qld eils seminar: emerging issues in workplace privacy

EMERGING ISSUES IN WORKPLACE

PRIVACY

Employment and Industrial Law SectionUnion Seminar

Thursday 22 August 2013

Maurice Blackburn acknowledges the traditional owners of the land on which we gather, and we pay our respects to elders

past and present.

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WELCOME

Part 1 - Surveillance and Monitoring in the Workplace

Part 2 - Privacy

Morning tea break

Compensation Entitlements for Serious / Terminal Illnesses and Diseases

Part 3 - Employee Information and Union Right of Entry

Part 4 - Social Media and its Impact on Employment

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OUR HISTORY

Founded in 1919

Maurice Blackburn – distinguished lawyer and Labor member of Parliament.

Dedicated to worker’s rights.

Defence of underprivileged groups.

Determined to make a genuine difference for people who need help

Fight hard for best possible outcome.

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OUR SERVICES

Employment & Industrial Law

WorkCover

Road Accident Injuries

Medical Negligence

Asbestos Diseases

Superannuation & Disability Insurance

Public Liability

Faulty Products

Comcare

Will Disputes

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OUR OFFICES

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Kamal Farouque, PrincipalEmma Thornton, Associate

PART 1: SURVEILLANCE DEVICES

Surveillance Devices

Use of tracking devices

Use of listening devices

Use of optical surveillance devices

Implications for employment relationship by secret use of surveillance

devices

CONTENTS

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SURVEILLANCE LAWS IN QLD

Queensland relies generally on the common law regarding surveillance issues.

There is no legislation limiting surveillance in this state.

The trend of the Courts has been to favour the interests of employers over

employees.

The employer’s power to command and the employee’s duty to obey reasonable and

lawful directions provides a mechanism for the common law to justify surveillance.

From the perspective of the common law of employment there is no reason in

principle why surveillance should be distinguished from human supervision.

The legal right to command would have no practical utility without the power to

survey.

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USE OF TRACKING DEVICES AND VIDEO SURVEILLANCE - VICTORIA

There is no legislation in Qld similar to that in Victoria or New South Wales.

Surveillance Devices Act 1999 (Vic)

Prevents the installation, use or maintenance of a tracking device to determine

the geographical location of a person without the express or implied consent of

that person;

Express or implied consent requires notification that the device is present and

driving the vehicle, or knowledge that device is present and then driving the

vehicle.

Prohibition on installation, use or maintenance of a optical surveillance device to

record or observe a private activity to which a person is not a party without

express or implied consent of each party.

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USE OF TRACKING DEVICES AND VIDEO SURVEILLANCE

“Private activity” is an activity carried on in circumstances that may reasonably

be taken to indicate that the parties to it desire to be observed only by

themselves but does not include:

a) Activity carried on outside a building

b) Activity carried on in circumstances in which the parties ought

reasonably to expect that it may be observed by someone else

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USE OF TRACKING DEVICES AND VIDEO SURVEILLANCE - NEW SOUTH WALES New South Wales has legislation to control the issue of video surveillance in the

workplace – Workplace Surveillance Act 2005.

This act requires:

Employees to be notified in writing of:

(a) the kind of surveillance (camera, computer or tracking) prior to commencing

work

(b) how the surveillance will be carried out, and

(c) when the surveillance will start, and

(d) whether the surveillance will be continuous or intermittent, and

(e) whether the surveillance will be for a specified limited period or

ongoing.

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USE OF TRACKING DEVICES AND VIDEO SURVEILLANCE

Camera surveillance of an employee must not be carried out unless:

cameras used for the surveillance are clearly visible in the place where the

surveillance is taking place

and signs notifying people that they may be under surveillance in that place are

clearly visible at each entrance to that place.

Tracking surveillance of an employee that involves the tracking of a vehicle or

other thing must not be carried out unless there is a notice clearly visible on the

vehicle or other thing indicating that the vehicle or thing is the subject of tracking

surveillance.

An employer must not carry out any surveillance of an employee of the employer in

any change room, toilet facility or shower or other bathing facility at a workplace.

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USE OF TRACKING DEVICES AND VIDEO SURVEILLANCE An employer must not carry out, or cause to be carried out, surveillance of an employee of

the employer using a work surveillance device when the employee is not at work for the

employer unless the surveillance is computer surveillance of the use by the employee of

equipment or resources provided by or at the expense of the employer.

An employer must not carry out, or cause to be carried out, covert surveillance of an

employee while the employee is at work for the employer unless the surveillance is

authorised by a covert surveillance authority. An employer to apply to a Magistrate for the

authority.

A covert surveillance authority that is issued to an employer or authorises the covert

surveillance generally of any employees while at work for the employer but only for the

purpose of establishing whether or not one or more particular employees are involved in

any unlawful activity while at work for the employer.

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USE OF TRACKING DEVICES AND VIDEO SURVEILLANCE - ACT Workplace Privacy Act 2011 (ACT)

No surveillance in change rooms, toilets, bathrooms, first aid rooms, sick bay,

parents room, prayer room.

Employers to notify employees of surveillance (optical and data surveillance) or seek

Magistrate approval for covert surveillance – necessary to detect unlawful activity

Same for video, tracking devices and data surveillance as NSW.

Limited rights for workers to access data held on them by the employer.

Employers prohibited from surveillance when the employee not in the workplace

except when employee is using employer provided computer resources, where a

tracking device is in place that cannot be removed or the employer is a law

enforcement agency.

