Equal Employment Opportunity [EEO] and Privacy Law

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1 Equal Employment Opportunity [EEO] and Privacy Law Equal Employment Opportunity [EEO] Organisations Obligations Unlawful Grounds for Discrimination Sexual Harassment Impacts of Sexual Harassment Bulling in the Workplace Common Forms of Bullying Likely Impact of Bullying on the Organisation Laws applicable to Bullying Privacy Law Changes to the Privacy Act National Privacy Principles Basic Implementation Guide Checklist Collecting Personal Information Sample Privacy Statement Privacy Audit Checklist

2 Equal Employment Opportunity [EEO] Equal Employment Opportunity [EEO] is a management and legal issue, which aims to render discrimination, victimisation, sexual harassment or harassment in employment and volunteer roles unlawful. Equal Opportunity laws oblige people not to commit certain acts, and provide a remedy for individuals when unlawful acts are committed. Organisations Obligations An organisation has legal obligations to an volunteer to act in a non-discriminatory manner, by: Advertising a job correctly Selecting fairly Training equally Dismissing fairly Providing all terms and conditions of volunteer roles in an equal manner Unlawful acts of Discrimination Unlawful grounds for discrimination include: Sex Sexuality Marital status Pregnancy Physical disability Race Intellectual impairment Age Sexual harassment Organisations must make it clear sexually intimidating or harassing conduct or behaviour from anyone in the organisation will not be tolerated. The volunteer s responsibility extends not only to volunteer s, but also to anyone who has dealings with your organisation, such as clients, customers or people applying for employment with the organisation. Sexual harassment is a general term covering many forms of unwelcome behaviour or conduct of a sexual nature or having sexual connotation.

3 Sexual harassment includes: Unwelcome or uninvited sexual attention (such as direct requests for sexual activity, propositions or flirtations), Sexual innuendo (such as subtle or implied sexual pressure), Unnecessary physical contact, Creating an overall climate of sexual innuendo, Making sexual jokes, remarks or gestures or telephone calls, Exhibiting magazines, toys, posters or other items which have an overt or implied sexual message, Offensive messages transmitted by facsimile machine and computer eg electronic mail. Impacts of Sexual Harassment Possible effects of Sexual harassment include: - Adverse effects on an individual s job performance and job satisfaction Causing absenteeism and accidents due to stress, tension and anxiety Cause resignation or unfair dismissal Adversely affect productivity of the organisation Create an intimidating or hostile work environment Cause low morale Detract from the reputation of the organisation Bullying in the Workplace Volunteers should be aware of all aspects of bullying behaviour in the workplace. If challenged bullying can have a costly impact on the organisation and severe legal implications. Recognising bullying behaviour Involves the persistent ill treatment of an individual at work by one or more other persons. To be recognised as bulling the ill treatment must be continuous and directed against a particular person. Affects the Victim. Affects other Volunteers/Staff. Affects the organisation. Affects members of the victim s family. Can result in severe consequences for the perpetrator and the organisation.

4 Common Forms of Bullying Persistent and unjustified criticisms, usually of the nit-picking variety. Threats of dismissal or other severe punishment for no reason. Humiliating the victim through sarcasm, criticism and insults, often in front of customers or other volunteers/staff. Giving the victim a greater proportion of unpleasant work than that given to others. Constant checking of the victim s whereabouts or work to a much greater extent than other volunteers with the same seniority. Denying opportunities for training or interesting work. Deliberately withholding information that is important to the victim. Overloading the victim with work. Abusing the victim loudly, usually when others are present. Sabotaging the victims work. Excluding the victim from workplace social events or conversations. Spreading gossip or false rumours about the victim. Likely Impact of Bullying on the Volunteer Deterioration in the quality of work performed Deterioration in the quantity of work produced Increased absenteeism and lateness Resignation of valued volunteers/staff Mistakes increasing Poor Customer relations Poor communications and lower degree of cooperation Increased workers compensation claims Drop in reported inefficiencies, shortcomings in customer service, waste and unnecessary costs Increase in poor time management and practices Increased incidence of drug and alcohol abuse at work Reduced respect for you as the organisation Reduced commitment to the organisations goals. Laws applicable to Bullying The criminal laws relating to assault, threatening behaviour etc. Equal Opportunity Act Occupational, Health, Safety and Welfare Act Workers Rehabilitation and Compensation Act

5 Privacy Law Changes to the Privacy Act Changes to the Privacy Act 1988 which came into effect from 21 December 2001 have had a significant impact on the way some businesses collect and use information. The Privacy Act will now apply to the private sector as well as Federal Government agencies. Recent changes include the new National Privacy Principals which, unless exemption has been given applies to all organisations, and applies to all conventional, electronic and digitally retained information collected on or after 21 December Those small businesses which need to comply with the new legislation, have until 21 December 2002 to do so. Before deciding to make any changes in order to comply with the Privacy Act, businesses will need to determine whether or not the new laws cover the business activity undertaken. The Privacy Commissioner has said: - A small business with an annual turnover of $3m or less is a small business operator and so NOT covered by the Privacy Act unless it: Is related to a business [ie its holding company or any subsidiary company] that has an annual turnover of greater than $3m; or Provides health services and holds health information other than in an employee record; or Discloses personal information about another individual to anyone else for benefit, service or advantage [unless it has the consent of the individual concerned or is required or authorised to do so under legislation]; or Provides a benefit or advantage to collect personal information about an individual from anyone else [unless it has the consent of the individual concerned or is required or authorised to do so under legislation]; or Is a contracted service provider for a Commonwealth contract [even if it is not a party to a contract]; or is prescribed by regulation; or opts into the legislation. National Privacy Principles Ten Principles govern the life cycle of personal information, from collection through to disposal. They are: 1. Collection Collection of personal information must be fair, lawful and not intrusive. A person must be told the firm s name; the purpose of collection; how to get access to their personal information and what happens if the person chooses not to give the information.

