Wheelwright, Karen --- "Monitoring Employees' Email and Internet Use at Work - Balancing the Interests of Employers and Employees" [2002] JlLawInfoSci 4; (2002) 13(1) Journal of Law, Information and Science 70
[∗] Lecturer, School of Law, Deakin University, Melbourne.
[1] Ronald McCallum, Employer Controls Over Private Life, (2000), 12-13.
[2] Adam Turner, ‘Time Bandits’, The Age (Melbourne), 26 August, 2003, Next 5.
[3] Peter Isajiw, ‘Workplace Email Privacy Concerns: Balancing the Personal Dignity of Employees With the Proprietary Interests of Employers’, (2001) 20 Temple Environmental Law and Technology Journal 73, 75.
[4] Turner, above n 2, Next 5.
[5] Patrick Barkham , ‘Can Surfing Get You the Sack?’ (Guardian Unlimited, www.guardian.com.uk), 16 December 1999, 1 (citing a study by the computer security firm InfoSec).
[6] Working Hours Case July 2002, (2002) 114 IR 390.
[7] Barkham, above n 5, 2.
[8] Ibid.
[9] See eg Equal Opportunity Act 1995 (Vic), s 6(l). The ACTU launched a work-family test case in the AIRC in July 2003.
[10] Peter Knight and Jim Fitzsimons (Clayton Utz), Legal and Commercial Issues for Email and Internet Communications (paper presented at ClearSwift conference, North Sydney, 5 March 2001), 2 - 7.
[11] Turner, above n 2, Next 5.
[12] See eg Equal Opportunity Act 1995 (Vic), ss 85-86; ss 102 and 103.
[13] Micaleff v Holden Ltd, Print PR900664, AIRC, 25 January 2001 (employee who sent pornographic material to friends outside the company breached company diversity policy and dismissal was justified); Toyota v AFMEPKIU, Print T4675, AIRC, 18 December 2000 (downloading images a breach of EEO policy, justifying dismissal); Hale v ANZ Banking Group, Print S4068, AIRC, 14 March 2000 (emails and other communications breached harassment guidelines because the employer said so, even though no complaints of harassment were received. However, the dismissal was held to be harsh in all the circumstances, including the employee’s length of service).
[14] Paul Roth, ‘Workplace Privacy: new HK and UK codes’ [2000] PLPR 52, 52.
[15] Knight and Fitzsimons, above n 10, 1; employers’ concerns are also canvassed by the New South Wales Law Reform Commission in its report, Surveillance: An Interim Report, Report 98, (2001), [7.48].
[16] Colin Fenwick and Breen Creighton, ‘Australia’, in Roger Blanpain (ed), The Evolving Employment Relationship and the New Economy, Kluwer Law International, 2001, 3.
[17] Andrew Schulman, ‘The Extent of Systematic Monitoring of Employee E-Mail and Internet Use’ Privacy Foundation (2001), www.sonic.net/~undoc/extenrpf.html, 5.
[18] Barkham, above n 5, 2.
[19] NSW Law Reform Commission, above n 15, [2.44], citing a February 2000 survey by law firm Freehill, Hollingdale and Page. Mathew Clarke from a large IT company SynergyIT said ‘clients ask him to covertly access employee email almost every week’: Turner, above n 2, Next 5.
[20] Creighton and Fenwick, above n 16, at 10.
[21] Schulman, above n 17, 1.
[22] Schulman, above n 17, 2, 7.
[23] See Institute of Employment Rights at www.ier.org.uk.
[24] Schulman, above n 17, 4. The Foundation notes that telephone use poses potentially as large a concern to employers as email and internet use, but, except in call centres, is not monitored to nearly the same extent.
[25] Creighton and Fenwick, above n 16, 11.
