In Australia, employers must keep and provide certain employment records upon request. Understanding these obligations is essential for both employers and employees to ensure legal compliance and avoid disputes.
In this article, our workplace lawyers explain the types of employment records that must be retained, employee rights of access, what employers don’t need to disclose, and what steps to take if records are withheld.
Key Takeaways
Employers must keep specific records for at least 7 years
Employees can request copies during and after employment
HR and disciplinary records are generally exempt
Privacy laws apply – employers must protect personal data
Employees can escalate issues to Fair Work or take legal action
Employer Obligations
Under the Fair Work Act 2009 (Cth), employers must maintain accurate, up-to-date employment records. These records must be:
Legible
In English
Unaltered
Accessible to the employee and Fair Work Inspectors
Failure to keep proper records can result in penalties and shift the burden of proof in legal disputes to the employer.
For a broader understanding of your legal obligations, see our comprehensive guide to the Fair Work Act for employers.
Types of Employment Records Employers Must Keep
| Record Type | Details Required |
|---|---|
| General Info | Employer name/ABN, employee name, start date, employment type |
| Pay Records | Rate of pay, gross/net amounts, bonuses, deductions |
| Superannuation | Contributions, fund name, election details |
| Hours of Work | Daily hours, overtime, time in lieu agreements |
| Leave | Accruals, leave taken, signed agreements for leave in advance or payouts |
| Flexibility Agreements | Signed agreements and termination notices |
| Averaging Hours | Written mutual agreements |
| Annual Earnings Guarantee | Guarantee documents and revocation records |
| Termination | Termination type, notice given, name of authoriser |
What Employers Don’t Have to Disclose
Not all documents must be shared. Employers should not disclose:
HR/disciplinary records – Performance management or complaints
Internal grievance investigations – Confidential unless otherwise required
Legal advice – Protected by legal professional privilege
Other employees’ personal info – Unless redacted appropriately
Surveillance/security footage – Only if legally required
Best Practices for Protecting Employment Records
To comply with privacy obligations under the Privacy Act 1988 (Cth), employers should:
Restrict access to authorised personnel only
Store securely with encryption and passwords
Disclose only when required by law
Implement a privacy policy aligned with the Australian Privacy Principles
Train staff on data protection obligations
Employee Rights to Records
Employees have the legal right to request and receive copies of their employment records under the Fair Work Regulations. This applies both during and after employment. Requests should ideally be made in writing for clarity and record-keeping.
Access Timeframes:
Records on site: Provide access within 3 business days
Records off site: Within 14 days or as soon as practicable
Requesting Employment Records
Employees can:
Submit a written request detailing the records sought
Employers must then respond within legally required timeframes
If refused, send a formal follow-up request referencing Fair Work obligations
Steps to Take When an Employer Refuses to Provide Records
If access is denied:
- Contact the Fair Work Ombudsman: The Ombudsman can assist with practical advice and education. However, Fair Work cannot compel an employer to disclose records, but may be able refer cases to appropriate authorities or recommend a suitable approach.
- Commence Legal Action: If unresolved, legal proceedings can be initiated. Under the Fair Work Act, employees have up to 6 years from the breach to file a claim.
Frequently Asked Questions
Do employment records need to be stored separately from HR files?
Yes. To maintain privacy compliance, it is best practice to store formal employment records separately from internal HR files which may be exempt from disclosure.
Can records be kept electronically?
Records can be kept in electronic or paper form, but they must be easily accessible, legible, in English, unaltered, and accurate.
Can old records be changed after an employee leaves?
Only to correct errors, with clear documentation and justification.
What if a business closes or is sold?
The employer (or liquidator/administrator) remains responsible for retaining employee records for the 7-year statutory period, regardless of business closure.
The new employer may inherit responsibility for employment records. Under the Fair Work Act, transferring employers must ensure records are passed on or retained in compliance with legal obligations.
How should employers respond if employment records are lost or corrupted?
Employers must take reasonable steps to restore lost records and notify affected employees if their personal data may be compromised. Preventative measures such as regular backups and encryption are considered best practice.
