Category: News

Workplace Surveillance in NSW

Generally, the Workplace Surveillance Act (NSW) 2005:

• prohibits the surveillance by employers of their employees at work except where employees have been given notice, or where the employer has a covert surveillance authority.  The notice requirements are outlined below.  Covert surveillance authorities can only be issued by a Magistrate for the purpose of establishing whether or not an employee is involved in any unlawful activity at work;
• applies to camera surveillance, computer surveillance (surveillance of the input, output or other use of a computer by an employee) and tracking surveillance (surveillance by means of an electronic device the primary purpose of which is to monitor or record geographical location or movement);
• extends beyond the workplace to any place where an employee is working;
• prohibits surveillance in a change room, toilet facility or shower or other bathing facility at a workplace;
• restricts and regulates the blocking by employers of emails and Internet access of employees at work.  In particular it prevents employers from blocking access to emails or Internet sites because the content relates to industrial matters;
• provides for the issue of covert surveillance authorities by Magistrates and regulates the carrying out of surveillance under a covert surveillance authority and the storage of covert surveillance records;
• restricts the use and disclosure of covert surveillance records;
• repeals and replaces the Workplace Video Surveillance Act 1998, which applied only to video (i.e. camera) surveillance.

General notice requirements

Written (or emailed) notice must be given at least 14 days prior to any surveillance commencing, indicating the kind of surveillance to be carried out (camera, computer or tracking), how the surveillance will be carried out, when the surveillance will start, whether the surveillance will be continuous or intermittent, and whether the surveillance will be for a specified limited period or ongoing.  For new employees notification must be given before they start work.

 Additional camera/video surveillance notice requirements

Cameras used for the surveillance (or camera casings or other equipment that would generally indicate the presence of a camera) must be clearly visible in the place where the surveillance is taking place.  Signs must also notify people that they may be under surveillance in that place and must be clearly visible at each entrance to that place.  These mirror the requirements under the Workplace Video Surveillance Act 1998.

Additional tracking surveillance notice requirements

There must be a notice clearly visible on the vehicle or other thing that is being tracked, indicating that the vehicle or thing is the subject of tracking surveillance.

Additional computer surveillance notice requirements

Notification: Computer/Internet/email surveillance of an employee must not be carried out unless the surveillance is carried out in accordance with a policy of the employer on computer surveillance of employees at work.  The employee must be notified in advance of that policy in such a way that it is reasonable to assume that he or she is aware of and understands the policy.  The notification requirements are flexible so that employers can meet them in different ways.

It is not true that the Act prevents or even significantly restricts employers from conducting email and internet surveillance.  All the Act requires is that notice of surveillance must be given.

Monitoring and recording: It is also not true that all monitoring or recording of the use of a computer is ‘computer surveillance’.  The Act requires there to be ‘surveillance’, as that term is ordinarily understood.  Computer surveillance therefore does not cover normal business practices such as back-ups of hard drives, network performance monitoring, software licence monitoring, computer asset tracking, computer asset management or the normal saving of documents, because these are not normally considered to be “surveillance” activities. However, if back-ups, for instance, were to be used to conduct surveillance to facilitate the reading of somebody’s emails, that would need to be notified to employees, otherwise it would be considered to be covert surveillance.

This is a common sense approach to the issue of computer surveillance.  There are obviously many functions of a computer that require the recording of activities.  Only surveillance activities, such as reading emails, or watching every web site a person goes to, or logging individual keystrokes, or covert observation of everything an employee does on their machine, require notification.

Emails: The Act also places restrictions on the blocking of emails.  Employers will be required to give notice to an employee on any occasion when an e-mail message sent by or to the employee is blocked (that is, prevented from reaching its intended recipient).  Such notice is not required if the email has been blocked because it was spam, contained a virus, or would be regarded by reasonable persons as being, in all the circumstances, menacing, harassing or offensive (for example, if it is pornography or involved criminal activity or was otherwise unlawful).  It will be unlawful for an employer to block an e-mail message, or access to a website:

• otherwise than in accordance with the employer’s stated policy on e-mail and internet use; or
• merely because the message or website includes information relating to industrial matters.

Internet access: It is not the case that the provisions in relation to access to information relating to industrial matters will require employers to provide Internet access to employees.  Nor will the Act prevent employers from blocking all external Internet access, where previously they allowed such access, unless they do so to prevent their employees obtaining access to industrial information. There may be legitimate business reasons, such as cost considerations, for an employer to not have external Internet access. 

Transport Workers’ Union of New South Wales v Post Logistics Australasia Pty Limited

At first instance and appeal.

The lessons to be taken from this series of proceedings are:

 1          Obtaining alternative work for a redundant contract carrier does not necessarily mean that such work will be regarded as “acceptable alternative work” for the purposes of the Redundancy Determination.

 2          Even where the alternative work is found to be “acceptable alternative work”, the Commission will still exercise its discretion in determining how much, if any, redundancy pay the contract carrier is entitled to receive.

 3          Without taking a nitpicking approach, the NSW Industrial Relations Commission will look at any significant differences in the terms and conditions being offered, compared to those previously enjoyed, in determining how much, if any, redundancy pay the contract carrier should receive.

Redundancy, Redeployment and Retrenchments – the 3 R’s. 

What do these terms all mean for your business and your workforce?  What are the entitlements which flow from redundancy?  Understanding what the legislation requires prior to the terminating of employees on the grounds of redundancy is critical.

LinkedIn Contacts – who owns them?  The employer or employee?

The legal question of the ownership of LinkedIn contacts is getting interesting.  Two of Australia’s leading legal recruitment companies are preparing for a court battle on this issue.

