privacy employment australia data-protection
Can employer collect and share employee data such as skin colour?
<p>In an attempt to make the workforce more &quot;diverse&quot;, our employer has announced that they will start
&quot;collecting and sharing&quot; [sic!] employee data such as ethnicity and gender. This, they say, is in order to get an &quot;assessment&quot;, and the next step would be to reflect the the &quot;diversity of the populations in the company&quot;. (Boy, are they in for a surprise, but that's besides the point.)</p>
<p>Questions:</p>
<ol>
<li>Is it legal for an employer to collect this data, either explicitly by asking questions individually, or implicitly by sifting through employee files? The reason why I'm asking this is because asking these questions are illegal to ask in interview questions, so I'd be surprised if it would be legal to ask them <em>during</em> employment.</li>
<li>Do I need to be truthful, legally? Or can I lie without facing reprimands?</li>
<li>Can the employer legally share this data, either internally or externally, aggregated or not.</li>
<li>Would I have a right to force the employer to disclose to me what data they have collected about me, e.g. in order to rectify it?</li>
</ol>
<p>(Not sure if this fits law better or workforce, but I'm posting this here because I'm asking for the legality of this all.)</p>

<blockquote>
<ol>
<li>Is it legal for an employer to collect this data, either explicitly by asking questions individually, or implicitly by sifting through employee files? The reason why I'm asking this is because asking these questions are illegal to ask in interview questions, so I'd be surprised if it would be legal to ask them <em>during</em> employment.</li>
</ol>
</blockquote>
<p>Yes.</p>
<p>It’s also legal to ask this during interviews.</p>
<p><em>Discrimination</em> on the basis of race or gender is illegal at both State/Territory and Commonwealth level but asking about it isn’t. Many organisations have <em>policies</em> of not asking to minimise the risk of discrimination but that is not a legal requirement.</p>
<p>Indeed, the Australian Tax Office <em>requires</em> employers to implicitly ask about gender in their <a href="https://www.ato.gov.au/uploadedFiles/Content/IND/Downloads/TFN_declaration_form_N3092.pdf" rel="nofollow noreferrer">Tax file number declaration</a> by providing check boxes for Mr, Mrs, Miss and Ms.</p>
<p>Further there are government incentives for hiring People of Aboriginal or Torres Straight Islander decent which require asking about that.</p>
<p>So asking about it is fine. Actively using it to manage “diversity”, however, is probably illegal.</p>
<blockquote>
<ol start="2">
<li>Do I need to be truthful, legally? Or can I lie without facing reprimands?</li>
</ol>
</blockquote>
<p>You are required to follow all lawful and reasonable directions of your employer. The direction is lawful. If you believe it is not reasonable you can refuse but you shouldn’t lie.</p>
<p>Please note that it is acceptable to answer questions about gender with M, F, or X.</p>
<blockquote>
<ol start="3">
<li>Can the employer legally share this data, either internally or externally, aggregated or not.</li>
</ol>
</blockquote>
<p>Yes. The <em><a href="https://www.oaic.gov.au/privacy/the-privacy-act/" rel="nofollow noreferrer">Privacy Act</a></em> does not apply to employees. It does, however, apply to prospective and ex-employees if it applies to the organisation.</p>
<blockquote>
<ol start="4">
<li>Would I have a right to force the employer to disclose to me what data they have collected about me, e.g. in order to rectify it?</li>
</ol>
</blockquote>
<p>Not while you remain an employee. After you leave, yes. See above.</p>
