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Privacy and Workplace Surveillance Act

Privacy and Workplace Surveillance Act

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Published by Aaron Magner
This is a paper on the Privacy and Workplace Surveillance Act in New South Wales, Australia. This paper examines the limits on
employers’ rights to use covert electronic surveillance in the workplace.
This is a paper on the Privacy and Workplace Surveillance Act in New South Wales, Australia. This paper examines the limits on
employers’ rights to use covert electronic surveillance in the workplace.

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Published by: Aaron Magner on Aug 25, 2009
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09/16/2010

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Privacy and
 
WorkplaceSurveillance
Aaron MagnerLegal CounselUniversity of New South WalesIntroduction
The
Workplace Surveillance Act 2005
(NSW) significantly curtails employers’ rights to use covertelectronic surveillance in the workplace. The Act was originally heralded as a long-needed protection of employee privacy. However, in practice the Act does not so much protect employee privacy, rather, itrequires employers to inform employees of the surveillance to which they are subject. So long asemployers notify their employees in advance they are effectively free to overtly and covertly spy their employees while they are "at work".The Act encompasses the regulation of all forms of surveillance, including the monitoring of employeeemail, Internet usage, camera surveillance and tracking surveillance.The Act also:limits an employer’s ability to monitor or block employees’ emails or restrict access to the Internetunless it is acting in accordance with a policy that has been notified to employees,introduces new restrictions on the use and disclosure of surveillance records,expands the definition of employee – so it applies to, among others, independent contractors in thetransport industry (such as truck drivers), as well as employees.Failure to comply with the Act may amount to a criminal offence. If a corporation contravenes any provision of the Act, a director or any other person concerned in the management of the corporation mayalso be taken to have contravened the same provision. Prosecutions proceedings may be instituted bytrade union, as well as by the employee concerned.This paper analyses the Act focusing on the provisions that impact upon the monitoring of email andInternet use. The significance of the Act including surveillance of email and Internet usage is twofold:.1It provides much needed guidance for employers about the way in which the monitoring oemployee email and Internet usage should be conducted..2It recognises that the surveillance of email communications and Internet usage is simply onemanifestation of surveillance in the workplace.The presentation is in four parts.
Part 1
involves a discussion of why employers should monitor employees’ email and Internet usage andlooks at employees’ expectations of privacy, especially in relation to email communications.
Part 2
canvases how email and Internet monitoring should be conducted in light of the framework of covert and overt (or “notified”) surveillance created by the
Workplace Surveillance Bill.
Part 3
examines the Federal Privacy Commissioner’s Guidelines for creating Internet and email policiesand examines a Model Policy created by Electronic Frontiers Australia. The Model Policy provides a potential basis on which an employer can build a policy governing email and Internet use in theworkplace.
Part 4
discusses considerations of fairness that ought to be given weight during any disciplinary actionan employer may take when surveillance reveals employee misuse of email or the Internet. The focus of this part of the presentation is on highlighting the considerations that ought to be kept in mind by anemployer to avoid an unfair dismissal action by the employee. This part of the presentation will alsoindicate to employees, and lawyers representing the applicant in an unfair dismissal action, certain
 
 procedural entitlements employees possess when being dismissed because of inappropriate use of emailor Internet facilities. The paper discusses a number of cases that illustrate considerations relevant to thefairness of and indicate the sorts of issues that have been coming before the Industrial Commissions inrespect to the misuse of email and the Internet.It is emphasised that an employee’s misuse of email and Internet facilities does not necessarily constitutesufficient grounds on which to summarily dismiss that employee. An employee who misuses email or theInternet should be afforded the same entitlements to procedural and substantive fairness in the reprimandand/or dismissal process that they would be entitled when faced with allegations of any other form of misconduct.
P
ART
I
Why would an employer want to monitor employee email and Internet usage?The issue of privacy
Employees often consider email to be a private form of communication. Emails are certainly discreet. Inworkplaces that lack audio-privacy, such as open-plan office spaces, emails are often the most discreetand efficient way that a worker can communicate with his or her children, family, friends, work colleagues or business contacts. Emails also lend themselves to informal conversations, even thoughthey attract the same liability as other forms of written communication.However, emails are not as private or secure as they may appear. Emails are generally not a secure formof communication: they can be intercepted by persons who possess the necessary equipment both insideand outside an organisation. Employees may assume that once they delete an email and empty their rubbish bin then the email is erased – after all, the email has then for all normal intents and purposes,disappeared from the system. However, often employees do not appreciate that deleting emails fromone’s inbox and personal computer does not delete the email from the company’s server.
Employer obligations to employees
Employers have an obligation to provide a safe workplace for their employees. This obligation exists atcommon law as a general duty to implement and maintain a safe system of work for employees.Employers must take reasonable steps to avoid exposing employees to a foreseeable risk of injury. It isreasonably foreseeable that the distribution of inappropriate material by email, such as pornography,vilification or malicious gossip may damage the health, safety and welfare of an employee for which anemployer may be liable. Failure to take reasonable steps to prevent employee exposure to inappropriateemails may leave the employer liable at common law.The
Occupational Health and Safety Act 
2001 (NSW) also imposes obligations on employers to ensurethe health, safety and welfare of all employees at work.
Section 53
of the
 Anti-Discrimination Act 
1977 (NSW) provides that an employer has strict liability for discrimination against an employee in the workplace unless the employer can prove it took all reasonablesteps to prevent the discrimination from occurring.Similarly, an employer must demonstrate they took “
all reasonable steps
” to prevent an employee fromsexually harassing another employee to avail themselves of the defence against strict liability under the
Sex Discrimination Act 
1984 (Cth).Finally, an employer who fails to prevent an employee from suffering harm as a result of harassment byanother employee may be liable for compensation to that employee under the
Workers Compensation Act 
1987 (NSW).It is thus essential for an employer to ensure that email and Internet systems are not used by someemployees in a manner that renders the employer in breach of it’s occupational health and safetyobligations to other employees.It is insufficient for an employer to merely have a policy against inappropriate use of email and theInternet. Employers must also enforce such policies and cannot decline to monitor employee email or 
2
 