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Industrial Relations Act 1999 (Qld) includes surveillance in the workplace as

an industrial matter – dispute options for state system employees.

Information Privacy Act 2009 (Qld) regulates collection, handling and access

to personal information in the Government’s possession.

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Criminal Code 1899 (Qld) – misdemeanour for a person to visually record or

observe a person performing a private act or in a private place without

consent or where the recording is made with the purpose of observing the

person performing a private act (toileting, showering, intimate sexual activity

and people in part undress.)

Law enforcement is an exemption.

Penalty is maximum 2 years imprisonment.

A person who distributes prohibited visual recordings without consent also

commits a misdemeanour, with the same maximum penalty.

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COMPUTER SURVEILLANCE

Workplace Surveillance Act NSW says this surveillance is not authorised

unless it is carried out in accordance with the employer’s policy and the

employee has been notified in advance in such a way that it is reasonable to

assume the employee knows and understand the policy.

Office of the Information Commission has published guidelines on

workplace email, web browsing and privacy.

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USE OF TRACKING DEVICES AND SURVEILLANCE

Industrial responses may include:

Clauses in EBAs to regulate the use of tracking devices and other

surveillance and the purposes for which information may be used

Consultation, no extra claims and dispute resolution clauses

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USE OF LISTENING DEVICES

Telecommunications (Interception and Access) Act 1979 (Cth) (Interception

Act)

Invasion of Privacy Act 1971 (Qld)

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USE OF LISTENING DEVICES – INTERCEPTION ACT Interception Act

Prohibits the interception of communications passing over a

telecommunications systems

Four elements

Listening to or recording, by any means

A communication (speech, sounds, date, text, images, signals)

In its passage over a telecommunications system

Without the knowledge of the person making the communication

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Covered by Part 4 of the Invasion of Privacy Act 1971

S43(1): a person is guilty of an offence against this Act if the person uses a

listening device to overhear, record, monitor or listen to a private

conversation

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Penalty:

Up to 2 years in prison or;

40 penalty units = $4,000

Exception:

s43(2)(a) Where the person using the listening device is a party to the

private conversation; or

S43(2)(b) The conversation is unintentionally overheard by means of a

telephone

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What is a private conversation?

Any words spoken by one person to another person in circumstances

that indicate that those persons desire the words to be heard or listened

to only by themselves or themselves and some other person but not

circumstances where either person ought reasonably to expect the

words may be overheard, recorded, monitored or listened to by some

other person.

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Definition of “private conversation” has a subjective and objective test

Subjective test: Parties must hold a desire for the conversation to be heard

by themselves and that the desire is reasonable

Objective test: Private conversation does not include circumstances in

which the parties to it ought reasonably to expect that it may be overheard

by someone else

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If you record the information, as a party to the conversation, what can you do with it?

Can’t communicate or publish the contents to any other person (either the recording or

a transcript) unless (s45(2)):

You have the consent of all the parties to a conversation; or

In the course of legal proceedings – civil or criminal before any court, proceedings

before any tribunal in which evidence is or may be given and in any part of these

proceedings; or

Is not more than is reasonably necessary in the public interest or for the protection

of lawful interests of that person.

An offence to publish if it doesn’t fit these criteria

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If the evidence of a private conversation has been unlawfully obtained,

evidence of the recorded conversation may not be given in any civil or

criminal proceedings. (s46)

A person is guilty of an offence if they publish or communicate a private

conversation that they have become aware of because of a recording and

they were not party to that conversation.

But even if a person, party to a private conversation in the workplace,

lawfully records the information it may result in other issues for the

employment relationship.

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EVIDENCE ACT (CTH)

S138 (1): Evidence that is obtained:

a) Improperly or in contravention of an Australian law; or

b) In consequence of an impropriety or of a contravention of an Australian

law;

is not to be admitted unless the desirability of admitting the evidence

outweighs the undesirability of admitting evidence that has been obtained in

the way in which the evidence was obtained.

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EVIDENCE ACT (CTH)(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into

account:

a) the probative value of the evidence; and

b) the importance of the evidence in the proceeding; and

c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of

the proceeding; and

d) the gravity of the impropriety or contravention; and

e) whether the impropriety or contravention was deliberate or reckless; and

f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person

recognised by the International Covenant on Civil and Political Rights;

g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to

the impropriety or contravention; and

h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

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RECORDINGS IN EVIDENCE

The argument has been tried at FWC that as rules of evidence do not

strictly apply that evidence obtained by way of unlawful or covert recordings

should be admitted

The argument hasn’t got very far

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SECRET USE OF SURVEILLANCE DEVICES Secret use of surveillance devices by employer or employee, may

constitute conduct which breaches the implied term of trust and confidence

(even if the conduct did not breach Invasion of Privacy Act).

FWC or Court has discretion to admit evidence (even if illegally obtained)

but may exclude such evidence

Obligation to discover documents in any Court discovery process

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SECRET USE OF SURVEILLANCE DEVICESTHOMPSON v JOHN HOLLAND See Daran Thompson v John Holland Group Pty Ltd [2012] FWA 10363

(Williams C):

Employee secretly taped meeting with managers

Employee played recording of meeting to another co-worker

Evidence Act provides general guidance

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THOMPSON v JOHN HOLLAND

Conduct was held to be a valid reason for termination:

breached WA State legislation (no secret recordings even by parties to

the conversation) and following earlier authority should not be admitted.

This separate breaches of the WA legislation – making the recording

and replaying to a third party were each sufficient on their own to

warrant his termination.