6 2. Use and disclosure An organisation should only use or disclose information for the purpose it was collected [primary purpose] unless the person has consented, or the secondary purpose is related to the primary purpose and a person would reasonably expect such use or disclosure. 3. Data quality An organisation must take reasonable steps to make sure that the personal information it collects, uses or discloses is accurate, complete and up-to-date. 4. Data security An organisation must take reasonable steps to protect the personal information it holds from misuse, loss and from unauthorised access modification or disclosure. 5. Openness An organisation must have a document outlining its procedures for handling personal information, which is available to anyone who asks for it. 6. Access and correction An individual has the right to access any personal information that the firm holds about them. There are some exceptions to this such as if the request is vexatious or if there are legal proceedings. 7. Identifiers An organisation must not adopt, use or disclose an identifier that has been assigned by a Commonwealth government agency [eg tax file number, Medicare number]. 8. Anonymity Organisations must give people the option to interact anonymously whenever possible. 9. Transborder data flows An organisation can only transfer personal information to a recipient in a foreign country in circumstances where the information will have appropriate protection. 10. Sensitive information An organisation must not collect sensitive information unless the individual has consented, it is required to do so by law or the collection is necessary to prevent or lessen a serious or imminent threat to life or health of any individual. Basic Implementation Guide Checklist Step 1. Start with yourself [the owner/manager] Lead the way with this culture change Step 2. Review how you deal with privacy information 1. How and what do I do now with personal information? Data bases which store personal information, including marketing lists Files on customers and employees Correspondence relating to personal information Any manuals, policy documents, training matters etc. about how information is obtained Who collects the personal information?

7 Who has access to the personal information? For what purpose is the personal information collected? Are any relevant files updated, if so, how are they maintained? How is any personal information disposed of? 2. What do I need to do to comply with the NPPs? Change any poor practices Implement new practices Step 3. Make the needed changes Invest in training Step 4. Develop a Privacy Policy That is accurate, clear and easy to understand That is, in full or in part, available to the public on request That is on the business s web site Step 5. On-going commitment Compliance is an on-going commitment Collecting personal information The principles that underpin the Act states that an organisation, which includes an employer or a recruitment agency, must not collect personal information unless it is: Necessary for its business activities Done lawfully and fairly Not disclosed to a third party unless this is reasonably expected Kept up to date, not misused, and is accessible to the person to whom it pertains An employee record is a record of personal information relating to an employee s employment. Personal information is information or an opinion about an individual whose identity is apparent or can be reasonably ascertained from the information or opinion. Sensitive information which generally may not be collected without the person s consent includes an individual s racial or ethnic origin, political opinions, religious or philosophical beliefs or affiliations, membership of a professional or trade association, membership of a trade union, sexual preferences or practices, criminal record or health information. Sensitive information must not be collected without the consent of the individual, unless the information is required by law or for individual health or public safety reasons. Refer to the Recruitment and Selection fact sheet to determine what privacy matters should be considered regarding job applicants. Refer to the Contractor fact sheet to determine what privacy matters should be considered regarding contractors engaged by the business.

8 Sample Privacy Statement [No guarantee is given that it will comply with the Privacy Act] [Name of business] is a business that [describe the activities of the business]. [Put in actual address, postal address, address, phone and facsimile number of business]. [Name of business] is committed to complying with the Privacy Act and the National Privacy Principles of: collection use and disclosure data quality data security openness access and correction identifiers anonymity transborder data flows sensitive information [Name of business] collects personal information in a variety of ways including [briefly describe the ways in which the firm collects personal information]. We will only collect information if it is necessary for [briefly describe the purpose for the collection of the information]. Individuals will be notified of our intended use of the personal information at the time of its collection. [Name of business] will store any personal information collected securely and it will not be disclosed to other parties without the individual s consent. Or, if this not the case we will disclose your personal information to [briefly describe the other parties to whom the information is disclosed and include the opt out clause set out below] If you do not want any of your personal information to be disclosed to [repeat the description of the other parties], please return this form to us at the above address. I.. of.. do not consent to my personal information being disclosed to third parties. If you wish to view your personal information please contact [name of appropriate officer] at the above address. If you have any concerns about your personal information please contact [name of appropriate officer] in writing and if you are not happy with our response your complaint will be sent to the Privacy Commissioner s Office for their attention.

9 Privacy Audit Checklist Questions Helpful Tips Answers Further Action Needed What type of information is collected? Complete a separate audit sheet for each type of information Does this information include sensitive information collected. Check the definition of sensitive information. Has consent been given to hold the information stated in the above answers? What is the purpose of collection of the information? Is the purpose relevant? Do we need to collect the information? Is the information we have correct? How often is the information updated? Who is the information collected from-individual/third party? How is the information collected - Verbally? - In writing? Consent must be obtained for sensitive information There must be a purpose for each part of the information If the answer is no then you should not be collecting this information. If the answer is no then you should not be collecting this information. If the answer is no then action should be taken to correct it. Is this often enough? If the answer includes a third party consider whether consent should be obtained from the individual. Consider whether it should be collected in writing to ensure accuracy and consent.

10 Is the person who collected the information aware of the needs of the Privacy Act and its implications? Is the information being used for the purpose for which it was originally collected? Where is the information stored? What steps have been taken to ensure that the information is secure? Has there been adequate training? This will impact on whether you should have collected the information in the first place. Must be stored in a secure and safe place [locked filing cabinet] Do you need to take steps to make it secure?

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