Privacy Law and Policy Reporter
Anna Johnston and Myra Cheng
This is Part 2 of a two part article. ,‘Part 1: concerns for employees and challenges for privacy advocates’ appeared in (2003) 9(9) PLPR 161.
While the workplace surveillance debate is generally viewed as a contest between civil liberties and technology, it is also an episode in an ongoing conflict between employers and employees. ,The adoption of workplace surveillance practices will depend on a range of complex political and historical factors including the prevailing level of industrial conflict, the extent to which employees can assert their privacy rights and the extent of government intervention in industrial disputes and through the enactment of legislation.
This part examines two industrial conflicts which have had a critical impact on the development of the regulation of workplace surveillance practices. The first case study discusses an Australian dispute between a grocery chain store and unionised blue collar workers. The second case study documents a recent American controversy involving the electronic monitoring of the US judiciary.
In New South Wales, the issue of electronic workplace surveillance attracted media attention and public concern, and prompted the Government to enact legislation, as a consequence of a series of bitter industrial conflicts. Most notable among these was the dispute between a grocery chain store, Franklins, and the NSW Branch of the National Union of Workers (NUW).
In May 1994, more than 800 workers undertook industrial action over management proposals to introduce engineered standards. The NUW went on strike, protesting that the adoption of such systems were an attack on working conditions and were harmful to its members’ health and safety. Although the strike lasted only four days it was nevertheless an acrimonious dispute. Violence broke out when police and non-union workers attempted to break the strikers’ picket lines. Following this event, the NUW and Franklins agreed ,to end the dispute with a compromise: the union accepted the introduction ,of engineered standards in exchange ,for a $35 pay rise.
Not long after this compromise was reached, the issue of video surveillance sparked a further conflict between Franklins and the NUW. On this occasion, the company alleged that some of its property had been damaged by a union member during the violence. It sought to substantiate this allegation with the video evidence it had acquired. Franklins used the video footage to identify and sack one worker. This termination prompted a walkout by 900 workers. On the recommendation of the Industrial Relations Commission that NUW comply with dispute resolution procedures, the employees agreed to return to work and the employee in question was subsequently reinstated.
As a result of this dispute, the Minister for Industrial Relations established an inquiry into engineered standards while the NSW Privacy Committee initiated an inquiry into workplace video surveillance. In its ,final report, the Industrial Relations Commission supported employers’ use of engineered standards subject to increased consultation with employees and union officials. In contrast, the NSW Privacy Committee in its publication, Invisible Eyes: Report on Video Surveillance in the Workplace, put forward a number of recommendations including a call for the amendment of industrial relations legislation. Following another two inquiries into video surveillance, the NSW Parliament enacted the Workplace Video Surveillance Act 1998 (NSW). The industrial dispute between Franklins and NUW was crucial in shaping both the terms of the debate proceeding the legislative enactment as well as the content of this legislation.
In NSW, the Franklins dispute alerted the wider trade union movement to the increasing use of monitoring technologies in the workplace, and prompted some key unions, including the NUW, to become vigorous opponents of workplace surveillance. The dispute provided a vivid demonstration of the ways in which electronic surveillance could be used by employers as an instrument of class power. In this instance, surveillance technology was used for the purposes ,of work intensification (speed-ups) and disciplining deviant conduct (strike-busting). As a result, workers were strident in their submissions to the various government inquiries, expressing strong objections to employers exercising state like powers. Furthermore, given the inadequacy of the common law, the unions sought legislative intervention as their central demand.
This dispute may have impaired the public image of employer groups and undermined public confidence in their ability to use surveillance technologies responsibly. Employer groups campaigned against the enactment ,of legislation to regulate electronic surveillance practices at the workplace. In opposing parliamentary intervention, employers argued, among other things, that: (1) ‘self-regulation’ would afford employees sufficient protection; and (2) electronic surveillance would be used primarily for crime control, rather than employee performance monitoring. Nevertheless, as Sempill points out, the ‘Franklins dispute raised doubts about these claims and, therefore, weakened the ability of employers to make their case in the public arena’.
