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PRIVACY NEWSLETTER 3
Implications For Recruitment Of New Private Sector Privacy Legislation

The normal processes applied to the recruitment of new staff are such that the new Privacy Legislation introduces many new responsibilities on to the organisations/persons doing the recruitment.

By definition, the collection of information about candidates' interest in, and suitability for, a vacant position, falls completely within the requirements and intentions of the legislation.

Who Has Obligations Under The Privacy Act?
The Privacy Act provides that the acts and practices of an employee will be treated as the acts and practices of the employer organisation.

The obligations apply to the organisation receiving the personal information. The only exclusion is in respect of the individual who becomes an employee - where the employee record exemption will apply to most information.

The new laws apply to private sector organisations. However, most small businesses with turnover under $3million are excluded for now, unless they trade in personal information.

Do The Obligations Change Where A Recruitment Consultant Is Engaged?
If you recruit direct and receive say 50 applications, then you have new privacy obligations in respect of those 50 individuals from the moment you receive their application, whether it be by email, telephone, mail or any other means.

The trigger point is that you have received personal information about them.

If you use consultants and receive information on just say 3 shortlisted applicants, then your obligations are limited to those individuals, whilst the consultancy will carry the obligations to the full 50 applicants.

What Is The Key Exposure Placed On Me Related To Recruitment?
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
  

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What Are The Penalties If We Do Not Manage This Well?
Privacy Act - where you may be required to pay damages for 'hurt feelings', or be ordered to take a specific action eg. provide access. You may also receive negative publicity damaging your company image.

State Anti-Discrimination Acts - where the Privacy Act will enable unsuccessful candidates access to personal records, interview notes, test results, references etc. related to failed job applications which could be interpreted to suggest that Anti-Discrimination legislation had been broken. This may lead to sizable damages claims, with associated workload, reputation and damages consequences.

A Step By Step Look At A Direct Recruitment Exercise
The interpretation of the legislation can be somewhat esoteric in isolation. We have therefore covered the major issues with a look at a theoretical recruitment exercise.

Let us assume you have published an advertisement in the appropriate newspaper and on the Internet. We progressively receive 50 applications, ranging from the totally unqualified to the excellent candidates.

Receipt Of Resumes
From the moment you receive the personal information relating to each applicant you have Privacy Act obligations to that individual applicant, no matter how qualified they are for the position. The complete list of obligations was included in Privacy Newsletter 2.

To fully cover your obligations you may wish to trigger a procedure whereby the applicant is informed about all the elements of the privacy legislation related to;

• Collection of information
  
• Use and disclosure
  
• Handling of sensitive information
  
• Information quality and storage
  
• Right of access and correction
  

This may be incorporated into a standard 'Collection Statement'.

No annotations should be made on the resume which might seem unprofessional or inappropriate if later shown to the applicant.

Use Of An Application Form
Any information requested must be necessary for the recruitment decision. In some States some information is seen as having the potential to be used for discrimination and should not be asked for.

You must ensure your storage and retrieval procedures are adequate to allow you to give the candidate access if requested. This applies to all documents.

Interview Notes (Telephone Or Office)
It is recommended that all interview notes focus on the facts presented by the applicant in response to questions, facts which have a role to play in the determination of the candidate's suitability for the position.

Similarly you may wish to control the exchange of information in the interview by scripting your own questions in advance. These should be directly aligned to the needs of the position.

You must take reasonable to steps to ensure your records are accurate, complete and up-to-date.

Comments which could be taken out of context at a later time, irrelevant facts or opinions should be avoided by all participants in the recruitment process.

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Assessment & Testing Results
The applicant has a right to see all assessment and testing reports which you collect about him/her. Once again, gratuitous comments on the results would best be avoided.

You may also wish to satisfy yourself with the quality of the processes which you are using to be comfortable that they will stand up to challenge by an unsuccessful candidate.

Reference Checking
Restrict your reference checking to matters of fact. Check the dates, responsibilities, job titles, skills, claimed achievements and reasons for leaving.

In the event that any inappropriate personal information is communicated to you, you should ignore it and not record it.

The candidate has a right to know who you are approaching for information, those that are offered as well as any others you speak to.

The referee should be informed that the content of the reference will be communicated to the candidate if he/she asks for it.

Choosing The Preferred Candidate
Inevitably, this new era of access to candidate related information is going to lead to more visibility of the reasons why individuals were selected or not. You should ensure that your final selection methods, and any accompanying notes, will stand up to scrutiny in the event they are unearthed by an unsuccessful candidate.

Retention Of Personal Information Of Unsuccessful Candidates
In general, you may only use the information for the purpose for which it was collected, or for some secondary purpose which the candidate would inevitably expect. There are therefore limited reasons why you might wish to retain the info after it has been used.

The Act does not define how long information should be kept.

The Act has rules for the retained information related to individual access, security, identification and future use and disclosure.

If the information is to be kept on a database, to allow for potential future vacancies to be filled, you must conform to the requirements of the Privacy Act.

Destruction Of Personal Information Of Unsuccessful Candidates
In view of the personal nature of the information involved, the information should be shredded or incinerated. The normal garbage system would not be interpreted as a suitably secure method of disposal.

The Administrative Burden
In order to be able to fulfil the fundamental individual rights under the privacy legislation, it will be necessary to create procedures which control all the information collected about any individual and ensure it can be retrieved if requested by that person.

The Privacy Officer
To conform with the right of information access, you may deem it desirable to appoint a Privacy Officer within your structure to be the first point of contact for all enquiries. Failing this the candidates will presumably approach the individual who interviewed them for access to their personal records.

See ARS Recruitment Newsletter 4 for a list of possible actions to manage your privacy obligations.

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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