ASU Submission: Inquiry into Workplace Surveillance 

Date: 7/08/2024

ASU Victorian Private Sector Branch

1. The ASU Victorian Private Sector (‘the ASU’) represents workers across a wide range of industries. These industries include:

a. Customer Services
b. Administration and clerical
c. Legal sector / Law firms
d. Call Centres
e. Airline operations, customer service & ground handling services
f. Airline administrative maintenance, freight, cargo and logistics
g. Technical & IT
h. Airline and travel call centres
i. NGOs
j. Community & social services
k. Transport, freight and logistics
l. Gaming & wagering 

2. Our submissions draw upon the insights from our membership, delegates, staff and union leaders.

3. The ASU would also like to indicate our support for the submission and recommendations provided by the Victorian Trades Hall Council (‘the VTHC’).

Background
4. The ASU Victorian Private Sector welcomes the opportunity to contribute to the Victorian Government’s inquiry into workplace surveillance (‘the Inquiry’).

5. The ASU is concerned about the increased use of technology that allows companies to monitor workers, including surveillance software, AI, video and audio recording and GPS tracking.

6. In Victoria, protections against excessive surveillance and monitoring of workers during work hours are extremely limited. Elsewhere in Australia, protections are more robust, but still insufficient.

7. Victoria is lagging behind community expectations and the increased interest from private companies investing in monitoring and surveillance technology.

8. The ASU are seeing is a rise in dismissals and disciplinary action based on surveillance and monitoring technology. We are also hearing from some of our members that they feel isolated and anxious when they feel like they can’t chat to their colleagues, go to the bathroom or get a cup of tea without being monitored. This has a deleterious impact on workplace culture, on hard won workers’ rights, and on the psychosocial health of employees.

9. Specifically, the ASU has repeatedly heard from members that surveillance and monitoring technology is allowing companies to threaten misconduct in scenarios where ‘performance issues’ would more accurately describe the issue. Traditionally, underperforming workers are provided with an opportunity to improve their performance at work. However, we are finding that companies are beginning to use new disciplinary norms emerging around surveillance technology as an excuse to avoid what should be normal management discussion.

10. From speaking with our members, we are hearing that there is a lack of information in their workplaces about the surveillance technology being utilised by the companies they work for, and that they will often find out about surveillance when the other workers or themselves are suddenly being disciplined. This is unacceptable and urgent action must be taken to address it.

I wasn’t concerned about surveillance in the workplace until I heard today that employees at [law firm] have been disciplined for 5 ASU Victorian Private Sector Branch Inquiry into workplace surveillance submissions bad mouthing their employer through having internal phone calls monitored - ASU legal delegate, May 2024

11. In mid-2024, we asked 30 union delegates representing workplaces across the Victorian private sector about their concerns regarding workplace surveillance, and the relevance of surveillance to their workplaces. The following is a breakdown of our survey:
a. Delegates were asked how concerned they were about surveillance in the workplace, on a scale of 1-10 (10 being extremely concerned). The average response was 7.4.
b. Delegates were asked whether they were aware of a clause in their employment contract or EBAs that gave their employer permission to utilise surveillance technology in the workplace. Roughly 50 per cent were unsure. 

Recommendations
Recommendation 1: Victoria needs specific workplace surveillance legislation. The ASU supports the call by the VTHC for a Privacy in Working Life Act.

Recommendation 2: New legislation needs to contain consultation clauses that are triggered every time that employers are seeking to install new surveillance or monitoring technology. This must ensure that unions are consulted regarding any introduction of or change to surveillance systems or electronic modelling, and the purpose and method of interpretation of all data collected. A genuine codesign process with workers and unions should be mandated.

Recommendation 3: New legislation should not contain a ‘standing consent’ clause that enables employers to insert consent clauses in contracts of employment. Meaningful consent must be obtained, and workers should not be able to waive their privacy rights.

Recommendation 4: New legislation should create an independent body that provides an avenue for workers and representatives to challenge the use or installation of surveillance technology.

Recommendation 5: New legislation should provide employees and representatives with a right to access data collected, both when it is being used against employees in disciplinary processes and when it can be utilised in collective bargaining or other worker driven actions.

Recommendation 6: New legislation should specify that where surveillance technology is being justified on the basis of KPI monitoring or for the purposes of KPI generation or AI modelling, that good faith consultation with workers and their representatives regarding those KPIs must first occur. Additionally, performance evaluation should not be conducted solely on the basis of surveillance technology or AI or algorithmic reporting, and should be considered in line with all standard disciplinary and employment processes.

Recommendation 7: WorkSafe Guidelines and training for responsible use of surveillance and monitoring data by companies should be developed. These should account for the impact of AI generated KPIs or workload pressures driven by the use of surveillance, and their psychosocial impacts. Guidelines and training specifically address hostile and trust-breaking practices of IT audits conducted on events that occurred more than 4 weeks prior.