Another critical outcome of the Franklins dispute is that the debate over electronic surveillance is defined in terms of an irreconcilable conflict between employer and employees. The NSW Privacy Committee, for example, did ,not raise the possibility that a consensus could be reached between employers ,and employees. Instead the issue was approached on the basis that there were competing interests which could be traded off but not reconciled. Both the Privacy Committee and the Law Reform Commission rejected the possibility of ‘self-regulation’ of covert surveillance. It was recognised that consensus of interests does not exist and that ‘employers would use their superior power in the workplace to conduct covert surveillance in ways which offended vital employee interests’. Thus, government intervention was seen as a necessity to protect those minimum standards of privacy which should not be bargained away.
In NSW therefore the use of video surveillance in the workplace has been regulated since 1998; covert video surveillance for the purpose of performance monitoring is now prohibited. However, there is no surveillance specific legislation which deals with performance monitoring using overt video surveillance or performance monitoring using other technologies.
Employers must instead look to general privacy laws for guidance. NSW public sector employers must comply with the Information Protection Principles in the Privacy and Personal Information Protection Act 1998 which would suggest, for example, that surveillance must be reasonably necessary for a lawful purpose that is directly related to a function or activity of the agency, and it must not intrude to an unreasonable extent on the personal affairs of employees.
However in terms of performance monitoring, private sector employers appear to be largely untouched by the new Commonwealth privacy laws (which regulated the private sector from December 2001) as employee records are exempt from regulation.
The NSW Law Reform Commission however has more recently proposed more comprehensive legislation to regulate all forms of surveillance, both overt and covert, and regardless of the type of technology used. This proposal is currently before the Attorney General for consideration.
Last year, workplace surveillance became an issue of considerable public debate in the US when court administrators sought unrestricted monitoring of 30,000 federal court employees, including 1800 judges. ,In May 2001, a group of federal ,court judges learned that their internet communication was being monitored by court administrators. Troubled by the privacy and confidentiality issues, judges of the Ninth US Circuit Court of Appeal ordered technology staff to disable the internet monitoring systems on their networks. This shutdown lasted for ,a week and also affected the circuit network of the Eighth and Tenth Circuit. A public conflict ensued between the judges and the administrators who maintain judicial computers. The administrators wished to reinstate monitoring and adopt a policy giving federal judges and their staff no expectation of privacy in the workplace. However, the Federal Judges Association maintained that e-monitoring would threaten judicial independence.
In September 2001, the Judicial Conference, the policy making body ,of the federal judiciary, met to resolve the conflict. The Judicial Conference rejected the administration policy that would have eliminated all expectation ,of privacy ‘at any time’ while online at work. The Conference also voted to end email monitoring of the judiciary. However, the Conference did approve limited monitoring of internet use and prohibited the use of certain file sharing programs. Although this revised monitoring policy only applies to federal court employees, Chief Judge Charles H Haden II of the Federal District Court in Charleston commented that it might be seen as a precedent. He said, ‘I think anything the court system does over all may have an impact on the operation ,of private businesses.’
Furthermore, commentators have queried the implications for judicial decision making: ‘Will the judges’ experience mean that courts will be more likely to guard the privacy rights of private employees?’ The US Privacy Foundation has concluded that:
The judicial retreat from unrestricted monitoring will have an impact on the ,14 million US workers who, according to a recent Privacy Foundation study, are subjected to continuous monitoring while online ... The adoption of a more limited policy by the judges proves the debate over workplace surveillance is far from over.
Privacy NSW will build on the work regarding electronic surveillance and employee privacy initiated by the former NSW Privacy Committee. We will continue to follow local and overseas developments and engage with relevant stakeholders and the public as to how best protect the privacy interests of employees in our rapidly changing information society.
