Most Read Contributor in Australia, September 2016
Australian employers are increasingly using social media to find
out about candidates for employment. Information obtained from
social media reviews is becoming more accepted as a means for
assessing the cultural fit and aptitude of prospective employees.
However there may be privacy and discrimination law implications
when this information is relied upon to make hiring decisions.
The Privacy Act 1988 (Cth) regulates the way that
certain private sector organisations in Australia collect personal
information in a record and the use that information. Generally,
the Act applies to an organisation that has an annual turnover of
more than $3 million. However it may also apply to organisations
that have an annual turnover under this threshold if they provide a
health service or services to a Commonwealth agency, or they
are a business that sources personal information about individuals
from someone other than the
individual without their consent, or a customer of such a
business receiving that information.
The Privacy Act only applies to an organisation when a record is
created. For example, if a recruiter views information about a
candidate on the Internet but does not make any notes or other
record of that information, the Privacy Act does not apply. Given
the exposure to general protections or discrimination claims from
rejected candidates (see below) it is good practice to document the
information relied upon to reject the candidate.
If the Privacy Act applies, the organisation will need to comply
with certain principles:
only collect information necessary for the purposes of
obtain consent from the candidate to collect the
inform the candidate that they have the right to view the
information and correct it if necessary; and.
secure the information, and destroy it if no longer required
(unless the candidate authorises you to keep it on file).
Another principle is to obtain the personal information by
lawful and reasonable means, in a manner that is not unduly
intrusive. The reported practice of employers demanding login
details for social media accounts as condition for the job
application is likely to contravene that principle, not least
because it is inconsistent with the terms of service of Google and
Federal and State anti-discrimination laws do not regulate the
collection of information about candidates from social media
networks. However the fact that information has been collected and
relied upon in making the decision to reject a candidate may become
relevant if it is alleged that the reasons were discriminatory. For
this reason it is prudent to document the relevant information that
was obtained and used in assessing the candidate. It is also
important that the information collected and record have direct
relevance to the job requirements.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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