Workplace surveillance: Why working women? Why now?

Workplace surveillance in various forms has always been a component of modern workplace dynamics.

However, the COVID-19 pandemic ushered in a proliferation of surveillance and monitoring practices in an attempt by employers to monitor and manage unprecedented numbers of remotely working employees.

Now in the post-Covid era, new surveillance technologies powered by artificial intelligence (AI) are becoming increasingly common in workplaces in Australia and around the world.

With widespread monitoring and surveillance here to stay, WWQ is raising awareness of the risks that excessive surveillance and monitoring poses to workers, in particular to working women.

WWQ, in collaboration with Wotton Kearney, have produced a report focusing on WWQ’s casework experience and the unique issues that women face in relation to workplace surveillance.

The report makes a number of recommendations to minimise the issues that arise from AI-powered workplace surveillance.

These include machine bias, function creep, right to privacy and employee rights, and seeks to actively engage in the development and implementation of protections from excessive workplace surveillance.

You can find the full report here: Working under the Lens: Protecting Workers’ Rights with AI Powered Workplace Surveillance on the Rise

Our Recommendations

Recommendation 1

WWQ recommends the introduction of a national uniform legislation enacted in all states and territories which regulates workplace surveillance and contains effective protections for workers against excessive or disproportionate surveillance and privacy breaches.

Recommendation 2

WWQ recommends the implementation of a new consent-based framework for the collection of sensitive information in the course of employment, that ensures workers have the right to opt out of certain uses or disclosures of information irrelevant to their work, without repercussions.

Recommendation 3

WWQ supports the introduction of comprehensive, AI-specific legislation to overlay Australia’s existing technology neutral laws which regulates the development and use of AI applications and prohibits AI applications which create an unacceptable risk.

Recommendation 4

WWQ encourages workers to, where possible, engage with their union representatives for assistance in negotiating effective contractual protections against harmful AI applications and excessive workplace surveillance into employment agreements.

Recommendation 5

WWQ recommends that in enacting a national uniform legislation for workplace surveillance, the Parliaments of the states and territories have regard to and adopt the Recommendations in the Final Report of the Committee of the Parliament of Victoria’s Legislative Assembly Economy and Infrastructure as they relate to a new workplace surveillance legislation.

Recommendation 6

WWQ supports the removal of the employee records exemption in the Privacy Act.

Recommendation 7

Workplaces and policy makers should continue to develop a stronger culture of human rights, which are even more critical in the context of rapid technological change.

Recommendation 8

WWQ supports the recommendation that the Australian Government should establish an ‘AI Commissioner’ to provide independent expert advice to government and regulators, and to provide guidance on law and ethics for industry, civil society, and academia.

Recommendation 9

WWQ supports the Australian Unions in seeking a new set of mandatory enforceable agreements that would compel employers to consult with their staff before new AI technologies can be introduced into workplaces.

Resources

Factsheets

Our Employee Factsheet provides a summarised format of our Report to assist you in understanding how workplace surveillance may affect you provides prompts that will assist you in making enquiries of your workplace’s surveillance methods.

Find the Employee Factsheet here: Employee Factsheet

Our Employer Factsheet seeks to inform employers about the risks associated with AI powered surveillance technologies and recommends that human oversight and strict policies and procedures be implemented where these technologies are in place. This will help prevent the risk of adverse action being taken against employees where it is not warranted.

