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Data privacy

Australia has stringent data privacy obligations. As a general rule, personally identifiable data may only be processed if it is required for the performance of the employment contract and constitutes an employee record. Certain acts and practices are exempt from the application of Australia’s data privacy laws, but there are strict criteria which must be met for an exemption to apply. Employee records are generally exempt, but this exemption will not apply to documents that come into existence prior to the employment relationship (eg, pre-employment or hire documentation) or to documents relating to any contractors engaged by the business. At the time it collects personal information, the employer is required to provide the individual with a statement setting out the company’s obligations under Australia’s data privacy laws and the individual’s rights. Further restrictions apply for sensitive personal data. Employee records, with the exception of tax file numbers, are not covered by the Australian notifiable data breach regime, which requires notification to the Office of the Australian Information Commissioner (OAIC) and to affected individuals of any data breach that could result in serious harm. However, the OAIC advises that it is good practice for employers to notify employees affected by a data breach so that they may take protective action. The monitoring of individuals and their data is covered by various surveillance legislation in each state or territory. Essentially, surveillance of employees is prohibited in sensitive areas, such as washrooms and change rooms, unless the surveillance device is installed pursuant to a warrant or authorization. Surveillance is permitted in public areas if it conforms with relevant legislation. The monitoring of an employee’s use of a work computer (ie, emails and internet browsing) is governed by specific laws in some states.

Equal treatment for temporary agency workers

The ‘Same Job, Same Pay’ bill and the Fair Work Amendment (Equal Pay for Equal Work) Bill 2022 in Australia focus on ensuring that workers hired through a temporary employment agency during a company’s peak period enjoy the same pay and working conditions as permanent employees doing the same work from the outset of their employment. This approach aims to provide immediate parity in pay and conditions for temporary workers compared to their permanent counterparts. The legislation emphasizes equal treatment from the beginning of the employment period, rather than setting a time frame after which parity in pay and conditions should be implemented. 

Anti-discrimination laws and protection against harassment

Anti-Discrimination Laws

Discrimination is broadly defined as the treatment of an individual or group more favourably or less favourably than another individual or group, on the basis of a specified attribute. Anti-discrimination legislation makes it unlawful to discriminate on the basis of particular attributes. The attributes specified in the legislation in each jurisdiction differ slightly.

Protection Against

Both Federal and State discrimination legislation provide for a process by which complaints of harassment are made to an administrative body which will investigate the complaint and attempt to achieve a settlement between the parties. If the matter does not resolve the complainant may seek to have the complaint heard by a tribunal or court. In the state systems, the matter is typically handled by a board that specialises in dealing with equal opportunity matters (such as the Anti-Discrimination Board of NSW). As a first step, the board will conduct an investigation into the complaint. The complainant’s written complaint is given to the respondent to allow the respondent to prepare a response. Both parties may be asked to provide further information. If the board considers that there appears to have been unlawful conduct and that the matter may be best resolved by the parties discussing the matter face-to-face, the next step is usually a conciliation conference. If the conciliation conference fails to resolve the matter, the complainant usually has the right to refer the complaint to a Tribunal (such as the NSW Civil and Administrative Tribunal in NSW) for a hearing and decision. In the Federal system, complaints are made initially to the Australian Human Rights and Equal Opportunity Commission which will attempt a conciliation between the parties. If this is unsuccessful, the complainant may have the right to make an application to the Federal Court or the Federal Circuit Court.

Pay equity laws

Discrimination in compensation or benefits is prohibited under federal, state and territory legislation. For example, under the Sex Discrimination Act 1984 (Cth), it is unlawful for an employer to discriminate on the grounds of sex relating to the terms and conditions of employment provided to employees, which relevantly includes, but is not limited to, employees’ pay and related benefits in their employment. Furthermore, the Workplace Gender Equality Agency (“WGEA”) is a statutory agency within the Department of Prime Minister and Cabinet that collects mandatory reporting data from all non-public sector employers with 100 or more employees in their corporate structure. 

Checkout other sections to understand employment law practices in Australia

Leave entitlements in Australia

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Recent developments in Australia

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Employment Contracts in Australia

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