Are Your Pre-Employment Checks Breaching Privacy Laws?

Tuesday July 27, 2021

While it’s true that employers are entitled to conduct pre-employment checks, it’s important that these checks are done carefully and in line with Australian laws. By not paying attention to potential privacy invasions, employers run the risk of falling foul of both the Australian Privacy Act as well as the Fair Work Act.

Such dramatic legal issues can be easily avoided if employers handle pre-employment screenings carefully, sensitively and confidentially. Ideally, pre-employment screening requirements will already be listed in the job description or employment contract.

It’s also important that pre-employment checks directly relate to the role and to the job description. As the Privacy Act states, information can only be collected if it is “reasonably necessary for one or more of the entity’s functions or activities”.

In other words, there must be a reason for requiring the disclosure of certain information, as it relates to the performance of the advertised position.

A pre-employment screening may include:

  • Photo ID check
  • Address check
  • CV check
  • Professional reference check
  • Police check
  • Health or wellness checks
  • Working with Children check

Employers must take care to collect, use and handle sensitive information and disclosures with discretion. If not, the employer runs the risk of breaching the Privacy Act.

The APP sets out the rights and obligations for the collection, use and storage of private and confidential information: “Any personal information collected must be kept private and confidential and individuals have a right to:

  • have their privacy rights respected;
  • be assured their information will not be passed onto a third person unless it is authorised by law or they have given their consent;
  • know what information will be kept and why; and
  • be assured that information will only be used for the purpose it was supplied.”

As such, employers should tread carefully conducting pre-employment checks and only use them to the extent necessary.

How to correctly pre-screen employers:

  • Make candidates aware of pre-employment checks as early as possible – ideally in the job advertisement or at the first interview.
  • Ensure pre-employment screenings relate to the job being advertisement. They must relate to the suitability of the candidate to the position.
  • Meticulously maintain the confidentiality and sensitivity of information obtained during the pre-employment check.

As is clear, pre-employment checks cannot be performed casually or half-heartedly. It’s always best to have a team onside to help ensure these checks are conducted rigorously, correctly and in line with Australian laws. The HR Dept can help – have a chat to us today.

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