A Sydney-based legal recruiter, who left a top legal recruitment firm Naiman Clarke a few months ago to join another high-profile legal recruiter, Bill Yair, at Yair & Associates, is the person at the centre of the legal dispute.

The recruitment consultant, a former solicitor, had established over the years a wide network of contacts, and during her three-and-a-half years with Naiman Clarke built a large LinkedIn network. When she left Naiman Clarke, she took some time off, and then started work at Yair & Associates and updated her LinkedIn profile to show her new employer.  She then began to post jobs and items of interest to her network.

The recruitment consultant had standard post-employment restraint provisions dealing intellectual property, soliciting of clients and confidentiality in her employment contract with Naiman Clarke.  And, her employment contract also contained a clause requiring her to act in the best interests of Naiman Clarke at all times during her employment. 

The restraint conditions included a six-month restraint preventing her from soliciting Naiman Clarke clients or using its intellectual property, but LinkedIn or social media were not specifically mentioned.

When Naiman Clarke became aware that the recruitment consultant had posted jobs to her network, and had received a response from a candidate in it, it demanded she cease using her LinkedIn network until her restraint period of six-months was expired. Naiman Clarke then took action in the NSW Local Court seeking damages and enforcement of its restraint provisions.

FWA Statistics on General Protections & Unfair Dismissals Claims

FWA has received more than 550 General Protection applications every quarter this financial year, and Unfair Dismissal claims continue to rise, new Fair Work Australia (FWA) data reveals. FWA received 566 General Protections applications in the March quarter, which is in line with the figures for the previous 6 months. The bulk of these applications were finalised, and FWA issued 134 unsuccessful resolution certificates. With Unfair Dismissals, FWA received 3219 applications in the quarter, higher than average. The vast majority of the Unfair Dismissal claims were settled at, or before, conciliation.  At conciliation, FWA continued to deal with the overwhelming majority of the claims before it by telephone, with only 76 conducted in person and one by video conference.  The overall settlement rate at conciliation remained high, at 79%.  The tribunal arbitrated 64 dismissal claims in the quarter, finding 24 were unfair and 40 fair.  It made just 5 reinstatement and 18 compensation orders. 

Small Business & FWA

While 609 Unfair Dismissal applications related to a small business employee, importantly, only 2 were rejected because the dismissal was consistent with the Small Business Fair Dismissal Code.

Implied Terms of Contracts – What Are They?

In addition to the express terms of a common law contract of employment, the contract may also include implied terms.   Implied terms are contractually enforceable provisions which are taken to be part of the contract of employment.

Terms may be implied by fact, implied by custom, implied by the common law, or implied by statute.  These terms do not need to be written into the contract to be enforceable.

The criteria for implying a term in fact include the following:

• It must be reasonable and equitable;
• It must be necessary to give business efficacy to the contract;
• It must be so obvious, that it “goes without saying”;
• It must be capable of clear expression; and
• It must not contradict any expressed term of the contract.

The test at present is whether the implication of a particular term is necessary for the effective operation of a contract of employment.

Courts have held that employees are under legal duties to be obedient and faithful and must provide care and skill to their employer.  The main employee duties are:

1. obedience,
2. fidelity, and
3. care and skill.

1. An employer has the power to give orders to employees and expect them to be obeyed.  This is balanced by employers having to act fairly and reasonably.

2. The duty of fidelity includes:

• employees must serve their employer in good faith,
• employees must act to protect their employer’s interests,
• employees must not make secret profits at their employer’s expense, and
• employees must not disclose confidential information of their employer
• employees must not use their employer’s time for their own self-serving purposes.

3. Employees are expected to carry out their tasks and achieve a standard of skill and competence that can reasonably be expected of someone with their experience and training, including not to unreasonably cause injury or damage in the course of doing their work.

An employer’s duties involve:

• providing a safe working environment for his or her employees,
• a duty to provide work for the purposes of the employment contract,
• a duty to be an employer of good conscience,
• to act fairly and in good faith (this is an emerging doctrine in the courts).

As mentioned earlier, terms in an employment contract can also be implied by custom.  There must be evidence that the custom is so well known that everyone making the contract in that situation can reasonably be presumed to have imported that term into the contract of employment.  This is due to the fact that much of the daily operations of employment are governed by informal understandings and generally by cooperation between the parties.  Employer policies and codes of conduct may be relevant here, for example, an employee may claim redundancy amounts through the incorporation of his/her employer redundancy policy that was introduced to him/her at an induction to the new employment.

NOTE: To ensure that matters are not left to the Courts to decide (or imply) employers should ensure that all important matters are dealt with in the employment contract expressly (i.e. in writing), so to provide certainty in the terms of the relationship.  Drafting of employment contracts is a critical process that requires consideration and care.

Some of the side effects in the workplace of bullying and harassment:

Victims:

• Stress, anxiety or sleep disturbance;
• Panic attacks or impaired ability to make decisions;
• Incapacity to work, concentration problems, loss of self-confidence and self-esteem or reduced output and performance;
• Depression or a sense of isolation;
• Physical injury;
• Reduced quality of home and family life;
• Suicide.

Workplaces:

–       There are more sick days

–       Increased staff turnover

–       Dysfunctional relationships

–       Reduced efficiency and productivity

–       Less motivation and enthusiasm to perform work well

–       Poor morale, erosion of employee loyalty and commitment;

–       Less workplace support,

–       Increased costs associated with recruitment and training;

–       Increased workers’ compensation claims;

–       Increased indirect costs such as management time, engaging mediators or counsellors;

–       Adverse publicity and poor public image.