At a recent USU Branch meeting the issue of old or incorrect information on employees’ personal files being used against them by their employer especially on related issues was raised.
The Local Government State Award has contained important rights for employee’s access to their personal file and what it contains for over 2 decades.
With the new 2020 NSW Local Government State Award commencing on the 1st of July this refers to the correct clause number in this award:
Clause 37. Disciplinary Procedures
A. EMPLOYEE’S RIGHTS
Notwithstanding the procedures below, an employee shall:
Have access to their personal files and may take notes and/or obtain copies of the contents of the file.
Be entitled to sight, note and/or respond to any information placed on their personal file which may be regarded as adverse.
Be entitled to make application to delete or amend any disciplinary or other record mentioned on their personal file which the employee believes is incorrect, out of date, incomplete or misleading.
Be entitled to request the presence of a Union Representative and/or the involvement of their Union at any stage.
Note: there is also a subclause (v) but it is unrelated to the matter regarding personal files.
The USU strongly advises every member to request access to their personal file/s at least annually.
Standard Claim Form
To assist with this we have created a standard form for our members who work in NSW Local Government to use in seeking access to their personal information retained by their employer.
This form will be made available through our delegates and officials for use by USU members. It can also be downloaded from our website here: www.usu.org.au/usu-resources/
Over the years we regularly receive complaints from members who have been disciplined or who may have been overlooked for promotion that incorrect, misleading, incomplete or out of date (old) information on their employee records (personal file) has been used against them to their detriment especially in unfair dismissals and by passing steps on what should be a first warning to show cause or termination that on its own is not warranted.
Councils are required by law to retain certain records for at least 7 years, however the USU has had success in having what we consider to be out of date records (more than 2 years) removed from the file and sealed and stored until disposed of once the 7 year period of record keeping is reached.
This prevents the information in the sealed record being used against the employee.
Why this is important
In 1998/99 while working as a USU Organiser in Sydney I had an inner city Council seek to adopt a HR policy that nothing would be considered out of date and therefor would be retained on personal files indefinitely.
I had the members lodge a grievance and after HR refused to accept the out of date provision in the award I took the matter to the NSW IRC.
The representative for the Employers in the dispute admitted during proceedings that the out of date provision was valid and with the assistance of the commission it was decided that out of date was for a period after 2 years for example 2 years and 1 day.
– USU Manager North
The USU has many examples of Councils agreeing to review file contents and removing them after months, subject to positive review rather than waiting 2 years. These outcomes have almost always been as a result of the Union’s involvement.
While the award provides employees with the above rights, it also places a responsibility on the employee to make application to first access their information and to then further seek to request any specific out of date information be removed or to have misleading information amended.
The employee has the right to add to their file any information they wish to add which can provide context or refute anything they don’t fully agree with.
Too often in unfair dismissal cases the Commission questions why old or allegedly misleading information was left by the employee unchallenged on the file.
An employee could also provide permission for their Union to have access to their file, but this should be done in writing and signed to avoid privacy law issues.
Most of our members will not likely have anything of concern on their files but there would most likely be hundreds who do and many would be unaware.
If you have been disciplined over 2 years ago, we would advise you to access your file asap and to make application to remove out of date information.
If the information of concern is less than 2 years old, you should seek to have it amended or attach your own notes which refutes any issue/s of concern.
The Award contains many positive rights but if you don’t know of them and act on them you will not get the full benefit of your Award.