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7 Dec 2019 19:25
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  •   Home > News > International

    Australians are being watched at work. So what can we do about it?

    Australian employers are collecting increasingly detailed and intimate data about workers. But privacy protections are "complex" and "patchwork", experts say.

    Software that logs each keystroke. Car trackers that monitor location as well as braking and acceleration. Australian employers are collecting increasingly detailed and intimate data about workers.

    Often gathered in the name of health and safety, security and boosting productivity, this data can be incredibly personal.

    When a potential employer asked John* to take a blood test, his first thought was "it's none of their business".

    After applying for a job on a Queensland gas project, a recruitment subcontractor asked him to sign a form allowing the test and other data to be sent overseas.

    John pushed back.

    "What's in your blood is between you and your doctor only, not between you and your potential employer, not even your employer," he said.

    The company SNC Lavalin later backed down after pressure from the Electrical Trades Union (ETU) and ABC News reported the story.

    But the incident raises a bigger challenge: as new technologies allow more data to be collected and shared about how we do our jobs, are Australia's privacy and workplace laws keeping pace?

    New technology, new protections

    Federal regulation of workplace privacy in Australia is "inadequate", according to Kamal Farouque, an employment lawyer at Maurice Blackburn.

    The Office of the Australian Information Commissioner (OAIC) says the Privacy Act doesn't "specifically cover" workplace surveillance, and the law also has an employee records exemption for private companies.

    Such workplaces may need to let current employees know they're collecting data about them. But once it's created, information about things like disciplinary action typically isn't protected by federal privacy rules.

    Then there are state laws, which also vary. Victoria has a Surveillance Devices Act, for example, which prohibits recording in private places like toilets.

    But Mr Farouque says it's not as clear how that applies when devices aren't installed surreptitiously in other locations — when employees are informed there will be GPS tracking, but aren't given much choice.

    "The time is ripe for that to now be regulated, and the need will only grow with the increasingly intrusive use of technology to collect that data," Mr Farouque said.

    Gabrielle Rejouis, from the Center on Privacy and Technology at Georgetown Law in Washington DC, shares these concerns.

    She recently helped propose a Worker Privacy Act that would help limit employer surveillance and return some power to employees in the United States — which typically regulates privacy by sector, such as children's privacy.

    She's concerned about both data collected about a worker — their health profile, for example — but also data generated by them.

    "For instance, if you work housekeeping at a hotel, that might be how many towels you've laundered and how how quickly you did so," Ms Rejouis explained.

    This type of information, known as productivity data, is increasingly ubiquitous in white collar offices. But it's particularly notorious in warehouses.

    In some cases, Amazon employees are reportedly watched for how fast they box items.

    ETU national assistant secretary Michael Wright suggested a high level of surveillance suggests a lack of trust in your own workforce — and reduces motivation.

    He argues workers are being tracked even when it's not strictly necessary for work and safety.

    Take company vehicles that are monitored down to GPS location every hour of the day, even in metropolitan areas.

    "Fair enough if they were park rangers out in the wild," he suggested.

    "They're driving around a capital city ... there is no real workplace safety issue.

    "Tracking is just turning the workplace into a complete panopticon."

    Who is making the decision?

    It's not just about the unpleasant feeling of being watched. In some cases, the use of that data can affect you in unpredictable ways.

    If you're pregnant and take more bathroom breaks, a data system could flag you for not being sufficiently productive.

    Ms Rejouis pointed out that data collected about visitors and staff in a cafe could dictate the number of workers needed at a given time.

    But without human supervision, an algorithm working off that information could issue impossibly unpredictable work schedules.

    "We're seeing data being used to optimise the workplace and ensure that there are as few employees as possible doing as much work as possible," she said.

    The Georgetown Worker Privacy Act proposes that employers not only disclose what data is being collected about employees, but allow them a meaningful opportunity to negotiate its collection and use.

    It would also allow workers to access, correct and delete their data, and prohibits its sale.

    It's important for workers to be able to interrogate data held about themselves, Ms Rejouis says, because especially in the gig economy it often determines access to their job.

    Rideshare drivers, for example, can be automatically fired if they get too many negative reviews.

    "It's very difficult for them to challenge those decisions," she said.

    "There's not a lot of transparency around, 'what are the factors being used to be terminated'?"

    In Australia, some workers have pushed back on data collection: Queensland sawmill worker Jeremy Lee refused to give his fingerprints to his employer as part of a new work sign-in procedure.

    He later won his unfair dismissal decision before the full bench of the Fair Work Commission.

    But Anna Johnston, principal of Salinger Privacy, says Australia's "patchwork" of state and federal laws, as well as the employee record exemption, is creating problems.

    "It's complex for employers to understand, let alone for employees to understand what their rights are," she said.

    John, the potential gas fields employee, said that while alcohol testing made sense on a worksite, a blood sample was "next level stuff".

    He's concerned that the ultimate purpose of data, and especially health data, collected by employers is not always disclosed.

    "Say they're looking at your prostate or something like that," he said.

    "If you have prostate cancer, does that mean you cannot be employed?"

    SNC Lavalin was approached for comment.

    *Not his real name.


    © 2019 ABC Australian Broadcasting Corporation. All rights reserved

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