Recommendation 8: WorkSafe Guidelines and training should address the hostile tactic of accusing workers of ‘time theft’, instead of addressing the matter as a performance issue where KPIs are not being met. These guidelines should further include the setting of unachievable or excessive KPIs as a key occupational health and safety risk, including where they result in the intensification of workloads or an increase in hours worked without appropriate increases in compensation.

Recommendation 9: New legislation should explicitly ban any surveillance of workers outside of work time. This should include a prohibition on monitoring non-work areas such as break rooms and first aid rooms, and prohibit the trawling of workers social media.


ASU Member Case Studies
1. The ASU is concerned to hear consistent reports from members in which surveillance data is being misused by management in order to justify disciplinary processes.

2. We have provided a range of case studies from across our membership below, in order to highlight the varied ways in which employers are using surveillance specifically for the purpose of disciplinary action, rather than for any legitimate security or safety purpose.

12. In some of these case studies, the workers are legitimately not performing well enough at work, for one reason or another. However, workers do not have to be perfect in order to deserve proportionate responses from management, and a fair process overall.

ADMIN CASE STUDY
Maria works in HR for a large company. She has been employed as a permanent part-time employee for over 15 years.

Recently, Maria returned from family and domestic violence leave, and made a request for flexible working arrangements. In the meeting to discuss the flexible working arrangement request, Maria was told that there had been allegations she had been misusing her time. The company formalised the allegations against Maria the next day and provided her with their evidence of inactivity recorded through using mail or email.

Maria was accused of four dates in recent months in which an IT audit suggested she had not been performing a full day of work. Two dates were Maria’s first two days back from family and domestic violence leave.

Maria believed that the company was flexible about hours spent working, and frequently worked beyond her rostered hours to complete her work.

Maria was unsure of all of the ways her work was being monitored. 


CALL CENTRE CASE STUDY
Irfaz has worked at a call centre on a permanent full-time basis for 4 years.

Recently, Irfaz made an informal complaint to his team leader regarding a colleague’s inappropriate attire at work. Irfaz’ team leader sent the complaint, without his consent, to management. Management decided to review CCTV footage for the day. Management disagreed with Irfaz’ informal complaint, and instead made an allegation against Irfaz. The allegation was that a person fulfilling their responsibilities during workhours would not need to turn their head and look at someone for long enough to observe their clothing.  


TRANSCRIPTIONIST CASE STUDY
Doug worked as a transcriptionist for a large company for over 4 years as a permanent part-time employee. Doug works partially from home, due to COVID-19.

Doug’s employer uses a new transcription program that tracks the user’s length of time interacting with the program. Part of Doug’s job requires him to view footage that cannot be transcribed, such as portions of footage that are in a foreign language, or body cam footage with no talking.

Doug was recently accused of ‘time theft’ after the company conducted an audit on people’s inactivity during working hours. Doug was provided with 16 dates over a 2-month period in which he had not been performing work. Doug was not told how long he was inactive on these dates, or the timestamps for the alleged inactivity.

When the union became involved, we demanded these details and discovered that 4 dates captured non-working days, 2 dates capture days that were setting up the new transcription program, and 2 dates captured days in which Doug attended EBA bargaining meetings as a delegate. Of the 8 remaining dates, Doug accepted there were times where he struggled to pay attention from time to time due to ADHD but was still able to meet his KPIs.

Doug was not aware of the ways that the program used by the company captured inactivity, and struggled to remember what may have been happening at work on some of the dates in question. The company did not have a workplace surveillance policy, and Doug’s contract did not contain a surveillance clause.

Doug’s employer refused to treat the matter as a performance issue and classified it as a conduct matter (being ‘time theft’).

Doug had never received a warning about his performance or conduct at work.

Doug was terminated for serious misconduct.


NGO CASE STUDY
June worked for a large NGO in Victoria for 4 years. Her job required her to use a company car for most hours of the working day, visiting locations all across Victoria. Workers were allowed to utilise the vehicle for reasonable personal use outside of working hours.

It was common for workers to attend to their admin whilst out on the road, either in their cars, in cafes and libraries.

Due to family and domestic violence, June began struggling to hit her KPIs. Instead of raising this with June immediately, June’s workplace conducted an audit on the company car GPS data. The company called a disciplinary meeting in which June was presented with a bundle of excel spreadsheet data that represented 4 months of GPS data. June was questioned about her decision to visit certain cafes instead of others, driving to locations that the company suspected was for non-work related matters.

June struggled to remember the reasons she went to certain locations over the entire 4 month period. June disclosed to the company that she was experiencing family and domestic violence, which was the cause of failing to meet some of her KPIs. The company refused to treat the matter as a performance issue, and instead categorised the issue as ‘time theft’ and misconduct.

June recalled at the beginning of her employment, she was provided with a handbook that mentioned GPS tracking of the company vehicles. June was told about GPS tracking for safety. However, June did not realise that the data would capture locations outside of working hours, or that the data could be pulled for disciplinary purposes.

June was dismissed from her employment due to the allegations. The ASU repeatedly sought clarification on the ability for management to view company car locations after working hours, as at various points workers’ after-hours locations were gossiped about in the workplace.

