Register for our free webinar today.
Register Now

Structuring for Certainty in Uncertain Times

Tuesday 26 July | 12:00 - 12:45pm

Online
Learn how to structure to weather storm and ensure you can take advantage of the “green shoots” opportunities arising on the other side of a recession.
Register Now

Playing for the Prize: How to Run Trade Promotions

Thursday 28 July | 11:00 - 11:45am

Online
Running a promotion with a prize? Your business has specific trade promotion obligations. Join our free webinar to learn more.
Register Now

Web3 Essentials: Understanding SAFT Agreements

Tuesday 2 August | 11:00 - 11:45am

Online
Learn how SAFT Agreements can help your Web3 business when raising capital. Register today for our free webinar.
Register Now

Understanding Your Annual Franchise Update Obligations

Wednesday 3 August | 11:00 - 11:45am

Online
Franchisors must meet annual reporting obligations each October. Understand your legal requirements by registering for our free webinar today.
Register Now

Legal Essentials for Product Manufacturers

Thursday 11 August | 11:00 - 11:45am

Online
As a product manufacturer, do you know your legal obligations if there is a product recall? Join our free webinar to learn more.
Register Now

About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

Learn more about our membership

Jacqueline Gibson
Need Legal Help? Submit an Enquiry

If you would like to get in touch with our team and learn more about how our membership can help your business, fill out the form below.

Our Awards

  • 2020 Innovation Award 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Award 2020 Employer of Choice Winner – Australasian Lawyer
  • 2020 Financial Times Award 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year Award 2021 Law Firm of the Year - Australasian Law Awards
  • 2022 Law Firm of the Year Winner 2022 Law Firm of the Year - Australasian Law Awards