Workplace Privacy

We thank you for the invitation to make a submission on this important topic.

The Council strongly supports the introduction of workplace privacy legislation.

In a recent article Richard B Bruyer1expressed the following interesting view about privacy:

“Perhaps at its core privacy protects and ensures equality in the sense that we are entitled to equal concern and respect as individuals, and not that we are entitled to do as we please. Such an approach would shift away from viewing privacy as a prerequisite for preventing invasions of various liberty interests to one of maintaining conditions that will make the exercise of those liberty interests possible. So conceptualised, equality would be at the hub and the various liberty interests protected by privacy simply spokes on the privacy wheel.”

When workplace privacy is discussed the role of privacy as a feature of equality rather than of liberty is most strongly highlighted.The equality features of workplace privacy are highlighted in so far as it seeks to ensure that applicants for jobs are treated on their merits and employees are dismissed or disciplined only on the basis of relevant factors.The Council considers the final report of the Victorian Law Reform Commission on Workplace Privacy to be a most impressive document. It sets out a comprehensive case for workplace privacy law and in general terms recommends a structure for the enforcement of those rights which the Council considers acceptable.However in our view there are a number of matters which the Law Reform Commission would leave to standards which in fact should be legislated for:

• Covert surveillance – we support the view of the New South Wales Reform Commission that covert surveillance should be prohibited unless there is a reasonable suspicion of unlawful activity or serious misconduct justifying summary dismissal. In our view there should be no covert surveillance for the purpose of performance monitoring. The balance of the requirements should then be dealt with in the mandatory codes. We reserve our position on whether there should be a need for prior authorisation by a Tribunal or Court.

• Overt surveillance – we accept the approach of the Victorian Law Reform Commission on this topic but do commend the model put forward by the New South Wales Law Reform Commission and in particular the view that there should not be ongoing systematic monitoring.

• Workplace drug testing – in our view the legislation should implement the recommendation of the Privacy Committee of New South Wales that workplace drug testing should be prohibited by legislation other than when:

1. A person’s impairment by drugs poses a substantial and demonstrable safety risk to that person or other people and;2. There is reasonable cause to believe that the person to be tested may be impaired by drugs and;3. The form of drug testing to be used is capable of identifying the presence of a drug at concentrations above acceptable cut off levels which may be capable of causing impairment. We endorse the procedural safeguards recommended by the New South Wales Privacy Committee in relation to drug testing programs. No doubt these are matters which could be refined and be the subject of relevant standards as proposed by the Victorian Law Reform Commission.

• Genetic Testing - We would adopt the position of the Victorian Privacy Commission in its submission to the Victorian Law Reform Commission that there are only two cases in which genetic testing might be justified:

1. For the identification of human remains of military personnel, and;

2. To minimise the combination of crime scene DNA samples for forensic purposes.

In our view genetic testing should be prohibited in all but those circumstances.

• Psychological Testing – controls need to be imposed to ensure that psychological testing is carried out only by qualified persons and that only the result, i.e. whether or not the employee is suitable, is disclosed to the employer, not all the detailed information contained in the test. In addition the codes must require the employer to ensure that the employee is able to discuss the result with a qualified person.

• The legislation should ban the use of unlawfully obtained material in criminal proceedings.We would also add that it is important the information privacy principles be extended to information about employees held by employers to ensure that the information gained by employers, particularly through the surveillance subject of this legislation is not misused and can be accessed by employees.

We trust this is of assistance in your deliberations.