The Australian state of Victoria is set to examine the growing concerns around workplace surveillance through a newly launched parliamentary inquiry. This comes as unions, particularly the Victorian Trades Hall Council (VTHC), push for the introduction of new legislation to limit the use of surveillance technologies in the workplace, including biometric scans. 

The inquiry, initiated by the Victoria’s Legislative Assembly Economy and Infrastructure Committee, aims to explore the legal framework surrounding workplace surveillance, its impact on employees, and how collected data is managed.

At the forefront of this legislative push is the VTHC, representing 40 unions in the southeast state, which argues that current surveillance practices infringe on workers' privacy rights. The union is advocating for the creation of a standalone act, the Privacy In Working Life Act (PIWLA), to address these concerns comprehensively.

“The Privacy in Working Life Act should stand alone from the existing Surveillance Devices Act,” the VTHC asserted in its submission to the inquiry. “It should place limits on the use of optical, audio, visual, digital, and location tracking surveillance against workers.”

The VTHC’s proposal is one of 42 submissions from individuals and organizations that responded to the parliamentary inquiry's call issued in May. These submissions reflect a broad spectrum of opinions on the need for regulatory changes in workplace surveillance practices.

The Legal Landscape of Workplace Surveillance in Victoria

Unlike neighboring New South Wales, Victoria currently lacks specific workplace surveillance legislation. The state relies on a patchwork of existing laws, including the Privacy and Data Protection Act 2014 (Vic), which notably does not address biometric information. This legislative gap has raised concerns about the extent to which employers can monitor employees without adequate oversight or transparency.

The inquiry will focus on assessing the current legal framework, examining its adequacy, and considering potential reforms. Public hearings are scheduled to begin on September 3, 2024, providing a platform for unions, industry groups, legal experts, and academics to voice their perspectives.

Diverse Perspectives on Surveillance Legislation

While unions like the VTHC and the Australian Workers’ Union (AWU) support the introduction of standalone legislation to protect workers’ privacy, there is no consensus on the best approach. Industry groups, including the Business Council of Australia, have urged caution, suggesting that the inquiry should consider ongoing national inquiries and legislative reforms before making any decisions.

“We recommend that the Inquiry consider the outcomes of these processes before assessing any potential need for further regulation of workplace surveillance in Victoria,” the Business Council of Australia stated in its submission.

The proposed PIWLA by the VTHC outlines specific circumstances under which surveillance would be permissible—primarily to ensure the safety of workers and property, and to supervise processes. The rulebook would also include provisions granting workers rights over the information collected about them, addressing a significant gap in the current legal framework.

The AWU has raised concerns about the lack of transparency regarding how surveillance data is managed. “It is completely unknown what each individual employer does with the data that is collected or how long it is held for, who has access to it or if it is disposed of properly,” the AWU stated, highlighting the need for clearer regulations.

Legal and Industry Concerns

Legal organizations such as the Australian Lawyers Alliance (ALA) and the Law Institute of Victoria (LIV) have echoed these concerns, emphasizing that employees are often unaware of their rights regarding workplace surveillance. According to the ALA, many workers in Victoria are largely uninformed about the laws governing surveillance and their implications.

“Employees in Victoria are largely unaware of the laws relevant to workplace surveillance and, by extension, are unaware of their rights,” the ALA pointed out in its submission. The lack of mandatory disclosure from employers about the use of surveillance tools exacerbates this issue, leaving employees vulnerable to potentially invasive monitoring practices without their informed consent.

On the other hand, some industry organizations and companies argue that surveillance technologies, including software systems for planning and optimizing production processes and surveillance cameras for safety, offer significant benefits. These groups contend that such tools are essential for maintaining efficient and secure workplaces.

The inquiry has also shed light on the current state of workplace surveillance in Victoria. A survey conducted by the Australian HR Institute (AHRI) revealed that camera surveillance is the most common form of monitoring, with half of the surveyed organizations using it. Additionally, nearly 20 percent of organizations reported outsourcing surveillance data management to third-party services, while the majority (81 percent) relied on internal procedures.

The survey also highlighted a critical gap in organizational policies: nearly 60 percent of respondents admitted that they do not have formal policies governing workplace surveillance, nor do they seek employee consent for such activities. This lack of policy and consent underscores the need for clearer regulations to protect workers' rights.

The submissions to the inquiry include several legal case studies that underscore the complexities of workplace surveillance. One notable case involved a 2024 dispute between the Australian Manufacturing Workers Union (AMWU) and Laminex, a company that attempted to introduce a facial biometric system for employee attendance. The system, developed by Kronos Australia, was met with resistance from the union, which raised concerns about privacy and data security.

Another significant case, Jeremy Lee v Superior Wood Pty Ltd (2019), involved an employee who refused to provide biometric fingerprint data for an attendance system. The court ruled that the dismissal of the employee was unlawful because the company failed to provide the required notice and did not consider whether the introduction of the biometric system was reasonable.

These cases illustrate the ongoing tensions between employers’ use of surveillance technologies and employees' rights to privacy and autonomy. They also highlight the potential legal pitfalls for companies that fail to navigate these issues carefully.