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In an attempt to make the workforce more "diverse", our employer has announced that they will start "collecting and sharing" [sic!] employee data such as ethnicity and gender. This, they say, is in order to get an "assessment", and the next step would be to reflect the the "diversity of the populations in the company". (Boy, are they in for a surprise, but that's besides the point.)

Questions:

  1. 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 during employment.
  2. Do I need to be truthful, legally? Or can I lie without facing reprimands?
  3. Can the employer legally share this data, either internally or externally, aggregated or not.
  4. 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?

(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.)

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  1. 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 during employment.

Yes.

It’s also legal to ask this during interviews.

Discrimination 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 policies of not asking to minimise the risk of discrimination but that is not a legal requirement.

Indeed, the Australian Tax Office requires employers to implicitly ask about gender in their Tax file number declaration by providing check boxes for Mr, Mrs, Miss and Ms.

Further there are government incentives for hiring People of Aboriginal or Torres Straight Islander decent which require asking about that.

So asking about it is fine. Actively using it to manage “diversity”, however, is probably illegal.

  1. Do I need to be truthful, legally? Or can I lie without facing reprimands?

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.

Please note that it is acceptable to answer questions about gender with M, F, or X.

  1. Can the employer legally share this data, either internally or externally, aggregated or not.

Yes. The Privacy Act does not apply to employees. It does, however, apply to prospective and ex-employees if it applies to the organisation.

  1. 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?

Not while you remain an employee. After you leave, yes. See above.

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  • "It’s also legal to ask this during interviews." Huh? So, they can ask me during an interview whether I'm gay or trans? "Indeed, the Australian Tax Office requires employers to implicitly ask about gender in their Tax file number declaration by providing check boxes for Mr, Mrs, Miss and Ms." Sure, but isn't that just used for addressing the employee? – Harry's Pi Jul 11 at 13:26
  • "Further there are government incentives for hiring People of Aboriginal or Torres Straight Islander decent which require asking about that. So asking about it is fine. Actively using it to manage “diversity”, however, is probably illegal." To me, this is a contradiction. If hiring decisions are made based on ethnicity, then you're already managing diversity in a manner. Someone who is not in the above category didn't get the job because he's not in above category. – Harry's Pi Jul 11 at 13:28
  • They can ask, but (1) they are not allowed to discriminate because of the answer, and (2) if you don’t get the job and suspect it might be because of your reply, You might get a lawyer and sue, so it’s wiser for the company not to ask. – gnasher729 Jul 11 at 21:02
  • Your second comment: The idea is that being black, female, gay etc. has nothing to do with your ability to do the job and should not affect the hiring decision. But if there is a law that gives you an objective advantage if you hire an Aborigine, then this should make a real difference to your hiring decision. That’s why that law is there. You don’t hire them for their race, but to get the tax incentive. – gnasher729 Jul 11 at 21:08

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