[26] Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889. For example, Colonial State Bank’s email use policy supported ‘responsible personal and social use’ by employees of the bank’s email system: Markland and Colonial Services Ltd, Print PR903570, AIRC, 26 April 2001. Some workplace policies, however, may not be intended to have binding legal effect: see Australian Municipal, Administrative, Clerical and Services Union v Ansett Australia Ltd [2000] FCA 441, [49].
[27] Victorian Law Reform Commission, Workplace Privacy, Issues Paper, (2002), [4.33] – [4.36].
[28] Brackenridge v Toyota Motor Corporation Ltd [1996] IRCA 628; (1996) 142 ALR 99.
[29] Australian Municipal, Administrative, Clerical and Services Union v Ansett Australia Ltd [2000] FCA 441. The main legal issue was whether the employee was dismissed contrary to s 298K(1) of the Workplace Relations Act 1996 (Cth), which prohibits dismissal based on union membership.
[30] Australian Municipal, Administrative, Clerical and Services Union v Ansett Australia Ltd [2000] [49] – [50].
[31] Ibid [82].
[32] CPSU v Seven Network (Operations) Ltd, Print PR927845, AIRC, 18 February 2003.
[33] The way unions’ right to communicate with members through email is severely circumscribed in both of these cases may be a reflection of the sidelining of unions as work relationships in Australia become increasingly individualised. In denying the unions’ request to provide general information to their representatives via Channel 7’s email system, Channel 7 management commented that ‘Seven’s email system is a fundamental part of its business infrastructure and Seven does not lightly allow access to outside bodies such as your own’ (author’s emphasis).
[35] Darling Island Stevedoring and Lighterage Co; ex parte Halliday and O’Sullivan [1938] HCA 44; (1938) 60 CLR 601.
[36] David Kenny and Epic Energy, Print S0947, AIRC, 15 November, 1999, 3.
[37] Concut Pty Ltd v Worrell [2000] HCA 64.
[38] Hugh Collins, ‘Labour Law as a Vocation’ (1989) 105 Law Quarterly Review 468, 480.
[39] NSW Law Reform Commission, above n 15, ch 7; Victorian Law Reform Commission, above n 27, ch 3.
[40] NSW Law Reform Commission, above n 15, [7.50]-[7.51].
[41] Lane v Arrowcrest Group Ltd (1990) 99 ALR 45, 74-75.
[42] In Massoud v SITEL Corporation Ltd, [2001] NSWIRComm 218, for example, Massoud was dismissed in June 2000 for fraudulently causing $1000 of her employer’s funds to be placed in her personal credit card account. To bolster its case, the employer also relied on a ‘snapshot’ of Massoud’s computer files and email box from June 1999, retrieved from the company’s back up network, which revealed that she had downloaded, stored and transmitted by email sexually explicit material contrary to company policy. The case does not reveal whether the employees were warned of the possibility of an audit (whether during or after employment) and makes no mention of the implications of a former employer’s uncontrolled capacity to store, retrieve and use the emails and computer files of former employees.
[43] Isajiw, above n 3, 99-100.
[44] The Federal Privacy Commissioner has observed that the many calls he gets from employees about privacy at work suggests that employees commonly but incorrectly believe that the law provides specific privacy protections: see The Office of the Federal Privacy Commissioner Guidelines on Workplace E-mail, Web Browsing and Privacy 30 March 2000, at privacy.gov.com.au/internet/email.
[45] Roth, above n 14, 52.
[46] In Re Security Arrangements in Retail Stores (1979) NSW Industrial Arbitration Reports 72, 79.
[47] Guidelines on Workplace E-mail, Web Browsing and Privacy, above n 44, 1.
[48] Australian Broadcasting Corporation v Lenah Game Meats [2001] HCA 63, [124].
[49] Grosse v Purvis [2003] QDC 151.
[50] Ibid, [444].
[51] Australian Broadcasting Corporation v Lenah Game Meats [2001] HCA 63, [112]-[124].
