Union access and workers privacy-serious issue or storm in a teacup?

Interesting that one of the hot issues in the Senate over the Government's industrial relations legislation to replace Workcover is the union right to enter the workplace and to access records of non-members and members alike in certain circumstances. According to The Australian:

"(Opposition) MPs are expressing varied views on industrial relations, with Liberal backbencher Wilson Tuckey arguing nobody, including unions, should have the power to inspect a person's payroll records without their written approval. He said Workplace Relations Minister Julia Gillard was fiddling around at the edges saying any issue could be referred to the Privacy Commission. “You'd need a staff of thousands,” he said. “And that's just one example of why this bill is about union enhancement, not workers' enhancement.”

The Privacy Commissioner told the Senate Estimates Committee (Finance and Public Administration 23 February pages 88-90) that she had raised concerns about privacy issues in the emerging draft bill with the Department of Employment and Workplace relations last year. Apparently not having received much of a response she made a submission (PDF) along similar lines to the Senate Committee that examined the bill, after it had sailed through the House of Representatives without any fuss. Her concerns were union access to an employer's records could result in access to irrelevant information about an employee's mental health, criminal record, the fact that their wages were garnisheed, or details of child support payments. Her recommendations included the addition of a requirement that access should only be to information "directly relevant" to the dispute or incident, but as emerged at the Senate Committee hearing, this still poses some difficult issues of interpretation.

Deputy Prime Minister Julia Gillard on ABC 7.30 Report last night said unions had a longstanding right of entry to access information relevant to an industrial dispute or workplace safety incident.

In NSW law and I assume in the other states this is the case. I can't recall hearing a peep out of the NSW Privacy Commissioner's office about any privacy concerns or about any complaints. Maybe like most privacy issues here, the low profile helps.

The following is from current guidance issued by the NSW Department of Premier and Cabinet on the subject. There is no reference to "directly relevant" here and there are fines if employers don't provide information:

"Agencies cannot rely on the PPIP Act or HRIP Act to avoid disclosing information that must be provided under other laws. Some examples of the impact of other legislation are given below.

Example 1: Personal information about employees that must be provided under Industrial Relations Act 1996 (IR Act)
Part 7 of the IR Act confers certain powers of entry and inspection on officers of industrial organisations, eg unions. Under section 298 of the IR Act authorised industrial officers (authorised industrial officer is defined in section 296(1) of the IR Act and means an officer or employee of an industrial organisation of employees who holds an instrument of authority for the purposes of Part 7 of the IR Act issued by the Industrial Registrar under section 299 of that Act) may enter, during working hours, any premises where relevant employees (relevant employees are defined in the IR Act as employees who are members of an industrial organisation, or who are eligible to become members of that industrial organisation) are engaged, for the purpose of investigating any suspected breach of the industrial relations legislation or of any industrial instrument that applies to those employees.

For the purpose of investigating a suspected breach, the authorised industrial officer may view any employee records and other documents kept by the employer that relate to the suspected breach. The authorised industrial officer may also make copies of the entries in any such records or other documents related to such a suspected breach. Before exercising their power of inspection, authorised industrial officers are required to give the agency at least 24 hours' notice or, if records or documents are to be viewed, at least 48 hours' notice.

The PPIP Act does not preclude obligations on agencies to provide access to employees' time and wages records where an authorised industrial officer gives the appropriate notice. As disclosure of this information to the authorised industrial officer is required under the IR Act, section 25 of the PPIP Act permits non-compliance with section 18 of the PPIP Act. A number of the HPPs in the HRIP Act provide similar exemptions. Fines may be imposed under the IR Act if the information is not provided.

Example 2: Personal information about clients that must be provided under the Occupational Health and Safety Act 2000 (OH&S Act)
Section 8 of the OH&S Act requires that employers must ensure the health, safety and welfare at work of all employees of the employer and also that people (other than the employees of the employer) are not exposed to risks to their health or safety while they are at the employer's place of work. Section 13 of the OH&S Act requires that an employer must consult with the employees of the employer to enable the employees to contribute to the making of decisions affecting their health, safety and welfare at work. As part of those consultations, agencies must share relevant information with their employees or persons acting on the employees' behalf eg union representatives.

Where there is a suspected breach of the OH&S Act, the authorised representative (under the OH&S Act, the authorised representative of an industrial organisation is the same as an authorised industrial officer as defined in the IR Act) of an industrial organisation may enter the premises where an agency's employees work and may require the production of documents which "directly affect or directly deal with the occupational health and safety of employees working at those premises" (see section 81 of the OH&S Act). Such documents may include personal information about clients. By operation of section 25 of the PPIP Act and HPPs 4,5,6,7,8, 10,11,12, and 15, the requirements in section 81 of the OH&S Act lawfully authorise disclosure where it would otherwise be in breach of the legislation.

Entry of an authorised representative must be in accordance with Division 3 Part 5 of the OH&S Act. Although this allows entry to the premises without notice, the agency should be notified of the authorised representative's presence on the premises as soon as reasonably practicable unless

• to do so would defeat the purpose for which the premises were entered or would unreasonably delay the authorised representative in a case of urgency, or

• the agency is already aware that the authorised representative has entered the premises or was notified in advance (see section 78 of the OH&S Act).

It is an offence under section 84 of the OH&S Act to refuse or fail to comply, without a reasonable excuse, with a requirement made by an authorised representative.

Public sector agencies that are satisfied that documents may be disclosed to authorised industrial officers under the IR Act or authorised representatives under the OH&S Act must make it clear to those representatives that the documents provided must not be used for a purpose other than that for which they were required. In some cases the industrial organisations involved (such as unions) will be bound to do so by application of the Privacy Act 1998 (Cth)"