The Australian Privacy Federation has lambasted the New South Wales Workplace Surveillance Bill, stating that it merely creates a headache for employers and workers and the New South Wales Attorney General has not kept a promise to protect workers' privacy.
Anna Johnston, chair of the Federation, says there are no requirements in the bill for employees to agree to be under surveillance and in that regard it creates an unequal power balance within a company.
The proposed legislation is based on criminal rather than civil law and workers have no redress whatsoever about how material concerning them is misused, Johnston says.
"The notification requirement of the workplace surveillance bill is not a consent agreement — employees do not need to sign anything, just be told that their emails are being read or that they have GPS [Global Positioning Satellite] in their fleet car," Jackson says.
"A major concern, from a privacy point of view, is as long as employers meet visibility requirements it is open slather — as long as the surveillance is overt, not covert, there is no requirement to justify the surveillance as reasonable or necessary. There is no requirement for the storage or from preventing the boss from misusing material gained from overt surveillance, as well as no right of access for workers to see the material.
"There is a big risk for employers trying to do right thing who may make honest mistakes, yet at same time no remedy for workers who have had their privacy breached — the basic model uses criminal law rather than civil sanctions which creates a big risk for employers."
In overt surveillance, under the proposed legislation, there must be signs at every entrance in the workplace for video or camera surveillance and camera cases must be easily seen. Employees must be given 14 days' notice if the company is conducting covert surveillance. Jackson says the fact that the definition of covert surveillance, in this instance, is any work surveillance that does not meet the rules for overt surveillance and without the OK from a magistrate is a criminal offence, adding that employers are at risk from accidentally slipping between the two categories. The bill also includes email surveillance.
The New South Wales Attorney General department states the bill is clear and simple in allowing for workplace surveillance as long as there is fair warning and notice given to employees.
Spokesperson for New South Wales Attorney General Bob Debus, Alex Cramb, says before the bill was introduced there was a total of 12 months where anyone interested was invited to make comment, which resulted in a bill that strikes a balance between an employee's right to privacy and the legitimate right of an employer to protect their investments and interests.
"The government consulted widely and drafted a considerate bill that strikes a reasonable balance. The Workplace Surveillance Bill will supersede the current video surveillance bill which has been running without any controversy, but the new bill takes the best aspects and extends that to other methods of surveillance," Cramb says.
"In a case where a worker is using a work email address, the employer has a right if they wish to monitor the use and make sure no-one is transmitting confidential information or perhaps downloading material; in order to track the web access or information you need a clear policy in place and give fair and clear warning to employees using equipment that they may be monitored from time to time — we assume all employees sign on and know where they stand.
"The bill also allows for covert surveillance but only where an employer has suspicion that someone in the workplace is breaking confidentialities, and in order to undertake that you need a warrant."
The Workplace Surveillance Bill was introduced to the lower house on May 3, 2005, has gone through two readings and has been re-introduced for debate. Cramb says the Attorney General is confident the bill will be passed to the Upper House.