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THOMPSON vJOHN HOLLAND

Regardless:

Non consensual taping and playing of tape was held to breach code of ethics of the

employer (employees to act with integrity towards each other) and relationship of

trust with other employees.

This in turn caused the relationship of trust and confidence between the applicant

and the employer was destroyed by the Applicant’s actions.

Applicant failed to provide evidence of any lawful interest of his that he was

protecting by making and replaying the secret recording (because he did not make

out that the project manager was threatening his employment. The conversation did

not have the potential to affects his lawful interests).

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SECRET USE OF SURVEILLANCE DEVICES LEVER v ANSTO Ron Lever v Australian Nuclear Science and Technology Organisation

[2009] AIRC 784 (Drake SDP)

Long and difficult dispute between the union delegate and the employer.

Investigation into misconduct – applicant secretly recorded disciplinary

meetings and was terminated, in part, because of it.

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LEVER V ANSTO

Secretly taping the disciplinary meeting was misconduct which was a valid

reason for his termination.

Applicant knew the employer would be outraged if he asked to tape record

the meetings. He knew that it was objectively inappropriate.

Secretly recording the meetings was deliberate misconduct.

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LEVER v ANSTO

Lever v ANSTO [2009] AIRC 784 (Drake SDP)

[103] Applying ordinary Australian community standards I do not accept that

any employee or any employer would be content to have any meeting they

were attending secretly tape recorded. The ordinary conduct of personal,

business and working relationships in our community is predicated on the

basis that if there is to be any record of a meeting it will be agreed in

advance. Anything else is quite properly described as sneaky. Its very

sneakiness makes it abhorrent to ordinary persons dealing with each other

in a proper fashion.

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SECRET USE OF SURVEILLANCE DEVICESWINTLE v RUC Wintle v RUC Cementation Mining Contractors Pty Ltd (No. 3) FCCA 694, 12 July

2013 (Lucev J, Federal Circuit Court).

Recording made inadvertantly

Both parties consented

Considering the Evidence Act: even if the recording has been obtained improperly or

in consequence of an impropriety, or in contravention of a law, the desirability of it

being admitted outweighed exclusion because:

It is the best evidence available of what occurred

An actual recording is likely to assist significantly with the question in issue

regarding undue influence or pressure exerted

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SECRET USE OF SURVEILLANCE DEVICESHASLAM v FAZCHE PTY LTD Haslam v Fazche Pty Ltd t/as Integrity New Homes [2013] FWA 5593, 12 August 2013 (Wilson

C).

2 recordings were made of 2 meetings between the applicant and her managers, and were made

without the knowledge of the managers.

Held:

Evidence Act is relevant, but to be considered within the context of the Fair Work Act.

The recordings were made in contravention of the relevant SA legislation (Listening and

Surveillance Devices Act 1972) because they were made without the knowledge of the

managers.

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HASLAM v FAZCHE PTY LTD

The recordings were made improperly or in contravention of an Australian

law

The recordings will unlikely determine the Applicant’s claims

Therefore, desirability of admitting the evidence does not outweigh the

undesirability of admitting it – recordings not to be admitted.

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PART 2: PRIVACY

PRIVACY ACT 1988 (CTH)

The Privacy Act 1988 (Cth) gives effect to Australia’s agreement to implement

guidelines surrounding protection of privacy and trans-border flows of personal data

adopted in 1980 by the OECD as well as our obligations under Art 17 of International

Covenant of Civil and Political Rights.

It regulates the collection, disclosure and use of personal information.

The Act operates by the use of 11 Information Privacy Principles (IPPs) and 10

National Privacy Principles (NPPs).

The IPPs are somewhat limited in their application because they apply only to

Commonwealth government agencies and government agencies of the ACT.

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PRIVACY ACT 1988 (CTH) The Act operates by the use of 11 Information Privacy Principles (IPPs) and 10 National Privacy Principles

(NPPs).

The IPPs apply only to Commonwealth government agencies and government agencies of the ACT.

The NPPs are broader in their provision. They apply parts of the private sector except “small business operators”

NPP 1: Collection

NPP 2: Use and disclosure

NPPs 3–4: Information quality and security

NPP 5: Openness

NPP 6: Access and correction

NPP 7: Identifiers

NPP : Anonymity

NPP 9: Trans border data flows

NP 10: Sensitive information43

PRIVACY ACT 1988 (CTH)- EXEMPTIONS

The Privacy Act is limited in its relevance to employees for the following reasons:

Acts or practices by a private organisation that is or was an employer, in relation to ‘employee records’, are exempted from the Act’s operation if the acts or practices directly relate to a current or former employment relationship.

Employee records’ is broadly defined under the Act: "employee record", in relation to an employee, means a record of personal information relating to the employment of the employee. The Act sets out a long list of examples:

Record of engagement, training, disciplining, resignation, termination of the employee

Terms and conditions of employment

Contact details

Performance or conduct, hours of work, pay, union membership, leave, taxation, banking or superannuation.

Privacy Act does not apply to a Small Business Operator ie a business with an annual turnover of $3million or less

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PRIVACY ACT 1988 (CTH) – AMENDMENTS

The Privacy Amendment (Enhancing Privacy Protection) Act 2012 was passed in

2012. The Act will commence on 12 March 2014

The Act includes a set of new, harmonised, privacy principles that will regulate the

handling of personal information by both Australian government agencies and

businesses. These new principles are called the Australian Privacy Principles

(APPs).The APPs will replace the National Privacy Principles and Information Privacy

Principles

While these reforms streamline the Act, the amendments do not alter the exemptions

which limit this act from having broad applicability to the employment context.

