Last year, management and technology consulting firm, Accenture, was reported to have asked its service providers (and potential service providers) to supply detailed breakdowns of their workforce as part of a competitive tender process.
The details related to the gender, religion, sexual preferences, race, political affiliation, marital status and disabilities of the contractors and employees who were, or might be, providing services to Accenture.
The intent behind the request for this information was positive. Accenture wanted to ensure that its service providers were meeting Accenture’s own workplace diversity benchmarks.
What would your business do if it were requested to provide similar information? Would it be prepared to expose itself to legal risk by creating potential privacy and anti-discrimination issues, through requesting this information from its staff? Alternatively, would it lodge a noncompliant tender, without providing this information?
One of the principal objectives of Australian Workplace legislation is to respect and value the diversity of the workforce by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, political belief or activity, religious belief or activity, etc.
However, in addition to attempting to ensure that people are not treated less favourably on account of one of these attributes, the legislation is also aimed at ensuring that information which is not relevant to the individual’s employment/ provision of services is not collected. Accordingly, most Australian employers will not have information on employees’ personnel files relating to these issues.
Under the Commonwealth Privacy Act 1988 ("Act") and related state legislation, there is also significant regulation of personal information. The information requested to be provided in the Accenture tender constitutes personal information if it is collected in a manner in which the individual possessing the attribute can be identified. Of the ten privacy principles contained in the Act, the most fundamental one relates to collection. It stipulates that personal information should only be collected if this is necessary for at least one of an organisation’s functions or activities. The collection must be fair, lawful and not intrusive.
Furthermore, reasonable steps must be taken to ensure that the individual who provides the information is advised of the purpose of collection. Obtaining information relating to an individual’s religion, sexual preferences, race, political affiliation, marital status and disabilities is totally irrelevant and unnecessary for employment purposes in nearly all workplaces (except where the disability might be an OH&S issue).
In addition, information about an individual’s racial or ethnic origin, political opinions, religious beliefs or affiliations, sexual preferences or practices and health also constitutes "sensitive information" in the Act. There is a prohibition on collecting sensitive information unless:
- the individual has consented; or
- it is required by law; or
- other particular specified circumstances exist (eg the information is necessary for public health or safety).
This is not the case in relation to the information requested by Accenture.
Consequently, if your business is presented with a tender opportunity in the future which requires the provision of this type of information, you need to consider very carefully whether it will comply with the tender on these issues. If you do, you will be required to collect information which includes material that employers are discouraged from collecting by Equal Opportunity legislation and that is regulated by Privacy legislation. If you decide to collect the information, then you risk creating a potential minefield of privacy and anti-discrimination issues, unless you put in place a foolproof system that ensures the information as collected on an anonymous basis and remains anonymous.
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.