Find the Employer Factsheet here: Employer Factsheet

Workplace Surveillance Policy
1. The Employer is committed to ensuring that any workplace surveillance conducted is reasonable, necessary, and proportionate to the legitimate business interests of the Employer. Surveillance will be conducted in a manner that respects the privacy and dignity of employees and complies with all applicable laws and regulations.
Types of Surveillance
1. The Employer may only conduct surveillance using the following methods:
  1. Monitoring and recording the use of the Employer’s information technology systems, including email, internet usage, and other electronic communications only to the extent it is necessary for the purposes of the Employer conducting its business;
  2. Using CCTV or similar technology to monitor the workplace premises; and
  3. Tracking the location of employees through GPS or swipe card systems.
Notification and Consent
1. Employees will be notified in writing of any surveillance activities that will be conducted, including the type of surveillance, the purpose of the surveillance, and the duration of the surveillance.
Limitations on Surveillance
1. Surveillance will not be conducted in areas where employees have a reasonable expectation of privacy, such as restrooms, changing rooms, and break areas.
2. Surveillance will be limited to work-related activities and will not extend to personal activities or communications, except where the information collected relates directly to the employment relationship, such as:
  1. Where there is a clear social media policy communicated to the Employee, and the Employee breaches that policy; or
  2. Where the Employee uses the Employer’s internet connection or devices for personal activities.
Access to Surveillance Data
1. Access to surveillance data will be restricted to authorised personnel only. Surveillance data will be used solely for the purposes for which it was collected and will not be disclosed to third parties without the employee’s consent, except as required by law.
Review and Complaints
1. Employees have the right to request copies of the surveillance data collected about them. Requests to review surveillance data must be submitted in writing to the Employer.
2. Employees have a right of review of decisions made based on surveillance data and/or made with the use of artificial intelligence. This includes but is not limited to:
  1. Requesting reasons for a decision;
  2. Requesting information on the process and criteria used by the Employer to make the decision; and
  3. Requesting details about any artificial intelligence systems or algorithms used, including the type of data relied on and the role of the artificial intelligence in the decision-making process.
  4. Requesting re-consideration of the decision.
3. Employees who believe that surveillance has been conducted in an excessive or inappropriate manner may file a complaint with the Employer. Complaints will be investigated promptly and thoroughly and in line with any existing investigation policies, and appropriate action will be taken to address any violations.

MODEL CLAUSE: Protecting Employees in the use of AI in the Workplace

MODEL CLAUSE: Protecting Employees in the Use of Artificial Intelligence in the Workplace

[View Download PDF here]

Purpose and Scope
1. This clause outlines the responsibilities and guidelines for the use of Artificial Intelligence (AI) within the workplace to ensure the protection, rights, and well-being of all employees.
2. By adhering to these guidelines, we aim to protect employees and ensure that AI technologies are used in a manner that respects their rights and well-being while minimising risks and negative impacts.
Compliance with Laws and Regulations
1. All employees must comply with all applicable laws, regulations, and guidelines related to the use of AI in the workplace. This includes, but is not limited to, labour laws, data protection laws, privacy regulations, and any industry-specific standards.
Ethical Use of AI
1. AI must be used in a manner that is ethical and does not cause harm to employees. This includes avoiding any use of AI that could result in discrimination, bias, or unfair treatment based on race, gender, age, disability, or any other protected characteristic.
Transparency and Accountability
1. Employees must be informed about the purpose, scope, and impact of AI applications that affect their work when commencing employment or when a new AI application is being implemented. The employer is accountable for the outcomes of AI systems and must take responsibility for any unintended consequences that impact employees.
2. A formal consultation process must be held with Employees who will be affected by the AI.
Data Privacy and Security
1. Employees’ data used in AI systems must be collected, stored, and processed in compliance with data privacy and security standards. Appropriate measures must be implemented to protect employees’ data from unauthorised access, use, or disclosure.
Continuous Monitoring and Improvement
1. AI systems must be continuously monitored to ensure they operate as intended and do not produce harmful or biased outcomes for employees. The employer should seek to improve AI systems by incorporating feedback and advancements in AI technology.
2. Employees should have the opportunity to provide feedback after the implementation of AI.
Training and Awareness
1. The employer will provide regular training and resources to employees to ensure they understand their rights and responsibilities regarding the use of AI. Employees are expected to participate in these training sessions and stay informed about best practices and emerging issues in AI.
Reporting and Addressing Issues
1. Employees must be able to promptly report any concerns or issues related to the use of AI to their supervisor or the designated AI ethics officer without fear of retaliation. The employer will investigate and address any reported issues in a timely and appropriate manner.
Consequences of Non-Compliance
1. Failure to comply with this clause may result in disciplinary action, up to and including termination of employment. The employer reserves the right to take legal action if necessary to address any violations of this clause.

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