Privacy law not a workplace law

Austin v Honeywell Ltd [2013] FCCA 662 (28 June 2013)

When an employee declined to provide documentation as part of pre-employment checks, her prospective employer was not contravening a workplace right when it declined to employ her, the Federal Circuit Court has found.

The employer wanted to be sure of identity, the applicant’s right to work in Australia and other issues which identity papers would elicit, but the applicant, citing fears of identity theft, would not furnish these to the company. The applicant argued the failure to employ her was an adverse action based on her entitlement to privacy as “a workplace right”.

But the Court differed, pointing out that the Privacy Act insofar as it relates to the employer-employee relationship, does so tangentially in that the purpose of it is not directly related to the workplace or concern the regulation of the relationship between an employer and employee(s).

In other words, everyone has privacy rights and obligations and this is not confined to the workplace. Further, the Court observed that the legislative privacy principles on which the applicant particularly relied, went well beyond the employer employee relationship.

This case builds on other decisions which have clarified what is considered a workplace right about which a person can claim an adverse action has been taken. The complication in this area of law is the wide description of a workplace law under s.12 of the Fair Work Act which defines such a law as “any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees..”.

Decision-makers should be careful to ensure that any action ‘adversely affecting’ any employee is not taken because of a right which accrues to that employee from a law which regulates the relationship.