In Australia, employers have a legal obligation to provide certain records to current and former employees and to retain those records.
Disputes between employers and employees in the workplace are common. When disputes arise, employers often deny access to personal records.
Both employees and employers need to know their legal obligations when requesting, accessing, creating, storing and maintaining employment-related records.
In this article, Farrah Motley, Legal Principal of Prosper Law, explains the following:
What are an employer's record-keeping obligations?
Employers in Australia are required to retain personnel files for 7 years, and:
in a form that can be easily accessed by a Fair Work Inspector if required;
in a legible form;
in plain English;
to the knowledge of the employer are true and accurate.
Employee files are to be kept private and confidential. Not everyone should have access to them.
Certain individuals, including the employee, the employer, other employees, Fair Work inspectors, and representatives of organisations (e.g., unions), are authorised to access employee records, including personal information.
Employment records must be kept by employers, including the following information:
General records must include the following:
employer's Australian Business Number (ABN) (if any);
name of employee;
date the employee commenced work; and
type of employment (full or part-time, permanent, temporary or fixed-term).
Pay and Superannuation Contribution Records
Pay records must contain the following:
the employee's rate of pay;
gross and net amounts paid and all deductions from the gross amount; and
details of any bonuses, supplements, penalties, or other monetary allowances or separately identifiable entitlements paid.
For employers who are required to keep records of superannuation contributions, the records should include the following:
amount of contributions made;
date of contribution;
period of contribution;
the name of the fund; and
records of an employee's election to pay their superannuation contributions into a particular fund and the basis on which the employer becomes liable to contribute.
Note: An employer who contributes a share to a defined benefit fund is not required to report the above contributions.
Hours of Work and Overtime Records
If the employee is a casual or irregular part-time employee, a record of the hours worked.
For other employees, the record must indicate the number of hours of overtime worked each day, or when the employee began and ended the overtime (applies only if a penalty or premium is paid for the overtime worked).
If the employer and employee have agreed that the employee may take leave in lieu of being paid for the overtime hours worked, a copy of the relevant written agreement.
Averaging of Hours
If the employer and employee jointly average the employee's hours, the employer must keep a copy of the written agreement evidencing mutual consent as a record.
Employers are required to keep records containing the following:
all holiday days to which the employee is entitled; and
the remaining holiday days to which the employee is entitled from time to time.
If the employer and the employee have agreed that the employee will take a portion of his or her annual leave in advance, the employer is required to keep a copy of the agreement showing that:
the number of leave to be taken in advance and the date of leave to be taken; and
it must be signed by the employer and the employee and, if the employee is under 18 years of age, by the employee's parent or guardian.
If the employer and employee have agreed to have accrued leave paid out, the employer must retain a copy:
a copy of the agreement to pay out the amount of leave;
records of the number of days of leave to be paid out and the payment to be made; and
the date of payment.
Individual Flexibility Arrangement Records
Where the employer and employee sign an individual flexibility agreement in connection with an award or registered agreement, a record should include:
a copy of the agreement; and
a copy of the notice/agreement terminating the flexibility agreement.
Guarantee of Annual earnings Records
Whenever an employer gives a guarantee of annual earnings, the employer must keep records of:
the guarantee; and
the date of any revocation of the guarantee (if applicable).
Termination of employment Records
describe the nature of the termination, whether the termination was by consent, by notice, without notice, or by other means;
was the notice served or not, if so, what was the notice period; and
name of the person who authorised the termination.
HR Records such as performance management or disciplinary records do not fall under the category of employee records.
An employer is not required to disclose information from HR records to any employee because these types of employee records are exempt under the Privacy Act and from an employer’s disclosure obligations under the Fair Work Act 2009 (Cth).
Although an employer is not required to disclose HR records, they should be retained as a matter of good practice. In certain circumstances, it may be beneficial for the employer to share these records as part of the performance improvement process.
When disclosing these records to a former employee, the employer must be cautious and seek legal advice.
What rights do employees have to access information during and after their employment?
The employers under the Fair Work Regulations are obliged to provide employees with access to their information during and after employment.
Below are some of the rights employees have in relation to their data during and after employment:
Right to make a request
A current or former employee has the right to request to inspect or request a copy of their employee records. It is advisable to request the records in writing so that the date and nature of the request can be clearly recorded.
Right to inspect and copy records
If the employee requests a copy of his or her records during or after employment, the employer must provide them.