[52] For an excellent overview, see Graham Greenleaf, ‘The European Privacy Directive – Completed’ (1995) 2 PLPR 81. The Directive also prohibits the transfer of personal data from EU countries to any countries which do not have adequate data protection laws.
[53] [1997] ECHR 32; (1997) 24 EHRR 523.
[54] David Christie, ‘Employee Surveillance’ (2000) 38 Employment Law Bulletin, 2.
[55] Roth, above n 14.
[56] See eg Privacy Act 1988 (Cth); Privacy Amendment (Private Sector) Act 2000 (Cth); Information Privacy Act 2000 (Vic). For a comprehensive account of legal regulation in Australia as it relates specifically to electronic communications, see Eugene Clark and Maree Sainsbury, Privacy and the Internet (2002).
[57] Media Release, Federal Privacy Commissioner, 18 February 2004, www.privacy.gov.au/news/mdia/04_02print.html. For a discussion of the current exemption, see Margaret Otlowski, ‘Employment Sector By-Passed by the Privacy Amendments’ (2001) 14 AJLL 169.
[58] Victorian Law Reform Commission, above n 27, [4.6]. The Commission made the same assessment of non-statutory protections.
[59] Victorian Law Reform Commission, above n 27, [4.13] and fn 77.
[60] For a detailed discussion of these acts, see Julian Semphill, ‘Under the Lens: Electronic Workplace Surveillance’ (2001) 14 Australian Journal of Labour Law 111, 133-143.
[61] NSW also has the Listening Devices Act 1984 (NSW), which is a general statute that is applicable in the employment context.
[62] Semphill argues that the NSW model offers significantly greater protection for workers than does the Victorian model: Semphill, above n 60, 144.
[63] Victorian Law Reform Commission, above n 27, [4.32].
[64] NSW Law Reform Commission, above n 15, [7.26].
[65] Workplace Relations Act 1996 (Cth), s 170LI.
[66] Victorian Law Reform Commission, above n 27, [4.105].
[67] Ibid [4.35].
[68] Ibid [4.36] – [4.37].
[69] Semphill, above n 60, at 116-125.
[70] Burazin v Blackstown City Guardian [1996] IRCA 371; (1996) 142 ALR 144.
[72] See Creighton and Fenwick, above n16, 13 and the sources cited there.
[73] Semphill, above n 60, 131.
[74] Joellen Riley, ‘Mutual Trust and Good Faith: Can Private Contract Law Guarantee Fair Dealing in the Workplace?’ (2003) Australian Journal of Labour Law 28; Victorian Law Reform Commission, above n 27, [4.26].
[75] See eg Rose v Telstra Corporation, Print Q9292, AIRC, 4 December 1998, where the Commission said the right of employers to control the out-of-work behaviour of employees must be carefully circumscribed.
[76] See eg the unfair dismissal cases cited above, n 13, and David Kenny and Epic Energy, above n 36.
[77] NSW Law Reform Commission, above n 15, [2.43] and the sources cited there.
[78] [2001] NSWIRCComm 333.
[79] Ibid, [15].
[80] Ibid, [87].
[81] Print T4675, 18 December 2000, [24].
[82] [2001] NSWIRCComm 333. The Burrows and Giardini appeals were heard together.
[83] Ibid, [210]-[211]. The dismissal of both officers was held to be harsh, unjust and unreasonable on procedural grounds, including the fact that these officers appeared to have been unfairly ‘singled out’. The NSW Commission admitted to being disconcerted by the fact that 471 members of the NSW Police Service had been detected receiving and/or disseminating pornographic material over the Police Memo System, in breach of policy.
[84] Eaton v Overland [2001] FCA 1834.
[85] Semphill, above n 60, 113.
[86] Ibid, 115.
[87] Victorian Law Reform Commission, above n 27, ch 5.
[88] Above n 44.
[89] www.efa.org.au.
[90] Schulman, above n 17, 9.
[91] Isajiw, above n 3, at 104.