The Fair Work Act 2009 (the Act) requires an employer to make and keep certain employee records relating to remuneration, hours of work and leave entitlements for seven years.
Current and former employees have the right to access their own records. Fair Work Inspectors must also be allowed to access employee records, and union officials may also access records and personal information in certain circumstances.
The information in this article aims to assist employers to understand their obligations and ensure compliance with the requirements under the Act.
In what form should records be kept?
The Fair Work Regulations 2009 (the Regulations) state that records that relate to an employee must:
- be legible, in English and in a form that is readily accessible to a Fair Work Inspector;
- be kept for seven years;
- be properly maintained and kept accurate at all times;
- not be altered unless for the purposes of correcting an error;
- not be false or misleading to the employer’s knowledge.
- Records may be kept electronically so long as they are able to be printed out on request.
What content needs to be kept as an employee record?
The content requirements for employment records are set out by the Regulations. Under the Act, employers must keep the following records:
- General employment details;
- Hours of work;
- Averaging of hours;
- Individual flexibility arrangements;
- Guarantees of annual earnings;
- Termination of employment;
- Child employment (under some state and territory legislation).
Some of these matters are considered in more detail below.
General employment records must include all of the following:
- The employer’s name;
- The employer’s Australian Business Number (ABN) (if any);
- The employee’s name;
- The employee’s commencement date;
- The basis of the employee’s employment (full or part-time and permanent, temporary or casual).
Records of pay must include all of the following:
- The rate of remuneration paid to the employee;
- Gross and net amounts paid to the employee;
- Any deductions made from the gross amount paid to the employee;
- The details of any incentive-based payment, bonus, loading, penalty rate, or other monetary allowance or separately identifiable entitlement paid.
Hours of work and overtime
In the case of a casual or irregular part-time employee who is guaranteed a pay rate set by reference to time worked, a record of the hours worked by that employee must be kept.
Employers only have to keep records in relation to overtime if a penalty rate or loading must be paid for overtime hours actually worked by the employee. If this is the case, the employer must keep a record which states:
- The number of overtime hours worked each day; or
- When the employee started and ceased working overtime hours.
The employer must make and keep a record that sets out:
- Any leave that the employee takes; and
- The balance of the employee’s entitlement to each relevant type of leave from time to time.
Note that these requirements do not only relate to leave arising from the NES. The requirements also apply to leave under a modern award, enterprise agreement or contract of employment.
If an employer and employee have agreed to cash out an accrued amount of leave (in line with an award, enterprise agreement or the NES (National Employment Standards) if award/agreement free), the employer must keep both a copy of the agreement to cash out the amount of leave and a record of the rate of payment for the amount of leave cashed out and when the payment was made.
Record of superannuation contributions
If an employer is required to make superannuation contributions for an employee, the record relating to the employee must contain the following details:
- The amount of the contributions made;
- The period over which the contributions were made;
- The dates on which the contributions were made;
- The name of any fund to which the contributions were made; and
- The basis upon which the employer became liable to make the contributions, including the keeping of a record of any election made by the employee of a fund to which contributions are to be made and the date of any relevant election.
Are HR Records employee records?
An employer is only required to grant access to a request by an employee for their personal information held by or on behalf of the employer if the information is accessible under legislation including the Privacy Act 1988 (Privacy Act) or the Fair Work Act 2009 (the FW Act).
Under the Privacy Act’s Australian Privacy Principles (APPs), an act done, or practise engaged in, by an organisation that interferes with the privacy of an individual is exempt if it directly relates to:
- a current or former employment relationship between the employer and the individual; and
- an employee record held by the organisation and relating to the individual.
Most of the personal information held by an employer about an employee will fall within the employee records exemption under the Privacy Act, which means that aside from the legal compulsion exception that applies to all information, employers do not have to comply with any of the Privacy Act requirements or APPs including allowing access to individual employees (past or present) to their personal information.
This means that HR records such as performance management or disciplinary records are not employee records, therefore an employer is not obligated to share this information with any employee, because of the employee records exemption under the Privacy Act. There may be circumstances where it is beneficial for the employer to share these documents as part of a performance improvement process. However, an employer should be cautious in providing documents to a former employee and legal advice is recommended if such a request is received.
Further advice or assistance
For further advice or assistance on this topic, or any workplace relations matter, Employment Plus clients who have placed two or more candidates have free access to the Ai Group Workplace Advice Line.
Call 1300 862 217, 8.30am – 5.15pm AEST Mon-Fri