Big Brother is no substitute for real relationships at work

AWU National Secretary Bill Shorten gave this speech at the AWU's annual Seminar in Melbourne on June 25, 2004, focussing on the increasingly controversial subject of privacy in the modern workplace.

Welcome and thank you all for coming to what I'm sure will be an interesting discussion. Thanks to your participation, we only have to look around this room to see some of the people at the cutting edge of research and policy development in what is an increasingly widespread and complex area of workplace regulation.

I think the whole issue of privacy builds on and broadens out the issues raised at our Seminar last year focussing on drug and alcohol testing in the workplace. Since then, workplace privacy issues have become more controversial. Just this week the Federal Court granted an interim injunction to a building union to stop an employer handing over their employees' banking details to the Building Industry Task Force. We've also had the Federal Government's review of Employee Records Privacy, which could lead to some clarifying amendments to the Workplace Relations Act. And the New South Wales Government is legislating to protect employees from covert surveillance of their e-mails and other electronic communications.

And that's the issue I would like to focus on this morning - the electronic monitoring of workers such as by video, computers, emails, and phone-calls. The social significance of new surveillance technologies and their relevance to the general public I guess are partly to blame for the popularity of television programs such as Big Brother. I'm not exactly sure what the recent violent outrage on the British version of Big Brother demonstrates, but it has apparently increased its popularity.

Despite our fascination with surveillance, and particularly covert surveillance - I don't think any of us would choose to work under surveillance unless we had to. People simply don't want Big Brother in the workplace. And workers have a right NOT to be placed under surveillance unless it's absolutely necessary. In addition I believe and there is some evidence that employee monitoring is actually bad for people's health, moral and performance. So the principal for determining the authorisation of any surveillance in the workplace is that it must be minimised to every possible extent.

At this point I guess I should reassure you that none of us in this room at the moment are being monitored by electronic surveillance, except perhaps for audio recording of the speakers and a possible photograph or two. But we all know that as soon as we walk out into the foyer, or lifts, or the street, or other buildings, or into the carpark, or start driving on the road, then we are more than likely to be subject to legal electronic surveillance, especially by video. The massive extent of this public monitoring on the grounds of public safety is only going to increase with the twin developments of anti-terror programs and new technologies.

Some people might think the Big Brother reference is just a joke, but we don't have to look very far for evidence of how badly covert surveillance can be misused in the workplace.

Some of you will know about the alarming unfair dismissal case concerning nine security officers at a western Sydney hospital. But for those who are not familiar with it, let me just outline some of the details.

Managers at the hospital wanted to sack certain security guards and hired a firm of private investigators to gather evidence against them. The gumshoes dutifully followed, spied on and shot secret videos of the security guards for two months, significantly when they left the hospital grounds for 10 to 20 minutes during their shifts to pick up a meal from the local Chinese take-away or Domino's Pizza.

The videos and notes taken by the private eyes detailing these meal trips became the employer's grounds for dismissing the guards. It was alleged that the security guards had severely breached their duties by leaving the hospital unguarded during the meal trips, thus endangering the safety of patients and staff. This was despite evidence in the case that the guards' duties involved car patrols away from the hospital and that the guards were constantly in contact by radios, phones and pagers. In cross-examination, the employer even agreed that "in the interests of collecting evidence (he) thought (he) would leave the safety of patients at risk" during the two months of spying.

The case was very successfully prosecuted by the Health Services Union and the Labor Council of NSW, who won reinstatement and back pay orders for all of the officers. In his scathing judgment on the case in March, Peter Sams - the Deputy President of the NSW Industrial Relations Commission - took the extraordinary step of referring the employer to the Attorney General's Department for breaches of the State's Workplace Video Surveillance Act 1998. The Act requires a Court Order, usually from a Magistrate, to authorise any covert video surveillance in the workplace. Deputy-President Sams said that the breaches in this case included:

1. Timing - the surveillance took place before the dates in the Court Order;

2. Place - the surveillance took place outside the authorised area, which was the hospital car park. This was apparently approved by the Magistrate on the basis of employer's alleged concerns about the security of cash from parking fees. No evidence ever emerged of any problems in the guards' handling of money.

