Making a difference? The Privacy Act and employment relationship problems in New Zealand

Abstract

This article examines the impact the Privacy Act 1993 (the Act) has had in litigation under the Employment Relations Act 2000 (the ERA) and its predecessor, the Employment Contracts Act 1991. It finds that the Act has had a significant role in redressing the informational power imbalance between employers and employees but, also, that it has not changed the fundamental nature of the relationship between them. In particular, the Act has strengthened rather than weakened the duty of employers and employees to deal with each other in good faith and has, in many instances, served to re-enforce the trust and confidence that employers repose in employees. The article finds that many rights conferred by the Act overlap with similar rights contained in the ERA, but also that the Act has been used to fill gaps in the ERA as to how the rights it confers are to be implemented. In addition, the Act is often used by way of analogy as well as imported into employment relationships through individual or collective agreements. The research also finds that contraventions of the Act have been considered as a factor in unjustified dismissal or disadvantage in employment.