LEGAL INDUSTRY CASE STUDY
Patti is a young worker in her first professional job. Patti was provided with misconduct allegations by her employer. The company’s telephony system used for incoming and outgoing client calls and data storage was audited, and Patti was accused of using the technology to have non-work-related conversations with her colleagues during working hours. The longest call was roughly 10 minutes. The company accused Patti of discussing work avoidance on these calls. The allegations raised potential breaches of her contract and workplace policies, and noted her employment could be terminated.

Patti was not aware that her internal calls to her colleagues were being recorded or listened in to.

Patti’s contract contained a general privacy and surveillance clause that explained Patti’s computer use would be subject to continuous monitoring. The company did not have a more specific workplace surveillance policy.

Patti was one of five people who were subjected to a disciplinary process for talking to colleagues over the company’s telephony system. 


AIRLINES CASE STUDY
Nic works in customer service for a major airline. He has been employed for the company for almost 8 years.

Recently, Nic was pulled into a disciplinary meeting to discuss alleged misconduct roughly 2 months prior. The company accessed car park swipe entry and exit data, as well as sign-in and sign-out data to accuse Nic of time theft. The company erroneously thought that Nic would not have enough time between entering the carpark and entering the building to start his shift. However, Nic was much quicker at the journey between the carpark and the building than the company anticipated. 


Context - Existing Victorian Legislation
3. The Surveillance Devices Act 1999 (VIC) (the ‘SD Act’) applies to the use of cameras, listening and tracking devices and data surveillance.

4. Section 9A of the SD Act defines an ‘employer’ as a person/company that employs a person under a contract of service, a contract for services, or who engages volunteers.

5. Section 9B of the SD Act prohibits an employer from knowingly installing, using or maintaining an optical surveillance device or a listening device to observe, listen to, record or monitor the activities or conversations of a worker in a toilet, washroom, change room or lactation room in the workplace.

6. More generally, the SD Act prevents a person from:
a. knowingly installing, using or maintaining a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party, without the express or implied consent of each party to the conversation.
b. Knowingly installing, using or maintaining a data surveillance device to record or monitor the input of information into, or the output of information from, a computer without the express or implied consent of the person on whose behalf that information is being input or output;
c. Knowingly installing, using or maintaining a tracking device to determine the geographical location of a person or an object without the express or implied consent of that person or person in lawful possession of that object.

7. In the ASU’s experience, most employers are putting non-specific clauses in contracts of employment, which state that the employer is aware and consents to the use of surveillance technology in the workplace. This cannot be considered meaningful consent.

8. It appears that employers are using ‘catch-all’ clauses in employment contracts without needing to notify workers of the exact nature of the surveillance technology, whether the surveillance is capable of being used for disciplinary processes, and when there is new surveillance technology being trialled or adopted. 

We have no policies at work. Workers expect that it is not used at all. But in practice, the boss uses it freely in disciplinary processes. - ASU NGO Delegate, May 2024 

9. Concerningly, some workers have complained that their workplace does not have a surveillance policy, or a clause in their contract about surveillance. Instead, it appears that some employers are relying upon a common understanding in their industry that the workers are being monitored.

10. Because Victoria’s legislative requirements around workplace surveillance are inadequate, even where there are policies in the workplace, the ASU is seeing policies that are vague or poorly understood by the workforce.

Context - Existing Australian Legislation
11. The Workplace Surveillance Act 2005 (NSW)(‘WSA’) applies to the use of surveillance equipment in the workplace in NSW.

12. There are also specific regulations that pertain to computer surveillance in workplaces under the WSA. Surveillance of employee computers can only occur when there is an existing policy in place, and the company provides notice in advance and ensures that the employees understand the policy.

13. Unless otherwise agreed, under the WSA, workers must be provided with 14 days’ notice of surveillance commencing. Workers must be provided with particular information, such as the kind of surveillance being utilised and the length of time surveillance will take place.

14. The Workplace Privacy Act 2011 (ACT)(‘WPA’) goes further, and requires good faith consultation with the workers regarding any proposed surveillance. The employer must also give written notice, the notice must be specific about many facets of the surveillance, including the subject of surveillance, the length of time it will continue, the purpose of the surveillance and the kind of surveillance being deployed. Surveillance can only be conduct if it is carried out in the manner in which it is specified in the notice.

15. However, both the WSA and WPA contain provisions that allow ‘surveillance by agreement’, which may enable employers in NSW and ACT to insert ‘catch-all’ clauses in contracts of employment and thereby satisfying the otherwise robust requirements under the legislation.

16. Regardless, due to more progressive legislation, there is some scope for workers in NSW and ACT to be more involved and informed about the surveillance they are subjected to.  

I have observed other teams under increased stress and pressure to meet the KPIs set by management. This causes clerical errors, which then also leads to negative consequences for the worker who then has their privacy breached to explain those errors. - ASU Call Centre Delegate, May 2024