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INFORMATION PRIVACY ACT 2009 (QLD)

• Regulates the collection and handling of personal information in the public sector

• 11 IPPs apply to public sector agencies generally • 9 NPPs apply to Queensland Health • QLD IPPs and NPPs closely mirror Commonwealth IPPs

and NPPs• no employee records exemption • Complaints for breaches of NPPs and IPPs are made to

the agency, if unresolved the Information Commissioner and ultimately to QCAT

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OTHER OBLIGATIONS

Privacy obligations may arise under contract of employment or EBA

Contract of employment (mutual trust and confidence term)

Emerging Tort of Privacy

Law Reform to improve obligations?

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Trent Johnson, Senior Associate

COMPENSATION ENTITLEMENTS FOR

SERIOUS / TERMINAL ILLNESS AND DISEASES

WHO DO WE ACT FOR?

Employed workers

Sub-contractors

Self-employed workers

Spouses and other family members

Dependants

Home renovators

Estates / Executors

Retirees/Pensioners

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WHO CAN MAKE A CLAIM?

Not limited to workers

Not limited to those exposed in QLD, Vic or NSW

Not limited to those exposed in Australia

Those who are retired or perform home duties

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WHO DO WE CLAIM AGAINST?

Employers / Head contractors

Manufacturers / producers of carcinogenic products (including asbestos)

Owners / occupiers of premises

Workers’ compensation insurers

Public liability insurers

Both Australian and overseas insurers

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THE QUEENSLAND POSITION → Statutory (WorkCover Qld or self-insurer)

→ Common law (Queensland Courts)

In Qld, there are 2 avenues of compensation available to sufferers of latent

onset/terminal diseases:

WorkCover Qld (or self insurer e.g.. Qld Rail) – Statutory insurers governed

by the respective workers’ compensation legislation in Qld

District or Supreme Courts – general Courts not specifically geared for

asbestos/terminal illness claims

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QUEENSLAND TIME LIMITS Workers’ compensation claims

6 months from date of diagnosis or death (if no earlier diagnosis) – all

latent onset claims

Can extend in limited circumstances but no ongoing treatment costs

Common law (negligence) claims

Dust related conditions - No time limit but must be filed within lifetime

otherwise vast majority of entitlements extinguished

Non-dust related conditions - 12 months from date of diagnosis or

becoming aware of material fact of a decisive character – still need to be

filed within lifetime

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DUST-RELATED CONDITIONS Aluminosis

Asbestosis

Asbestos induced carcinoma

Asbestos related pleural disease

Bagassosis

Berylliosis

Byssinosis

Coal dust pneumoconiosis

Farmers’ lung

Hard metal pneumoconiosis

Mesothelioma

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DUST RELATED CONDITIONS (CONT.)

Silicosis

Silicotuberculosis

Talcosis

Any other pathological condition of the lung, pleura or peritoneum

attributable to dust

Does not include illness related to tobacco

WHAT IS ASBESTOS?

Asbestos is a naturally occurring group of

minerals

Used for:

Building products;

Piping;

Insulation materials;

Brake lining and;

Other friction products.

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ASBESTOS DISEASES

Since 1945 about 7,000 Australians have died from mesothelioma

This figure is expected to rise to 18,000 by 2020

More than 700 deaths per year in Australia from mesothelioma alone

Other asbestos related cancers may cause between 30 and 40,000 deaths

by 2020

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ASBESTOS DISEASES

Asbestosis

Asbestos related lung cancer

Mesothelioma

Asbestos Related Pleural Disease

(ARPD)

Pleural plaques

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PEOPLE MOST LIKELY TO DEVELOP ASBESTOS RELATED DISEASE

Asbestos miners

Asbestos product manufacturers

Maritime workers

Carpenters

Plumbers

Electricians

Motor mechanics

Recent trends (bystander exposure)

such as home renovations, washing

overalls covered with asbestos

Future trends … DIY home

renovators/removal of floorings

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COMMON LAW DAMAGES General damages for the pain and suffering of the victim as a result of their

illness

Loss of expectation of life

Past and future out of pocket expenses

Cost of domestic assistance provided by family members – if family provide care

– plaintiff can claim – thresholds apply

Gratuitous care – provided by the plaintiff – if the victim was helping family

members, child care etc., the plaintiff can claim at commercial rates – thresholds

apply

Past and future economic loss

Past and future superannuation entitlements

Medical care costs, including palliative care

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RECENT CASES

Amaca Pty Ltd v King [2011] VSCA 447

62 year old former machinist

Performed repair work at factory owned and operated by James Hardie

& Coy in Welshpool WA

Jury awarded $1,150,000 (including $760,000 for pain and suffering

and loss of enjoyment of life)

Supreme Court of Victoria upheld decision

High Court refused leave to appeal

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RECENT CASES

Mario Perez v The State of New South Wales

68 year old former diesel fitter

Employed as a diesel fitter for the Urban Transport Authority from 1978

to 1988 at Chullora Bus Depot

Exposed to asbestos engine gaskets, as well as asbestos dust during

the removal of the depot’s roof

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RECENT CASES

• Mario Perez v The State of New South Wales

• Provided care and domestic services for: infant grandsons;

granddaughters; wife

• Dust Diseases Tribunal awarded $1,318,506.24

• Defendant appealed

• Expedited hearing in court of appeal – heard 8/5/2013

• Rehearing in DDT – heard on 9 June 2013

• Currently waiting on outcome of rehearing by DDT Judge

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SUPERANNUATION AND DISABILITY INSURANCE CLAIMS

What is Superannuation?