3. Availability - the videos were not made available to the guards within a reasonable time of their request; and

4. Reporting - no report on the surveillance was made to the Magistrate as required under the Act.

The employer in this case was the Western Sydney Area Health Service - a major public authority in the heart of the nation's biggest city. If an employer like this - who is in a position to know much better - but can behave with such disregard to the privacy rights of its employees, then what can we expect from smaller less well-equipped employers?

We've all heard the horror stories of outrageous abuses - like the employer who installed hidden cameras in the staff toilets. But more common are the grey-area invasions of privacy - perhaps not even recognised as illegal - of unnecessary video monitoring, accessing of personal e-mails and records, and excessive performance monitoring - for example of employees' computer and internet usage or even keystroke rate.

The security guard case illustrates some of the benefits available under New South Wales' Workplace Video Surveillance Act, which is really Australia's most advanced legislation on the issue. I also welcome the NSW Government's current action to widen the legislation to control secret monitoring of employee e-mails. These advances are in no small part due to the excellent work of Michael Gadiel whom I look forward to hearing more from later today. Thanks again for coming Michael.

By contrast to NSW, in Victoria workplace video monitoring is effectively exempt from the Surveillance Devices Act 1999. Employee records are specifically exempted from the Federal Privacy Act, despite convincing submissions to the Commonwealth that the employment relationship should not receive inferior privacy protection. Meanwhile, e-mail privacy and biometrics remain largely unregulated.

However, help is at hand for Victorians, thanks to Marcia Neave and her colleagues at the Victorian Law Reform Commission who are currently examining the whole issue of workplace privacy. We are fortunate to have Professor Neave here to fill us in on the inquiry later today - thank you again for coming Marcia.

I think that the New South Wales workplace surveillance legislation provides a good model for other States and I would urge the Victorian Government and other State Governments to implement similar protections for workers as a matter of priority. No doubt the Victorian Government will consider such legislation when it receives Professor Neave's report.

But let me just expand on some of the issues I mentioned earlier, about the impact of monitoring on employees. I am indebted to Anna Johnston and Myra Cheng of Privacy NSW for research on the occupational health and safety impacts of workplace monitoring. Their survey of the literature finds that there is a link between the introduction of performance monitoring and an increase in workers' safety and health problems. The examples range from the so-called engineered standards for computerised grocery warehousing increased the pace of work and increased the risk of lower back and other injuries. Workers were unable to sustain the pace of work over time.

Johnston and Cheng say: "Other health problems experienced by employees who have had their performance technologically monitored include stress, high tension, headaches, extreme anxiety, depression, anger, severe fatigue and musculoskeletal problems." They also find a general negative effect on the workplace from the knowledge that employees are being monitored, including a negative workplace atmosphere, undermining employee morale and creating division between employees and management. A perceived unfairness in monitoring is associated with employee reactions such as withdrawal, sabotage, and resignation. These can only decrease productivity.

My experience in workplaces over the years is that these are precisely the kind of dysfunctional relationships that lead to poor industrial relations. I believe that Australians are better than some HR managers might suggest. Of course there are limited circumstances where workplace monitoring is necessary to protect workers safety, cash control or stock control. These circumstances should be clearly defined and regulated. This should include employee consultation wherever possible.

But our technological abilities should not define our workplace relationships. Machines should not determine our workplace relationships. We should aspire to a better employment culture than mistrusting, spying, and counting every last detail. People are not machines and should not be treated like machines. Decent relationships between employers and employees are the key to not only happier workplaces but also more productive ones. We should focus more on improving our relationships and less on every new kind of electronic monitoring. Big Brother is no substitute for real relationships at work.