Surveillance, Data Collection and Privacy at Work: A New Application of Equitable Obligations?

Abstract

Employers are gathering a sizeable body of employee data, some of which is sensitive and highly personal. However, privacy law in Australia remains fundamentally ill-adapted for protecting employee interests, due to significant exceptions for small businesses and employee records, and minimal protection of privacy rights at the federal level. Drawing on comparative doctrinal analysis of the UK and Australia, this article frames the dramatic regulatory gaps for employee data in Australia. It argues that equitable breach of confidence might prove to be a critical complement to the employment contract and other forms of legal regulation, to enable the protection of employees’ sensitive data. Th..