Employee Records As Evidence Is Like Playing Snakes & Ladders

records

The following article was submitted as a “Guest Post” by “HardRockTuffNut” and covers employment records and how to access them.

Note this article is written from Queensland perspective & interaction with federal legislation.

Employee Records As Evidence Is Like Playing Snakes & Ladders

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So you have been injured through work. You’re not alone. What do you do next? Well report it & make a claim (after seeing doctor) to be covered for time off & medical expenses. That’s pretty obvious. Then if your employer is agreeable great you’re half way there.

When you’re employer disputes responsibility you will need to prove your claim. If there are no witnesses or they are unwilling to come forward there remains documented evidence. Since the injury was at work most of the documented evidence held by employer would be classed as an employee record. In the case of psychological injury, evidence to support your stressors or factors is vitally important to be clear & undisputed. This is no mean feat when it comes to accessing your personal information as an employee record.

Personal Information in Australia is complex when it comes to information stored about you in & out of work. If it is a government body, private company or small business the application of the Privacy Act 1988 is different. Never the less employee records are exempt under the Privacy Act & do not fall under the Australian Privacy Principles (APPs) unless that information is transferred to a 3rd party outside of the business or agency without your consent or through court order.

The convoluted framework of legislation as it currently stands is that the definition (list) of what is an employee record is defined by the Privacy Act as a means of exclusion. The Fair Work Act states to find definition of employee record in Privacy Act. The definition includes most documents or acts done with reference to work or where you have worked, which is just about everything – Payslips, leave forms, performance reviews, written warnings, medical certificates, progress notes, minutes of meetings, complaints (& in Queensland separate rehabilitation file), etc.

The access to these records if you are covered by Fair Work Act is in Regulations. However one popular view is this access is only for Regulated list which centres around payslips & leave. The definition in Privacy Act is much broader. The Fair Work Ombudsman (FWO) may resist your complaint but it is their responsibility to enforce your workplace right of access to employee records(held on site at the business).

In a case example employee records can show evidence of when a manager was present at work where employer claims manager left by resigning prior to an incident involving same person.

In Queensland workers in Rehabilitation are covered by State law. The law was reviewed not long ago & the regulations for rehabilitation including record keeping was amended into ‘Guidelines for the standard for rehabilitation’. It appears that employers in Queensland are encouraged to keep good records securely by not required. A very regressive move in my opinion. Access falls to FW Act but the FWO is reluctant to enforce.

I thank Director of Office of the Australian Information Commissioner (OAIC) for taking my suggestion to change wording on their website to better reflect ’employee records’

The Australian Law Reform Commission (ALRC) has long held the view that the employee record exemption in the Privacy Act should be removed.

If it is identifiable information about you then you should have access to it & opportunity to control it for non essential purposes. The argument that it is only for administration purposes is a poor one. Sensitive information about others contained in the same document can be redacted. At least you will know it exists & the extent of the records that could later be relied on in court. Even the argument that it may cause harm to the individual requesting is emotive & would need a good explanation.

Additional reads:

Record keeping – Fair Work Ombudsman

Record keeping and pay slips – factsheets – Fair Work Ombudsman



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