|Exposure Draft Workplace Surveillance Bill 2004 (p 1-4)|
On 23 June 2004, Hon Mr Bob Debus MP released an exposure draft Workplace Surveillance Bill 2004 for public consultation. This Bill would extend the regulatory scheme in the Workplace Video Surveillance Act 1998 to two other forms of surveillance: (1) tracking surveillance, and (2) computer surveillance, including monitoring of employees’ emails and internet browsing. Employers would be required to notify employees, in the manner specified, before engaging in these types of surveillance. Covert surveillance could only be used if authorised by a magistrate for the purpose of establishing whether an employee was involved in any unlawful activity at work. The Bill would also regulate blocking of employees’ emails and access to websites, including by prohibiting the blocking of union emails.
Background to Workplace Video Surveillance Act 1998 (p 5-16)
The Workplace Video Surveillance Act 1998 was introduced following a report on the issue by the NSW Privacy Committee and a subsequent majority report by a Working Party commissioned by the NSW Attorney General. Employer groups and the Coalition opposed the legislation on the basis that it would unduly restrict employers’ ability to deal with theft in the workplace. The competing interests relating to video surveillance have been summarised as follows: ‘To employers, video surveillance is a means to expose theft, vandalism and misconduct; to reduce security risks and legal liability; and to replace other forms of security and supervision. Employees see its potential to dehumanise their working environment; to deny them a reasonable expectation of privacy; to harass individuals and to put them under constant surveillance.’
Computer surveillance of employees (p 17-35)
Employers argue that they own the computer equipment being used by employees and that they should be entitled to monitor employees’ use of that equipment for legitimate reasons such as (i) detecting excessive personal use of computers, (ii) avoiding legal liability, including in relation to sexual harassment claims arising from office emails containing pornography, (iii) preventing employees from leaking confidential information, and (iv) maintaining the security of the computer system. On the other hand, unions, privacy groups and others claim that regulation is needed to prevent employers from unjustifiably using covert surveillance and from otherwise using computer surveillance in a way that denies workers their reasonable expectation of privacy, particularly with respect to their email communications.
Tracking surveillance of employees (p 35-42)
Tracking surveillance includes the tracking of employees outside the office, through tracking of company vehicles and mobile phones, as well as tracking employees inside the office, through the use of office access cards and “active badges”. Vehicle tracking is the most common and this is used to increase efficiency, to enhance customer service, for security, and to comply with safety requirements. There have been a number of union complaints about the use of tracking devices. Employees do not want their employers secretly tracking their movements – and they also resent employers overtly tracking their every movement throughout the day, including during break times. They also fear that tracking devices will be used to unfairly discipline drivers.
Current regulation of workplace surveillance (p 43-47)
Workplace video surveillance is regulated by the Workplace Video Surveillance Act. Other laws of potential relevance to workplace surveillance can be summarised as follows. There is no common law action for breach of privacy. There is doubt as to whether federal telecommunications interception laws prohibit email monitoring. Federal privacy legislation provides only limited protection to workers because of exemptions relating to “small businesses” and “employee records”. The latter exemption is under review. Under NSW industrial laws, surveillance can be addressed in awards and enterprise agreements and can form the basis of an industrial dispute. Under federal industrial laws, surveillance cannot be included in an industrial dispute but can be a negotiated condition of an industrial agreement. Unfair dismissal laws may provide relief against dismissals that are based on surveillance evidence.
NSW Law Reform Commission Interim Report (p 48-51)
The NSW Law Reform Commission’s Interim Report (2001) recommended comprehensive surveillance legislation, which would also be applicable to the workplace context. The Commission’s proposal, as it relates to workplace surveillance, is similar in structure to the draft Bill but there are some significant differences between the two. The main difference is that the Commission proposes regulation of overt surveillance in addition to regulating covert surveillance. Employers would need to comply with eight legislative principles when undertaking overt surveillance. The Commission’s final report is due in December 2004.
Some stakeholder views on proposed legislation (p 52-58)
Unions & privacy bodies: The Labor Council supports the extension of the current regulatory regime to computer and tracking surveillance. The Council also submitted that biometrics should be regulated. The Office of the NSW Privacy Commissioner and the Australian Privacy Foundation have criticised the Bill for failing to also regulate overt surveillance, as recommended by the Law Reform Commission. Both privacy organisations also argue that enforcement mechanisms should be improved.
Employers: The Australian Retailers’ Association maintains its position that self-regulation is adequate and that employers should not be required to seek approval from a magistrate to use covert surveillance. The NSW State Chamber of Commerce and Australian Business Industrial support that view and argue that notice requirements in the legislation will impose substantial costs on businesses. They also refer to the problems of having different state legislation for businesses that operate across state borders. It is also argued that the prohibition on blocking union emails is unreasonable.
Workplace surveillance laws elsewhere (p 59-73)
Australia: No other state or territory has introduced specific workplace surveillance legislation However, Victoria has recently proposed two alternate options for regulation of workplace surveillance and testing. The first option would require employers to seek authorisation from a regulator before undertaking either some or all surveillance or testing. The second option would require employers to comply with a set of principles on how they implement and conduct surveillance and testing.
Overseas: In the US, two legislative proposals at federal level to require notice of monitoring have failed but similar laws have been introduced in at least two US states. The UK has issued a code of practice on workplace monitoring to guide employers on compliance with privacy laws. In Canada and New Zealand, where privacy laws apply to the workplace, no such regulatory guidance has been issued. Some European countries have adopted specific workplace surveillance legislation or issued guidance. The EU has recently proposed a Directive on the protection of employees’ data.
Other workplace privacy issues (p 74-79)
A number of other workplace privacy issues have been raised in recent years. One of those issues is biometric identification, which is the identification of employees based on physical characteristics such as fingerprints or irises. This is generally used to control access to and within buildings and in relation to time clocks. Another current issue is testing of employees and prospective employees. Testing includes medical testing, psychological testing, drug and alcohol testing, and genetic screening.