IEU pushes for the law to address workplace surveillance concerns

The IEU Victoria Tasmania has made a submission to the Victorian Parliament inquiry into workplace surveillance, pointing out that students are a unique source of privacy breaches for employees working in schools.

Whilst the union shares concerns about employers breaching employee privacy through workplace surveillance, the submission pointed out that teachers are also subjected to surveillance by students using personal devices such as smartphones to film or record workers without their consent.

Currently, workers in Victorian non-government schools are not protected from overt or covert surveillance by students beyond the narrow protection on prohibition on communication or publication of private conversations or activities provided by section 11 of the Surveillance Devices Act 1999.

While employers must comply with Australian Privacy Principles (APP), they don’t have to ensure that students adhere to the APPs related to workers.

The IEU’s submission reported students “openly recording them in the workplace”.

In one case, a student had been filming a member and other students “tacitly and without consent”.

“On examination of the students’ device, there was video footage of other staff and students, all of whom appeared unaware of being filmed. The student’s parents complained that their child had been singled out and made an example of in front of their peers and the employer took no further action against the student.”

The IEU also assisted with a Reportable Conduct Scheme case which partially relied on a recording of a member that students had made from their laptop. Our member had not consented to nor were they aware of being recorded. The students shared footage to their friends and were then seen “openly laughing about the event”. The allegations that resulted from this surveillance were ultimately found to be outside the remit of the Reportable Conduct Scheme, but the member still had to endure a distressing disciplinary process because of the improperly obtained footage.

The IEU is not aware of any sanction for the student who carried out the surveillance.

Another member reported that several students were involved in “extensive recording of students whereby workers, without their knowledge or consent, were captured by the recording which was then uploaded to social media”. The students were disciplined but the IEU member “was upset and felt violated” by the incident.

In each example, there was no recourse available to the members under the Surveillance Devices Act.

Our submission stated: “… even if the recordings disclosed ‘personal information’ about these workers, the employer was not responsible for any breach of an APP under the Privacy Act”.

“Any sanction on these students was at the discretion of the employer without input from our members, and as seen in one of the cases, influenced by the response of the parents.”

The IEU expressed its concern about this lack of recourse and protection for workers in non-government education “when they have their privacy infringed or when they are subject to workplace surveillance by persons other than their employer”.

“Indeed, any protection is at the discretion of their employer and usually occurs after damage is done to the worker.”

When considering sanctions for students breaching the privacy of workers, employers can be influenced by parents, who usually pay significant sums of money for their child to attend the school. Employees are often not given a say and are not informed of the consequences for a student found to have done the wrong thing.

“The lack of any statutory protection for workers in this regard jeopardises their privacy, autonomy and dignity. It is easy to see how a student could engage in such surveillance as a means to bully, harass or intimidate a worker. Personal information can be shared via social media and reach a wide audience in very quick time. Reputational damage to workers can follow.”

Consequences

Surveillance of an educator at school can quickly be disseminated across social media, resulting in intimidation and harassment and breaking the trust between workers and students.

Likewise, where a worker is not informed of, or is dissatisfied with, the response of their employer, their workplace relationship may be damaged. Any or all these stresses can lead to detrimental effects on a worker’s mental health. Depending on the nature of any surveillance and its dissemination, the worker may also face physical threats to their safety.

The lack of protection for workers creates a power imbalance. Students can subject a worker to surveillance without that worker’s knowledge, and then an employer can use it to start a disciplinary investigation of the worker. This can result in a worker being stood down from duties during an investigation. Even if ultimately cleared of wrongdoing, the stress that results from such an investigation invariably takes a significant toll on a worker.

Recommendations

The IEU recommended a legislative response, suggesting that the Workplace Privacy provisions of the Surveillance Devices Act could be amended to include ‘an obligation on an employer to take all reasonable steps to ensure that persons who are on their premises do not engage in surveillance of workers without consent of the worker’.

‘Further, an amendment could be made to include a specific prohibition on an employer using surveillance obtained in this manner in a detrimental manner to the worker.’ The IEU believes its members face a ‘unique issue’ because it is not necessarily their employer subjecting them to workplace surveillance.

The IEU remains committed to working collaboratively with all stakeholders to determine the best legal response to this growing problem.

The Inquiry heard 42 submissions and is due to report back to parliament in May next year.