Professor Marcia Neave, 5 October 2005
Thank you for coming to the Victorian Law Reform Commission’s launch of the Workplace Privacy: Final Report.
People are often shocked to learn just how rapidly developing technologies have impacted on people’s working experiences.
Technology can monitor virtually all aspects of what workers do, both when they are at work and when they are not.
Technology is increasingly blurring the distinction between workers’ personal lives and their work-related responsibilities.
About 1 in 5 people work at home and this number is increasing.
Workers’ conversations can be monitored, their phone calls can be listened to, and their movements can be tracked.
They can be asked to provide bodily samples for genetic testing, or urine or blood for drug and alcohol testing.
Their emails and internet use may be monitored and they may work under the constant gaze of a surveillance camera. Many do not know when surveillance is occurring.
Privacy is a fundamental human right recognised by international law. But domestic law has little to say about privacy-intrusive workplace practices, or what safeguards should apply if they are used.
While technology is surging ahead with new ways to monitor, test and track workers, our laws have lagged behind.
Surveillance, testing and monitoring may be justified in some situations.
Use of video surveillance can reduce theft; internet monitoring can prevent workers downloading pornography; and drug testing could reduce industrial accidents.
These technologies are often marketed to employers as a cheap, simple solution to management problems, but each have risks and benefits.
Monitoring and testing may go well beyond what is needed to protect employers from legal liability or to create a safe and productive workplace.
Workers subjected to intensive surveillance and control may experience high levels of stress and develop feelings of disloyalty and suspicion towards their employer.
The present law gives employers little guidance about when it is appropriate to use these technologies or how to balance their interests and the privacy concerns of workers.
The Victorian Law Reform Commission’s report on workplace privacy tackles the concerns of both employers and workers.
New South Wales has legislation which deals with overt and covert surveillance of workers.
Our project covers all the practices which affect privacy in the workplace. And this includes emerging technologies, such as eye scans and radio frequency identification chips, which can track workers’ movements.
As far as I know, we are the first jurisdiction in the world to comprehensively address these issues—testing, surveillance, biometric technology, monitoring, tracking and searching—under one regulatory scheme.
Our recommendations are based on consultations we conducted with unions, employer groups, technology and regulatory experts, as well as research on practices in other jurisdictions.
We are recommending the introduction of a Workplace Privacy Act that includes a set of privacy principles.
A key obligation will be that employers should not unreasonably breach the privacy of workers while they are at work.
The idea of unreasonableness allows the law to take account of the needs of different workplaces.
What is reasonable in a factory for safety reasons may be different from what is reasonable in a clothing shop.
To be reasonable, a practice must directly relate to the employers’ business and be in proportion to the issue the employer is dealing with.
We propose that a regulator be appointed to oversee the operation of our recommended legislation and to receive and resolve complaints about breaches of privacy.
The regulator will also be able to investigate as well as inquire into practices across an industry, and make recommendations based on those inquiries.
The role could be given to an existing regulator, for example the Privacy Commissioner, or a new office could be established.
For most practices which affect workers while they are working, we recommend ‘light touch’ regulation, which was favoured by many employers in our consultations.
The regulator will be able to issue advisory codes to guide employers about whether and how they should use a particular practice. For example, there could be an advisory code covering email or internet monitoring, or overt surveillance of workers at work.
However, tougher controls will apply to practices which are more privacy invasive.
Mandatory codes will apply to covert surveillance (for example, the use of hidden cameras or tracking devices at work) and to drug and alcohol testing of workers.
Employers will be required to follow mandatory codes.
Codes can be industry specific. For example, there could be a code applying to drug and alcohol testing of football players.
Our legislation makes a distinction between work and non-work activities.
While many people will accept some loss of privacy while they are at work, what they’re less likely to accept is a loss of privacy once they stop working.
It will rarely be justifiable for workers to be subjected to surveillance by an employer when they are not working, or to provide a bodily sample for genetic testing.
The Commission is recommending that employers apply to the regulator for an authorisation if they want to use such practices.
They will need to show very good reasons why, for example, a workers’ privacy outside of work should be breached, and the regulator will decide if an authorisation is appropriate. Otherwise, such practices are prohibited.
The one practice that is completely prohibited under the proposed Act is the use of surveillance in toilets, change rooms, washrooms and lactation rooms.
The nine commissioners who make up the Victorian Law Reform Commission believe our recommendations strike a fair balance between protecting workers’ privacy and recognising employers’ interests in running their business effectively.
We believe our recommendations will protect workers’ privacy without imposing a high cost on employers.
I hope that representatives of unions and employers who are here today consider the detail of our proposals before reaching a judgment on them.
I want to conclude by thanking members of our Advisory Committee, who gave us advice on aspects of law and technology.
I also thank the unions and employers who participated in our consultations.
Susan Coleman, who was seconded to us from Freehills and Priya SaratChandran who came from Deacons, made an outstanding contribution as researchers for the project.
I also want to thank Chief Parliamentary Counsel, Eamonn Moran and Diana Fagan who drafted the Bill attached to the Report and Gemma Varley who put the finishing touches on the Bill.
Finally my thanks go to all other members of the Commission’s staff who contributed to the project and to this launch.