Superannuation has been compulsory since 1992

Almost everyone in the workforce has had superannuation at some stage

Employer currently pays minimum 9.25% of salary into a super fund

(increasing to 12% by 2020)

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DEATH BENEFITS

Most Super funds provide automatic life insurance to their members.

Binding and non-binding nominations

Binding nominations (automatically lapse after 3 years) – The Trustee

MUST pay to the person you have nominated. Only certain people can be a

binding nominee i.e. dependants

Nominated beneficiary (or non-binding) – is a guide to the wishes of the

deceased but the Trustees can decide otherwise if they think appropriate.

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DISABILITY BENEFITS

Total and Permanent Disability (TPD) Benefits:

Insurance benefits that can be claimed if you are unable to perform the work

that you are reasonably trained or qualified to do by education training and

experience.

You do not have to be unable to do ALL work, just the work you have the skills

to do.

Total and Temporary Disability (TTD) Benefits:

Usually called income protection or salary continuance

Usually pay a monthly benefit for 2 years, 5 years, until age 65 etc.

Multiple claims?

Yes for TPD

No for TTD/ Income Protection

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TERMINAL ILLNESS BENEFITS 1 July 2007 legislative amendments

You can access your super if you have a life expectancy of less than 12

months, and any benefits released are entirely tax-free.

Later changes made by most Super Funds/Insurers mean that many people

can claim their life/death insurance benefits whilst they are still alive.

How long does a terminal illness claim take?

Anywhere from 2 weeks to 3 months depending on the claim and

whether documents have been completed correctly.

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ANY QUESTIONS?

Important that legal advice be obtained as soon as possible after diagnosis

Trent Johnson

Senior Associate – Asbestos and Dust Diseases

Ph: (07) 5430 8743

Mob: 0409 898 128

E: [email protected]

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PART 3: EMPLOYEE INFORMATION AND UNION

RIGHT OF ENTRY

CONTENTS

Obligations of unions officials with employee information Restricting rights of entry in cases of misuse Case study: baiada poultry

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RIGHTS AND OBLIGATIONS OF PERMIT HOLDERS RELATING TO DOCUMENTS Section 482(1)(C) provides a permit holder with the right to inspect, and make copies of,

records and documents directly relevant to a suspected contravention (other than non-

member records or documents which do not substantially relate to the member’s

employment s482(2A))

The note to that section prescribes that the use or disclosure of personal information

obtained under this section is regulated under the Privacy Act – but there is the exemption

for employee records.

Section 504 provides that a permit holder must not use or disclose information or a

document obtained by right of entry for a purpose that is not related to the investigation or

rectification of the suspected contravention, subject to some exceptions.

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EXCEPTIONS TO PROHIBITIONS ON USE OR DISCLOSURE The person reasonably believes that use or disclosure is necessary to lessen or prevent a

serious and imminent threat to an individual’s life, health or safety, or a serious threat to public

health or safety;

The person has reason to suspect that unlawful activity has been, is being or may be engaged in,

and uses or discloses the information or document as a necessary part of an investigation of the

matter or in reporting concerns to the relevant person or authorities;

The use or disclosure is required or authorised by or under law;

The person reasonably believes that the use or disclosure is reasonably necessary for a range of

specified purposes by an enforcement body (within the meaning of the Privacy Act 1988);

if the information is, or the document contains, personal information (within the meaning of the

Privacy Act), the use or disclosure is made with the consent of the individual to whom the

information relates.

RESTRICTING RIGHTS IN CASES OF MISUSE OF RIGHTS Section 508 provides for the FWC to restrict permit rights of unions or officials (including

revocation, suspension or the imposition of conditions) if satisfied that a union, or union official,

has misused their permit rights

An application can be brought by an inspector, or the FWC can act on its own initiative In

“exceptional circumstances” (see Re: NUW [2011] FWA 4096 - Baiada)

Misuse can include:

Repeatedly exercising rights with the intention of, or with the effect of, hindering, obstructing

other otherwise harassing an employer or occupier;

Encouraging a person to become a union member in an “unduly disruptive” manner;

Acting with a collateral intent; or

Acting with an improper purpose.

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CASE STUDY: BAIADA POULTRY (RE: NUW [2011] FWA 4096)

NUW embarked on a campaign at Baiada Poultry site in South Australia.

Two NUW officials entered Baiada pursuant to an ex parte FWA application and order

obtained to access non-member records, and an exemption certificate issued (which

allows no advance notice of an entry to be provided). The entry was purportedly to

investigate underpayment contraventions.

In the entry, the officials:

Obtained access to non-member contact details, which were subsequently used

to send personalised letters to employees regarding a union meeting; and

Filmed video footage of employees working at the site, which was published on

the NUW website and aired on ABC’s Lateline;

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CASE STUDY: BAIADA POULTRY (RE: NUW [2011] FWA 4096) FWA held that the actions of four NUW officials constituted a misuse of rights by:

covertly filming the Baiada premises while on the premises pursuant to an Entry Order (for

purposes unrelated to the underpayment investigation);

using the names of employees obtained through an order for access to non-member records

on invitations to union meetings (for purposes unrelated to the underpayment investigation);

and

disclosing to Baiada employees information obtained through access to non-member

records.