First and foremost, let us be quite clear that life as a privacy advocate ,does not mean being a luddite. We ,do appreciate the benefits that many new technologies can bring.
However with every new development in information technology, there is a correspondingly greater risk that the information that we might be happy ,to share with our family, friends or colleagues may also be shared with what American legal academic and journalist Jeffrey Rosen calls ‘a less understanding audience of strangers’.
In particular there has been an unquestioning stampede to harness new technologies in the workplace, such as CCTV surveillance, relational databases and biometric identifiers, to deal with age old problems of performance assessment, employee theft and so on. In many cases, the technologists have been driving both government and private sector policy decisions in the absence ,of informed public debate.
Developments in technology alone must not be allowed to drive our decisions. Our decision makers — in government and the private sector alike — must pay more than just lip service to ensuring there is a proper balance being sought between the public interest in the protection of employees’ privacy and the accountability of employers’ dealings with personal information on the one hand, and the public interest in efficient government and business operations, law enforcement and public safety on the other.
Along with the efficiencies brought ,by new technologies, therefore, comes the responsibility to deal with those technologies in an accountable manner. We need comprehensive and public policy debates about how organisations can best harness new technologies, rather than let technology harness us.
Local privacy laws based on the ,core international privacy principles established by the OECD and the ILO are the obvious place to start. Privacy laws and principles are about ensuring organisations act fairly in the way in which they collect, store, use and disclose our personal information, as well as ensuring the accuracy of that information before it is used. As organisations gather more and more data about us, control over its use and misuse becomes increasingly important. As Jeffrey Rosen has noted:
Privacy protects us from being misdefined and judged out of context in a world of short attention spans, a world in which information can easily be confused with knowledge.
The overarching objective of privacy laws is to help each of us assert and preserve our dignity and autonomy, by allowing us, rather than governments, corporations, or anyone else, to control and define information about ourselves. In the context of the workplace, the protection of privacy is about shifting the locus of power away from employers, and back to employees.
This can be a difficult message for privacy advocates to ‘sell’ employers. However employers need to understand that privacy protection is integral to trust, and trust is the cornerstone of effective employment relations. Whether you approach the issue from the liberal, privacy-as-a-human-right angle, an organisational psychology and management theory perspective, an occupational health and safety angle, ,or even the industrial relations field, ,it is clear that seeking the least privacy invasive method of achieving an organisation’s goals makes sense.
Privacy advocates need to be able to draw on those related fields in order to make convincing arguments in favour ,of greater regulation of surveillance in the workplace.
This article began by taking up the challenge of talking about privacy in the workplace. We suggest it is a challenge precisely because ‘the workplace’ is not a homogenous concept. It involves blurred and culturally relative boundaries between the ‘public’ and the ‘private’ domain. The very nature of the employment relationship is inherently that of unequal power, and hence the workplace may be a site of conflict. Even within the one workplace, therefore, there may be co-existing radically different views on whether workers can or should have any expectations of privacy.
In dealing with this challenge, we have argued that privacy advocates must look beyond their traditional liberal and human rights based discourse and engage with disciplines as diverse as organisational psychology, industrial relations and management theory. However, it should be noted that the conclusions to be drawn from those other fields will be familiar to privacy advocates, in the sense that legislated accountability frameworks, built around the core privacy principles developed by the OECD and the ILO, are the key to ensuring an appropriate balance between the protection of privacy and the conduct of surveillance.
Anna Johnston is the NSW Deputy Privacy Commissioner. Myra Cheng is a Research & Policy Officer with Privacy NSW, the Office of the NSW Privacy Commissioner. The authors gratefully acknowledge the assistance of Dr Ben Searle, Macquarie University, in providing an overview of the relevant literature from the field of organisational psychology. This paper was presented on 28 November 2002 ,to the International Conference on Personal Data Protection hosted by ,the Personal Information Dispute Mediation Committee, Korea Information Security Agency ,Seoul, Korea.