The employer is required to provide the records within 3 business days of the request or send a copy of the records within 14 days of receiving the request if the records are kept on-site or at the workplace.
However, if the records are not kept on the premises, the employer must provide a copy on the premises or send a copy to the employee as soon as possible.
Right to accurate and updated records
Employers are required to provide accurate and up to date records to employees. To the employer's knowledge, the records must not be misleading or false. If a record is found to be false, the employer must promptly correct the record and identify the correction made.
Right to know the location of the records
If an employee asks the employer to inspect his or her records, the employer has a duty to tell the employee where records about the employee are kept.
Right to question/interview employer
During the period that records are made available by the employer, an employee may question or interview the employer or the employer's representative about the records.
What can employers do to ensure protected employee records are not disclosed?
Employment records may contain sensitive personal data. Personal data may include names, addresses, phone numbers, email addresses, photographs, banking details, sexuality, religious beliefs and much more. Therefore, it is important to handle personal data with care to ensure that it is protected.
It is necessary to follow best practices to protect employee records so that it is not shared with third parties.
However, best practices are not the same for all employers. Best practices depend on a variety of factors, including the type of industry, business environment, number of employees, etc.
Here are some of the ways employers can protect their employee records:
Use password protection
Passwords are an effective first line of defence against unauthorised access to employee records.
Only authorised individuals are allowed to access records using passwords. It is recommended to use a strong password, preferably an alphanumeric password. Install an antivirus program and encrypt the device before storing employee records on it.
Ensure that only a select group of people have access to the records
Employers should keep their privacy obligations in mind before sharing information with third parties.
An employer can share employee records with a third party in certain circumstances:
information requested by a Fair Work Inspector;
information requested by a permit holder;
information requested by another government agency or by law; and
information that is provided for work references.
Develop a policy
Conduct employee training on data protection and privacy
Employers should take appropriate steps to train managers and employees and provide them with resources. This will help managers to collect and store information in a legally compliant way. It will also build employees' confidence and encourage them to keep their data up to date and discuss any issues with their employer.
Make sure employees are aware of privacy issues. This will help them understand how personal information is handled in the workplace.
Electronic and social media
Employers should develop policies that set clear expectations regarding electronic communications, social media, and the use of surveillance or other data collection technologies in the workplace.
It is beneficial to explain to employees that their use of the internet, social media, email, and employer-provided devices (such as cell phones and laptops) affects many aspects of their work lives, including privacy.
What can employees do to compel employers to provide records?
Make a formal request and refer to the employer's legal obligations.
After verbally asking the employer to release records, if the employer doesn't provide the records, the employee should make a formal written request for the release of the records.
The request should include specific details about the information (including relevant dates) to enable the employer to comply with the request. The formal request should mention that the employer is required by law to produce the records and must provide copies upon request.
Records kept at the place of business must be provided within 3 business days of the request, or the employee or former employee must receive a copy by mail within 14 days of the request. If the records are not available at the place of business, the copy must be provided to the employee as soon as possible.
The request must also mention that the employer is required to respond to the employee either themselves or through their representative in relation to the records.
Ask Fair Work Australia to get involved
Problems can also be resolved without going to court. Workers can turn to Fair Work Australia for practical advice, education and support with their problems. They provide information and advice to employees and employers on workplace rights and responsibilities under the Fair Work Act 2009 (Cth).
Fair Work Australia does not represent employers or employees but can help both parties understand and comply with the law.
They help employers and employees resolve disputes voluntarily. They cannot compel employers or employees to take any particular action.
If Fair Work Australia is unable to assist workers with their enquiries, they will refer them to the correct service.
Take legal action and use disclosure procedures
If an employer refuses to provide records after a request, employees can start court proceedings against the employer. The court will compel both parties to provide the other with documents relevant to their case.
It is important to consider any time limitation periods that may apply to a legal matter. If the relevant time limit expires, the employee may be unable to commence legal proceedings and compel disclosure of relevant employment records.
How can Prosper Law help?
Prosper Law is an Australian employment law firm with experience in providing legal advice to senior employees and employers.
If you are an employee struggling to gain access to your employee records, or an employer seeking to understand your record-keeping obligations, contact our executive employment lawyer for help.
Farrah Motley | Legal Principal
PROSPER LAW - A Commercial Law Firm for Businesses
M: 0422 721 121
A: Suite No. 99, Level 54, 111 Eagle Street, Brisbane, Queensland Australia 4000