FWA held that there is no right under the FW Act to covertly film an employer's workplace without

authorisation.

Order made against NUW not to film or record workplaces while exercising right of entry (unless

authorised).

Individual officials’ permits suspended.



PART 3: SOCIAL MEDIA AND ITS IMPACT ON EMPLOYMENT

CONTENTS

The Scale of Social Media Social Media defined The blurring of public and private Social Media, Misconduct and Unfair Dismissal

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THE SCALE OF SOCIAL MEDIA

It is clear that Australians are embracing social media such as Twitter, Instagram,

MySpace and Facebook

In 2010, the Nillson company reported that Australians had the highest global

average for engaging with social media, an average of 7 hours per month per person

engagement with social media

Facebook has 11,489,380 Australian users.

25 % of these users don’t bother with privacy settings

Twitter has 2,167,849 Active Australian Users

Since the dawn of twitter there have been 164 billion tweets

Instagram has 1,083,924 Active Australian Users

More than 5 million pictures are uploaded to Instagram every 24 hours

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SOCIAL MEDIA DEFINED

Social media refers to Internet sites and Mobile apps which allow individuals

and groups to develop content and share information via online networks of

people

Includes sites such as Facebook, Instagram, Twitter, Vine, MySpace and

You Tube

Is a form of mass communication

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THE PUBLIC AND THE PRIVATE: THE DIMINISHING LINE

In Rose v Telstra, Ross VP analysed when out of hours conduct can give

rise to a valid termination, namely when:

Objectively viewed, the conduct is likely to cause damage to the

relationship between the employee and employer, or

The conduct damages the employer’s interests, or

The conduct is incompatible with the employee’s duty as an employee

The conduct must be of such a nature as to indicate a repudiation of the

employment contract by the employee

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A RECENT EXAMPLE FROM THE NEWS… Flight Centre employee Alex Moros wrote on Charlotte Dawson’s (judge of Australia’s Next Top

Model) Facebook page the following comment about her and fellow judge Alex Perry:

“Judges Charlotte Dawson, and Alex Perry Jeesus Christchurch guys lay off the botox and

fillers!!! You two need help.”

Dawson went to Moros’ page and worked out he was an employee of Flight Centre. She sent the

following to Flight Centre management:

“While we anticipate some people are going to have opinions about the show and even express their

distaste for the appearance of participants and judges, Alex and I feel that posts of this nature do not

reflect well on Flight Centre. I am a 47-year-old woman who has Botox. I don’t have fillers. Whilst

Andrew has every right to express his disgust at the condition of our faces, I don’t believe our choices

should be slammed by a Flight Centre employee.”

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AN EXAMPLE FROM THE NEWS…

Flight Centre has publically stated that Morow will not be disciplined in any

way as a result of the incident:

“We are aware of what has been said publicly. From our point of view, the

comment was made on his personal account in his personal time so it is not an

issue for us to be commenting on. He has formally written an apology to both

Charlotte and Alex from his personal email.”

Source: “He crititised her on Facebook. And she went straight to his boss.”

http://www.mamamia.com.au/social/charlotte-dawson-social-media/?utm_source=rss&utm_medium=rss&utm_campaig

n=charlotte-dawson-social-media

http://www.mamamia.com.au/social/charlotte-dawson-social-media/?utm_source=rss&utm_medium=rss&utm_campaign=charlotte-dawson-social-media

http://www.mamamia.com.au/social/charlotte-dawson-social-media/?utm_source=rss&utm_medium=rss&utm_campaign=charlotte-dawson-social-media

SOCIAL MEDIA AND EMPLOYMENT

This is the major area where social media and employment law intersect

The cases appear to fall into a few categories:

Employees expressing their frustrations with work online

A Government employee making critical comment about government

policy

Employees posting questionable photos during and after work hours

Excessive use of social media during work hours

Employees using LinkedIn to promote businesses competitive with their

employer

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SOCIAL MEDIA IMPLICATIONS FOR DISMISSAL CLAIMS: AIRING WORKPLACE FRUSTRATIONS ONLINE Case 1: Luzsewski v Capones Pizzeria Kyneton [2009] AIRC 280

In this case, an employer attempted to have an unfair dismissal claim dismissed on the

basis that it was frivolous, vexatious or lacking in substance

The employee alleged that he was dismissed because he posted a status update on

Facebook saying he was “pissed off”. The employer alleged the comment related to the

employer requiring his girlfriend to work

The post did not indicate at whom it was directed or mention the employer

FWA held that the employer’s motion should be dismissed as, if this was the reason for

dismissal, it was necessary to consider whether there was a valid reason for the dismissal

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AIRING WORKPLACE FRUSTRATIONS ONLINE Case 2: Dover-Ray v Real Insurance Pty Ltd [2010] FWA 8544

In this case, it was held an employee published a negative blog on a MySpace page

following an unsubstantiated sexual harassment investigation was a valid reason for

dismissal

The employee wrote on MySpace that management were “witch hunters” and that she had

just been through an investigation that “in the end advanced corruption”

Thatcher C held that the employee’s conduct was a valid reason for dismissal

The employee had not only published the blog but had refused to modify or remove it within

a reasonable time

It was not necessary to consider whether the employer had a social media policy or whether

the employee’s conduct had damaged the relationship of mutual trust and confidence

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AIRING WORKPLACE FRUSTRATIONS ONLINE

