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PRIVACY NEWSLETTER 1
New Private Sector Privacy Legislation

- What Is It & Do I Care?
The 10 National Privacy Principles (NPP's) set out how businesses are able to collect, use, disclose and store information gathered about individuals. They have considerable implications for most businesses, not least of all in the recruitment situation.

Starts from the 21st December 2001
The NPP's will be legally binding on nearly all businesses from 21st December 2001. They represent a major challenge to all businesses where information about individuals is collected.

Penalties
Failure to comply with the Act may result in adverse publicity, orders to perform specific actions and claims for compensation including potential damages for "injury to feelings or humiliation".

Individual Right of Access
The new law gives individuals the power to access and control their information.

Individuals will have the right to:

• Know when their personal information is collected and stored, and how that information is used and disclosed.
• Ensure the accuracy of the information held about them.

Discrimination Actions for Damages is a Major Risk
Perhaps the greatest immediate risk to businesses relates to failure to observe current discrimination legislation within the recruitment process.

It is fundamental that all staff who recruit, both HR and Line Management, are trained in the current legislation as it applies to Discrimination.

Care needs to be taken, in particular, that casual defamatory comments, or comments in breach of discrimination legislation are not made at all.

The privacy legislation will open a new door to evidence of discrimination, which both the valid and opportunist sufferers will be able to utilise.

Employee Records Exemption
The critical exclusion to the Privacy Act relates to 'employee records'. Generally speaking, employees' records for current and past employees are not available to the individual.

However, this exemption could be lost if the employee record is passed to a related entity of the employer, a service provider (eg: outsourced payroll) or is used for a purpose unrelated to the employment relationship.

Recruitment - Major Risks
Recruitment of new staff represents a major exposure of business to the demands of the new privacy legislation.

For employers recruiting directly, the information relating to the chosen employee is exempt.

However, information collected or developed in respect of all candidates who did not get the job will fall inside the privacy legislation.

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Unsuccessful Candidates Can See All Information
Unsuccessful candidates are going to want to know why they were unsuccessful and the new privacy regime will give them the power to see a range of information that has previously been kept confidential:

• Interview notes
  
• Ability test results
  
• Behavioural Assessments
  
• Referees comments
  
• Shortlisting process notes, and
  
• Anything else collected about the individual

Clearly care needs to be taken to ensure that all these records are available and do not breach existing laws, i.e. discrimination.

If you have 50 unsuccessful applicants for a position you have the potential for 50 requests to access the information. This may be used to establish why they were unsuccessful.

Recruitment Training Essential
Staff training in acceptable recruitment practices will be essential to ensure that all staff who have any role in the handling of personal information of candidates are aware of:

• Requirements of privacy legislation:
  • Collection and Use rules
    
  • Storage and Disclosure rules
    
  • Candidate access rights
    
  • Administrative process of information management
    
  • Special rules for 'sensitive information'
  
  
• Discrimination legislation as it relates to employment decisions

The Administrative Burden
In order to fulfil the fundamental individual rights under the privacy legislation, it may be necessary to initiate a communication with every applicant explaining:

• Who is collecting the personal information
  
• How and why it is being collected
  
• How it will be used
  
• Who to contact for access to that information
  

This process will be most safely fulfilled by the creation of a standard 'Collection Statement' for distribution to, and consent from, every applicant whose information you receive.

It Applies to Every Candidate
If you receive any personal information about a candidate then the NPP's apply. The candidates' action in providing you with their name, contact details, suburb, expression of interest in the position or resume, puts you in receipt of their personal information and triggers your responsibilities to provide the information above.

Clearly the more candidates with whom you have contact, the greater the administrative burden and exposure the legislative risks identified above.

See ARS Recruitment Newsletter 2 for an understanding of what the National Privacy Principles say.

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This publication has been prepared exclusively for the information of clients and consultants of ARS Recruitment and should not be relied upon as a substitute for legal advice. The owners and consultants of ARS Recruitment expressly disclaim all and any liability flowing from any act done or omitted to be done in reliance upon the whole or part of the contents of this newsletter