The interrelationship between the right to privacy and an employer’s need for information which an employee might consider confidential is a passionate one for many people in the workplace. I never cease to be amazed at the anger some people can feel at the slightest suggestion that a person or organization has accessed confidential information about that person in circumstances which the person concerned regards as an assault upon his or her rights. Maybe I am old school, but I am very relaxed about my privacy, and have enjoyed a fortunate career where I have not developed a fundamental mistrust of the governments or major commercial organizations. Whether this is because the age of fear of Big Brother is more acute now than in the past, or whether my affairs are so ordinary that I have little concern about who knows what about me, I do not know. Perhaps it is because as a lawyer for four decades I know instinctively that I can do something about it if I need to.
In any event, at the moment there is very little restriction on the right of an employer to collect and use confidential information about its staff. For example in Austin v Honeywell Ltd* the Federal Circuit Court decided that an employer which declined to offer employment to an applicant who refused to provide certain private information in the pre-employment scrutiny could not succeed in a claim for adverse action because the provisions of the Privacy Act cannot be construed as a workplace law capable of being relied upon as creating a right in the workplace.
*2013 FCCA 662