Case 3: Damian O’Keefe v Williams Muir’s Pty Ltd t/a Troy Williams The Good

Guys [2011] FWA 5311

Another decision where an employee’s social media post were found to justify

their dismissal

Following issues with his pay, the employee posted on Facebook that he

“wonders how the f**k work can be so f***king useless and mess up my pay

again. C***s are going down tomorrow”

His employment was terminated for misconduct after the post was read by work

colleagues. Although the account was ‘private’ and there was no express

reference to the employer, the employee had 11 work ‘friends’

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AIRING WORKPLACE FRUSTRATIONS ONLINECase 3: O’Keefe (cont)

The employee argued that the posts were made outside work hours and no

mention of the employer was made on his webpage

Swan DP referred to the company’s handbook which contained policies on

bullying and harassment

She commented that even without the handbook, “commonsense would dictate

that one employee could not write and therefore publish insulting and threatening

comments about another employee in the manner in which this occurred”

It did not matter that the comments were made outside work hours and from a

home computer

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Case 4: Fitzgerald v Dianna Smith t/as Escape Hair Design [2010] FWA 7358

Ms Fitzgerald wrote on her Facebook page: “Christmas ‘bonus’

alongside a job warning, followed by no holiday pay!!! WHOOOOO!

The hairdressing industry rocks man!!! Awsome!!!”

Ms Fitzgerald had received less than she expected as a bonus and was

paid half her holiday pay by cheque rather than cash

Ms Fitzgerald’s employment was terminated, including because the

Facebook posts

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Case 4: Fitzgerald (cont)

Bissett C: “Postings on Facebook and the general use of social networking sites by individuals

to display their displeasure with their employer or a co-worker are becoming more common.

What might previously have been a grumble about their employer over a coffee or drinks with

friends has turned into a posting on a website that, in some cases, may be seen by an

unlimited number of people. Posting comments about an employer on a website (Facebook)

that can be seen by an uncontrollable number of people is no longer a private matter but a

public comment.”

held that Ms Fitzgerald’s posts were not detrimental to the business as it did not name the

workplace and there was no evidence that the 5 – 10 clients who were friends with Ms

Fitzgerald had read the comments. The posts didn’t name the employer, and were otherwise

private.

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Case 5: Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444

The most recent decision on point, which was also in the employee’s

favour, was the decision of Mr Stutsel was dismissed for making

negative comments on his Facebook page about management, which

management found amounted to sex and racial discrimination

The employee contended that the comments were not derogatory and

that he had maximum privacy settings on his Facebook page

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Case 5: Stutsel (cont)

Roberts C held that the comments had “very much the favour of a group

of friends letting off steam and trying to outdo one another in being

outrageous”

Roberts C was also critical of the company’s failure to have a social

media policy

Roberts C ordered that Mr Stutsel be reinstated, finding the employment

relationship could be re-established

Case was appealed to the FWC Full Bench. The appeal was dismissed

Case now before Federal Court for judicial review


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Case 5: Stutsel (cont)

FWC Full Bench: Justice Boulton, SDP Harrison, Deegan C

[25] The posting of derogatory, offensive and discriminatory statements or comments about

managers or other employees on Facebook might provide a valid reason for termination of

employment. In each case, the enquiry will be as to the nature of the comments and statements

made and the width of their publication. Comments made directly to managers and other

employees and given wide circulation in the workplace will be treated more seriously than if such

comments are shared privately by a few workmates in a social setting. In ordinary discourse

there is much discussion about what happens in our work lives and the people involved. In this

regard we are mindful of the need not to impose unrealistic standards of behaviour and discourse

about such matters or to ignore the realities of workplaces.


Case Study: Banerji v Bowles [2013] FCCA 1052

Commonwealth Public Servant employed as a Public Officer by Department of Immigration used an

anonymous Twitter handle “@LALegale” tweeted/shared comments which were critical or mocking of the

security polices of the company which ran immigration detention centres, immigration policies of the Federal

Government, Scott Morrison (Shadow Immigration Minister), the Minster for Foreign Affairs, the Prime

Minister and employees of the Department

Department investigated her tweets and she was found to have breached APS Code of Conduct and the

Departments guidelines on use of social media and proposed termination [par 30]

Social Media guidelines provided it was inappropriate for Departmental employee to:

make unofficial public comment that is or is perceived to be harsh or extreme criticism of

Government, member of Parliament or political party of their policies

Strong criticism of the Departmental policies that could disrupt the workplace

Banerji sought declarations that the finding was an unlawful curtailment of her Constitutional right of

freedom of political communications

GOVERNMENT EMPLOYEES MAKING CRITICAL COMMENTS

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Case Study: Banerji v Bowles (cont.)

Court was dealing with an interlocutory injunction application by Banjeree and held as

follows:

there was no unfettered right of freedom of political communication in Australia [100]

the right of political communication may be fettered

Restriction imposed by law for limited purposes (even where they may incidentally

diminish completely the discussion of issues of government or politics) may be

compatible with the Constitution

It is only when the law in question is inconsistent with the intended operation of the

system of government created by the Constitution that the implied constitutional

protection of freedom of communication on matters of government and politics [101]

In any event, a constitutional right does not provide a licence to breach a contract of

employment [102]

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GOVERNMENT EMPLOYEES MAKING CRITICAL COMMENTS

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POSTING OF PHOTOS ONLINE

Case 1: Antony Dekort v Johns River Tavern Pty Limited t/a Blacksmith’s Inn

Tavern [2010] FWA 3389

The employee represented that he was unfit for duty on 30 and 31

December 2009 and sought to claim sick leave

The employer had a photograph from a Facebook page showing the

employee participating in New Year’s Eve celebrations

The employee was not able to explain his actions

His Application was dismissed as having no reasonable prospects of

success

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Case 2: Mayberry v Kijani Investments Pty Ltd ATF The Investments Trust

Subway Wallsend t/a Subway [2011] FWA 3496

An employee was dismissed following a photo on Facebook of her posing in a

cardboard car at work during work hours

The photo was posted on Facebook by a friend, with the caption: “Lee in mine

and Lees subway car. Broom broom toot toot.”

