There is certainly an obligation to keep “employee records” for a period of 7 years under the Fair Work Act 2009. However, the definition of ’employee record’ under the Privacy Act 1988 (as referred to by the Fair Work Act 2009), is for personal information held by an employer in relation to an employee’s employment.

In regard to prospective employees at the stage of recruitment, they have not yet been engaged for employment, they are therefore excluded from an employer’s obligations to maintain employee records under the Fair Work Act.

Instead, personal information held by employers in relation to prospective employees must comply with the Australian Privacy Principles (APP’s). The APP’s do not mandate a fixed timeframe for how long personal information about a person is held, provided that information was collected with consent and is used for the primary purpose it was intended for.

In that regard, it is best practice for employers to have policies on how long information collected during the recruitment stage is held. We would recommend a period of 1 year for those prospective employees that make it to the interview stage. However, you may decide on a shorter timeframe.

In the specific scenario that a past candidate asks for the return of personal information, there is an obligation to comply. However, if that personal information has been destroyed, then the same need only be communicated to the candidate making the request.