 Sempill J ‘Under the lens: Electronic workplace surveillance’ (2001) 14 Australian Journal of Labour Law 111 at 115.
 See Bissett K and Riddell A ‘21 arrested in Franklins sacking riot’ Daily Telegraph Mirror 6 May 1994 pp 1 and 4; Hawes R ‘Supermarket pickets arrested’ The Australian 6 May 1994 ,p 2; Tom E, Russell M and Sandham S ‘Police warned of death grip on protesters’ The Sydney Morning Herald 6 May 1994 p 3; Davis M ‘Franklins asks workers for undertaking not to stage wildcat strikes’ Australian Financial Review 10 May 1994 p 3.
 Wright C and Lund J ‘“Under ,the Clock”: trade union responses to computerised control in US and Australian grocery warehousing’, (1997) 13(1) New Technology, ,Work and Employment 3 at 9.
 Russell M ‘Franklins to sack strikers by video’ The Sydney Morning Herald 9 May 1994 p 1.
 As above.
 Russell M ‘Workers back at Franklins’ The Sydney Morning Herald 28 June 1994 p 5; Franklins v NUW  NSW IRComm 77 (Peterson J).
 Industrial Relations Commission of NSW Engineered Standards pp 1-12 referred to in Wright and Lund above note 3 at 9.
 Privacy Committee of New South Wales Invisible Eyes: Report on Video Surveillance in the Workplace Sydney 1995 pp 108-116.
 The Working Party on Video Surveillance in the Workplace Report to the Hon J W Shaw QC MLC Attorney General and Minister for Industrial Relations Sydney 1996 and NSW Law Reform Commission, Surveillance: Issues Paper 12 Sydney 1997.
 Sempill above note 1 at 134.
 As above.
 As above.
 As above.
 As above.
 As above.
 As above.
 Sempill above note 1 at 115.
 Sempill above note 1 at 135.
 See Privacy and Personal Information Protection Act 1998 (NSW) ss 8 and 11.
 See Privacy Act 1988 (Cth) s 7B(3).
 NSW Law Reform Commission, Surveillance: An Interim Report No 98 Sydney 2001 is available at <www.lawlink.nsw.gov.au/lrc.nsf/pages/r98toc>. Privacy NSW’s submission in response ,is available at <www.lawlink.nsw.gov.au/pc.nsf/pages/nswlrcresponse>.
 See Groner J ‘Bench brawl erupts over e-monitoring’ Court Watch 10 September 2001 p 1; Biskupic J ‘Judges debate own privacy’ USA Today p 1A; Bridis T and Simpson GR ‘Judges’ ire stirs debate on web monitoring’ The Wall Street Journal 9 August 2001 p B9; Lewis NA ‘Rebels in black robes recoil at surveillance of computers’ The New York Times 8 August 2001 p A.1; Holland G ‘Judge panel agrees to Internet monitoring policy for federal courts’ Washington Dateline 19 September 2001.
 Electronic Privacy Information Center, Workplace Privacy, at <www.epic.org/privacy/workplace/>.
 Unattributed, ‘Courts in the Act of Monitoring US Judges Shown Leniency in Web Use’, Newswire, ,21 September 2001.
 Gordon P ‘Federal judge’s victory just the first shot in the battle over workplace monitoring’, Privacy Foundation, 20 September 2001, ,at <www.privacyfoundation.org/workplace/>.
 Above note 23.2.
 Unattributed ‘Judges ease surveillance of web use’ The New York Times 20 September 2001 p 15A.
 As above.
 Gips M ‘Judging the impact on workplace monitoring’ American Society for Industrial Security Management 1 January 2001 p 12.
 Above note 25.
 Rosen J The Unwanted Gaze: The Destruction of Privacy in America New York Random House 2000 (see flycover).
 As above p 8.