Australia: Decisions Over Use of Surveillance in the Workplace

Surveillance in the workplace is a controversial topic that has sparked numerous debates. New technologies have made it easier for employers to monitor their employees’ behaviors and productivity. However, both employers and employees seem to be on different sides of the coin when it comes to this topic. Employers look at it as an opportunity to optimize productivity in the workplace that will ultimately benefit employees, whereas employees perceive workplace surveillance as a serious invasion of privacy.

Recently, employers in Australia were reassured of their right to introduce surveillance technology in the workplace. However, due to this debate between employers and employees, the Australian Fair Work Commission recently had to step into two workplace surveillance cases in order to give the final decision over the use of surveillance in the workplace.

Case 1: Toll Transport Pay Ltd. T/A Toll Shipping vs. Transport Workers’ Union of Australia

On 13 April 2017, Toll Transport Pay Ltd (“Toll”) filed an application under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a dispute. The dispute at hand was regarding Toll’s plans to install surveillance devices into its liquids and linehaul fleets. The devices were infrared driver fatigue/distraction monitoring systems and an upgraded inward and outward facing digital video recorder monitoring system.

Both Toll Transport Pay Ltd. and the Transport Workers’ Union (“TWU”) of Australia presented their arguments to the Commission which then went ahead to make their final decision.

Transport Workers’ Union of Australia Arguments:

The mere fact that the technology set to be installed had the ability to record all their activities including non-driving activities made the move an extremely intrusive one.
Workers in the union aired the concern that Toll Transport Pay Ltd. could use the recorded information for reasons other than those for ensuring safety.
The infrared light emitted from the distraction monitoring system was a safety hazard. Toll could not give enough evidence that highlighted the possible physical detriment that may be caused to drivers’ eyes.

Toll Transport Pay Ltd. Arguments:

The proposed technology would bring about substantial safety benefits in relation to decreased accidents.
All systems were safe and the emitted infrared lights would not cause any damage to the drivers’ eyesight.
Numerous other competitors were using the proposed surveillance system. As a result, Toll had joined some contractual agreements with clients that required them to use the system.
By implementing these surveillance monitoring systems, Toll would be able to comply with its enterprise agreement that required both Toll and all the transport workers to take all necessary steps to ensure safe working systems were set in place.
In accordance with its managerial privilege, Toll was entitled to introduce new technology to the company operations.

Final Decision:
After the hearings, the Australian Fair Work Commission gave the verdict that Toll Transport Pay Ltd was well within its rights to implement the new surveillance technology. The Commission’s deputy president decided in favor of Toll because they gave satisfying arguments that proved that the safety benefits outweighed the issues raised by the TWU. In reaching this conclusion, the deputy president acknowledged that Toll had policies in place explaining its intended use of any recorded footage that both parties could rely on if a dispute eventuated. As for the safety concerns, the TWU did not present any evidence contradicting Toll’s expert witness regarding the impact of infrared lights on drivers’ eyes.

Case 2: Australian Municipal, Administrative, Clerical and Services Union v. Canon Australia Pty. Ltd. T/A Canon

Earlier this year in July, the Australian Services Union (“ASU”) went to the Australian Fair Work Commission to dispute Canon Australia’s (Victoria) move to introduce GPS tracking devices. The tracking GPS devices were to be installed and activated on the mobile phones of their Victoria-based repair and servicing technician employees during working hours. This dispute was raised on the basis that this change in policy went against Canon’s existing enterprise agreement.

When called to face the Commission, ASU raised the following arguments to support their dispute:

Australian Services Union (ASU) Arguments:

Canon’s enterprise agreement required Canon to minimize any hostile impacts of workplace changes on employees. By implementing these GPS tracking devices, Canon would be going against that.
The proposed technology included unnecessary and unreasonable intrusion into the working conditions of employees by tracking their personal information.
Most technicians had flexible working hours, therefore, the term “during working hours” needed further definition and explanation.
The policy did not comply with existing provisions in the enterprise agreement regarding hours of work and overtime.
The primary purpose for installing the technology was to support disciplinary action, in contravention of a specific restriction in the enterprise agreement.
There was no basis to believe that the technology would improve customer service, scheduling, or health and safety.

After ASU presented their arguments, the Commission was not persuaded because their argument was not deemed satisfactory. The Commission was satisfied, based on the evidence of Canon’s use of similar technology in other states, that the primary purpose of its introduction was not to support disciplinary action. The Commission also rejected the ASU’s restrictive interpretation of the consultation provisions in Canon’s enterprise agreement, with the Commission confirming that Canon could implement workplace change as long as there was proper consultation.

The Commission argued that although the employees were apprehensive, the Commission’s main obligation was to determine whether Canon’s proposal breached any terms of the enterprise agreement. The dispute application was rejected and Canon was allowed to introduce their employee GPS tracking.

What Do These Decisions Mean for Australian Employers?

Despite the fact that most employees and unions are not in favor of introduction of surveillance technologies in the workplace, the verdicts from these cases indicate that employers in Victoria have the right to implement workplace surveillance. They can do so as long as they show how these surveillance services will work towards functioning for work-related purposes.