Getting the Record Straight.

FCB Group discusses employee record keeping for Fair Work compliance.

The RCSA Workforce Information Line (WIL) has recently received a number of questions from members about candidate and employee record keeping requirements.  

Everyone knows that an “employee record” must be kept for seven years. This requirement is prescribed by s.535 of the Fair Work Act (Act), under which an employee record includes the following:

  • General records – employees name, status of their employment, commencement date;
  • Pay records – rate of pay, gross and net amounts, details of any deductions/incentive-based payments;
  • Hours of work records – any applicable timesheet, details of any overtime/time off in lieu (TOIL);
  • Leave records – details of any taken leave, employees leave balance, a copy of an agreement to cash out leave;
  • Superannuation contributions records – all records of superannuation contributions made including the amount, the date, the period the contribution covers and the name of the superannuation fund;
  • Individual flexibility arrangement (IFA) records – a copy of the IFA as well as a copy of any notice terminating the IFA; 
  • Guarantee of annual earnings records – if an employer gives a guarantee of annual earnings the employer must keep a record of the guarantee and the date of any revocation of the guarantee;
  • Termination records – the reason for termination, whether notice was provided or not and the name of the person who facilitated the termination.

What is less clear is how long employers are obliged to keep other forms of information such as resumes and applications. 

Such documentation does not fall within the scope of an “employee record,” and so is not subject to the seven-year rule under the Act. Instead, this information will be considered as “personal information” which is regulated by the Privacy Act 1988 (Privacy Act). 

So, what does this mean? Can an employer simply throw away a resume of a candidate they deem unsuitable for a role? The answer is both yes and no.

Under the Privacy Act there are 13 Australian Privacy Principles (APPs) which apply to some private sector organisations with an annual turnover of more than $3 million. If your organisation does not have an annual turnover of more than $3 million then the AAPs do not apply to you and you can choose to either keep or destroy this information. 

However, if your organisation does meet this eligibility criteria, then listen up. 

APP number 11.2 states:

If:

  1. an APP entity holds personal information about an individual; and
  2. the entity no longer needs the information for any purpose for which the information may be used or disclosed by the entity under this Schedule; and
  3. the information is not contained in a Commonwealth record; and
  4. the entity is not required by or under an Australian law, or a court/tribunal order, to retain the information;

the entity must take such steps as are reasonable in the circumstances to destroy the information or to ensure that the information is de-identified.”

This rule can be applied differently depending on the facts of the situation. 

Scenario 1:

If a prospective employee has applied for a specific job but was unsuccessful and the employer has since fulfilled this position with another candidate, then the purpose for which the candidate submitted their resume/application has lapsed. 

Therefore, the employer must comply with APP 11.2 and ensure that once they no longer need the information for any purpose for which the information was submitted, the employer must take all reasonable steps to destroy or de-identify the information. 

Yes, this means you can de-clutter your desk and throw away all the random bits of paper lying around.

Scenario 2:

If a prospective employee applies for a position which is generic in nature, for example, an administrative position, the candidate may request, or the employer may ask, that their resume/application stay on file in the instance that another similar job appears. Similarly, if a prospective employee sends through an expression of interest, this information too will be stored on file in the event that a suitable job becomes available. 

In this scenario, the purpose for which the information has been received, is still operating and the need for this information is still present. In this case, the employer is expected to securely store this information. 

The APP is silent on how long the employer should store such information, therefore, in line with the obligations under the Act, it is advisable that such records are kept for seven years.  It’s important to note that if the personal information is accessed at a later time, it may only be used for the same purpose that it was initially collected, i.e. for administrative positions as in the example provided in Scenario 2.

For specialist advice and assistance on employe record keeping, please contact the RSCA Workforce Information Line on 1300 988 685 in Australia or 0800 727 269. 

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