Internet usage on the basis of respecting employees’ privacy. The surveillance, or monitoring, of emailand Internet use is a necessary element in an employer’s strategy to prevent workplace harassment.It is however, astute for employers to be mindful of employees’ reasonable expectations of privacy whenmonitoring email and Internet usage. An unreasonable policy, a policy with draconian overtones, or a policy that is difficult to understand will detrimentally affect employee morale and may reducecompliance with the policy. A policy that balances employees’ expectations of privacy with the need toensure the employer’s occupational health and safety obligations is likely to preserve employees’ impliedright to a relationship of trust and confidence with their employer and is likely to increase employees’commitment to their work and the organisation for which they work.
Surveillance as a mechanism of appraising and promoting employees’ work productivity
Electronic monitoring of employees’ email and Internet usage may promote employees’ productivity bydissuading employees from spending excessive periods of time on personal emails or surfing theinternet. Monitoring email and Internet usage is also an effective way for an employer to determinewhether an employee’s productivity is unreasonably diminished by excessive personal emailing, surfingthe Internet or bidding on e-bay
et. al 
..The discreet nature of emails, in particular, makes it difficult for employers to be aware of the amount of work-time an employee spends writing or reading non-work related communications unless theemployer uses a form of electronic monitoring.The
Workplace Surveillance Act 
severely curtails an employer’s right to covertly monitor employee useof email and the Internet as part of the performance appraisal of an employee. As discussed in Part Twoof this presentation, if an employer wishes to use information obtained from the surveillance process inthe performance appraisal of its employees, the employer must be careful to satisfy the requirement toadequately notify employees, in advance, of the intended surveillance and to what purpose theinformation gathered may be put.
P
ART
2
Monitoring employee use of Email and the Internet
The existing law provides little guidance for employers about how to monitor employee email andInternet usage. The
 Privacy Act 
1988 (Cth)
 
contains ten National Privacy Principles which apply to the private sector and regulate the collection, storage and dissemination of personal information. In NewSouth Wales, the Privacy Commissioner can investigate and conciliate alleged privacy breaches byorganisations and individuals.The Act expands the
Workplace Video Surveillance Act 
to encompass other forms of surveillance in theworkplace. The
Workplace Video Surveillance Act 
distinguished between overt and covert surveillanceand regulates when, and for what purpose, overt and covert video surveillance can be used. The
Workplace Surveillance Act 
retains the strict distinction between overt and covert surveillance. As aconsequence, employees are entitled to advance notice of the monitoring or surveillance of their emailcommunications and Internet usage.The consequence of the
Workplace Surveillance Act 
for employers is that it is crucial to notifyemployees of what surveillance their email communications and Internet records are subject. Unless anemployer obtains prior approval from a magistrate to conduct covert monitoring of email and Internetrecords, which requires an employer to follow a relatively onerous process, surveillance conducted for the purpose of performance appraisal is likely to render the employer in breach of the Bill.
The Workplace Surveillance Act 2005 (NSW)What is surveillance?
Three types of surveillance are covered by the Act: Camera, computer and tracking (See
Section 3
definitions).
1. Camera surveillance:
This is defined as monitoring or recording by electronic means of visualimages of the employee such as by means of a closed circuit television system.
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