The Impact of Privacy Legislation on the Workplace: The New Zealand Experience

Abstract

This paper describes how New Zealand's Privacy Act applies in practice to the workplace, and what its effect has been in relation to the protection of workers’ privacy interests. While there are a few areas where the legislation is effective, it has been largely a disappointment for workers, who are increasingly subject to privacy-intrusive practices in the workplace.

Individuals’ interests have always tended to be overridden in institutional and contractual settings where individuals lack bargaining power. The main argument of this paper is that New Zealand's Privacy Act, now in force for over eleven years, has hardly affected the balance of power in relation to workplace privacy matters. The irony is that those who are best placed to take advantage of the legislation in the employment setting are unsuccessful job applicants and dismissed employees; i.e. those who are not actually in a subsisting employment relationship. Despite the existence of privacy legislation, it is employment law that remains of paramount importance for the protection of workers’ privacy interests.

The New Zealand experience suggests that effective workplace privacy protection can only be attained through specific sectorial regulation that overrides managerial prerogative and the ability of workers to contract out or their rights.