The company alleged the employee had stolen its property to make the car and

had caused irreparable damage to the company name

Macdonald C found that the employee’s dismissal was unfair because there was

no evidence of damage to the company name, the employee had not engaged in

theft and the dismissal was procedurally unfair

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Case 3

In a recent decision, two employees of a pumps manufacturer were

fined $1,500.00 by the Victorian Magistrates’ Court after uploading

photographs of themselves planking at work

They were dismissed from their employment

They were charged with breaching the Victoria Occupational Health &

Safety Act

No conviction was recorded

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Case 3

In a recent decision, two employees of a pumps manufacturer were

fined $1,500.00 by the Victorian Magistrates’ Court after uploading

photographs of themselves planking at work

They were dismissed from their employment

They were charged with breaching the Victoria Occupational Health &

Safety Act

No conviction was recorded

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AAP, ‘Plankers bonkers? Workers fined for Facebook foolhardiness’, The Age, 8 September 2011

100

EXCESSIVE SOCIAL MEDIA USE DURING WORK HOURS

Richard O’Connor v Outdoor Creations Pty Ltd [2011] FWA 3081

The employer terminated the employee’s employment one day before his

resignation was due to take effect

The employer discovered 3,000 chats in his Google mail account

Gooley C concluded that excessive use of the social media for personal

reasons during work hours may constitute misconduct but there was

insufficient evidence to support a finding of misconduct in this case

The company was ordered to pay the employee compensation for the day

he would have worked

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LINKEDIN AND COMPETING WITH THE EMPLOYER

Pedley v IPMS [2013] FWC 4282

Employee was employed as a Senior Interior Designer by IPMS

Employee had contract of employment which prevented him from competing with the IPMS

IPMS had permitted the Employee to do some small private jobs (as RevealID) outside his work

hours which did not conflict with his duties as employer.

Employee sent group email via his LinkedIn to contacts including clients and recent clients of

IPMS announcing that:

he was going to expand RevealID to a fulltime design practice and asking recipients to look

at RevealID’s website, social media pages, awards etc and keep “RevealID in mind”

“one of the benefits of working in a new company is that you get the operators prior “big

business experience at small business rates!” and “no project is too big or small”.

102


Pedley v IPMS (cont…)

Deegan C held that there was a valid reason for the dismissal as the sending of the LinkedIn

email breached a fundamental employment obligation

Email stated that the Employee was seeking to build a full time operation which was not

confined to small jobs that the employer would not perform

Employee was clearly seeking to set up a business in opposition to his employer, albeit in a

small way

Employee was soliciting work from current clients of his employer

Employee’s email went way beyond the permission previously given by the Employer to do

small private jobs

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Whitmar Publications Limited v Gamage and Others [2013] EWHC 1881 Ch

Employer had LinkedIn accounts to promote its publishing business

Employees were setting up competing business

After resignation, the employees used contacts from Employer’s LinkedIn account to

send message with a Press Release inviting people to attend an informal function to

promote the competing business

English High Court granted an interlocutory injunction restraining the employees from

using the LinkedIn contact information

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PRACTICAL TIPS FOR EMPLOYEES USING SOCIAL MEDIA

1. There is no general right to privacy in Australia when it comes to social

media. Employers may be able to take disciplinary action against employees if

online activities has an impact on the employment relationship.

2. Be careful about bagging your boss, employer, clients or co-workers on

social media, particularly with an “open” social media account or are “friends”

with co-workers or clients.

3. Check social media privacy settings. You might want to consider having

them set at the highest possible level and avoid having your account accessible

by the public at large.

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PRACTICAL TIPS FOR EMPLOYEES USING SOCIAL MEDIA4. Be careful in “liking” or “re-tweeting” comments which have negative impact on your employer’s reputation. They may imply agreement.

5. Check to see if the employer has a policy regarding the use of social media.

6. If you have open social media, think about how photos you post may be perceived by prospective employers checking up on you.

“The probability of being watched is directly proportionate to the stupidity of your act.”

Post from Stutsel

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PRACTICAL TIPS FOR NEGOTIATING OR BARGAINING A SOCIAL MEDIA POLICY A good policy might include the following:

A definition of social media;

Application of policy – to whom and when does the policy apply;

Information about the difficulty of maintaining privacy in social media;

Advice on whether employee use of social media will be monitored by the

employer;

A set of clear rules and standards that employees are expected to comply with;

and

Information on the risk that social media for private communication will become

public.

ANY QUESTIONS?

Kamal Farouque

Principal – Employment and Industrial Law Section Ph: 03 9605 2823 E: [email protected]

Emma Thornton

Associate – Employment and Industrial Law Section Ph: 07 3016 0345 E: [email protected]

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Personal Injury 108

This information is prepared for the purposes of the seminar conducted on 22 August 2013 only. The content of this paper is not legal advice. It is information of a general nature. Readers requiring legal assistance for their specific circumstances should not rely on the content of the foregoing but should take appropriate legal advice.

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