An employee’s responsibilities: telling your employer

A condition to require the disclosure of the nature of injury or illness to your employer currently exists in many NSW awards. You should check your own award to see whether such a condition exists. If you need assistance in finding or reading your award, you can contact the NSW Office of Industrial Relations Award Enquiry Service on 13 16 28, or view the full text of your award on the OIR website at www.industrialrelations.nsw.gov.au

If you are covered by a NSW Crown Employees award you could also contact the Public Employment Office in the NSW Premier’s Department.

If your conditions of employment are set by a Federal award or agreement, you will need to contact the federal department's Wageline on 1300 363 264 or on their website at www.wagenet.gov.au.

If your conditions of employment are not set by an award, a requirement to disclose the nature of illness or injury to your employer when taking sick leave may be a condition of your contract of employment. The condition may be express (that is, written in your contract), or implied (that is, the law assumes that condition to be part of your contract, even if it is not written down). For example, if your contract of employment states that company policies form part of that contract, and there is a clear company policy to require such a disclosure, then it may be that such a requirement will form part of your employment contract. You will need to seek independent legal advice if you need clarification of your contract of employment.


An employer’s obligations: what they can do with the information

NSW public sector employers

Prior to 1 September 2004
NSW public sector agencies, such as State government departments and local councils, are bound by the Privacy and Personal Information Protection Act 1998 (PPIP Act). The PPIP Act sets out 12 information protection principles (IPPs), which govern the way in which personal information must be collected, stored, used, accessed and disclosed by public sector agencies. However “personal information” does not include “information or an opinion about an individual's suitability for appointment or employment as a public sector official” (s.4(3)(j) of the PPIP Act). This exemption may include information about employees’ medical history where it relates to their “suitability for appointment or employment as a public sector official”.

However, if the reason for an employee’s sick leave does not impact on their “suitability for appointment or employment as a public sector official”, the agency must follow the IPPs when collecting, storing, using and disclosing the medical information. (More about the IPPs)

After 1 September 2004
On 1 September 2004, the Health Records and Information Privacy Act (“HRIP Act”) will commence. The health privacy principles in the HRIP Act will regulate how NSW public sector agencies must handle health information.

The same exemption for information about a person’s “suitability for appointment or employment as a public sector official” under the PPIP Act applies to the HPPs.


Federal government employers

Australian Government and ACT public sector agencies are bound by the Federal Privacy Act 1988. The Federal Privacy Act governs the way in which personal information must be collected, stored, used, accessed and disclosed by those agencies.

For more information about the Federal Privacy Act, contact the Office of the Federal Privacy Commissioner at: www.privacy.gov.au.


Private sector employers

On 1 September 2004, the Health Records and Information Privacy Act (“HRIP Act”) will commence. The health privacy principles in the HRIP Act will regulate how NSW private sector persons and organisations must handle health information.

However, there is an exemption for “employee records” of private sector employers. This exemption may include information about current or former employees’ medical history where it relates to their “employee record”. This exemption matches the exemption in the Commonwealth Privacy Act 1988. See the guidelines produced by the Office of the Federal Privacy Commissioner on the “employee record” exemption.