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The Victorian Attorney-General launched the reference into workplace privacy and surveillance by the Victorian Law Reform Commission (the Commission) on 5 March 2002. During the inquiry's initial stage, the Commission examined the current legislative regime and found significant gaps in workers' privacy protection in Victoria. As a result, the Commission released an options paper on 23 September 2004 (the options paper) putting forward law reform options in relation to surveillance, monitoring and testing practices. Both options place significant new restrictions on employers who wish to monitor workers. It is important to note that the term 'worker' is broader than 'employee' and includes independent contractors and consultants.

Options for reform

The options paper recognises that there are a range of reasons why employers have implemented both overt and covert surveillance. The reasons include protecting property, maintaining security, measuring performance, reducing the risk of legal liability and gathering evidence. However, after considering workers' concerns about workplace privacy, the Commission decided that the current position was not satisfactory. Therefore, the Commission proposed two new options for reform and did not recommend maintenance of the status quo.

Option one proposes the establishment of a new workplace privacy regulator under new legislation. The regulator would be responsible for regulating workplace surveillance by employers and investigating and conciliating disputes between employers and workers. Under this option, employers would be required to seek approval from the regulator before conducting overt or covert surveillance on workers. It also raises the possibility that employer associations would apply for authorisations on behalf of their members where practices are commonly used throughout an industry sector (such as video surveillance in the retail sector).

Option two also proposes new legislation and a new regulator. However, instead of the regulator authorising particular surveillance, employers would be required to comply with a code of conduct when implementing workplace surveillance, monitoring or testing. Under this option, the regulator would also conciliate and investigate disputes between employers and workers about breaches of the code of conduct.

Initial responses to the options paper

Perhaps not surprisingly, Trades Hall Council secretary Leigh Hubbard has given support to option one, pushing for laws that make employers justify why a breach of a person's privacy is appropriate.

On the other hand, the Victorian Chamber of Commerce and Industry reacted with surprise to the options paper, as it did not include maintenance of the status quo as an option.

The options paper is open for public comment until 30 November 2004. Both the Victorian Chamber of Commerce and Industry and Trades Hall Council have made submissions to the Commission as part of the process to date and would be expected to make submissions in relation to the options paper. The Commission will then prepare a report to the Victorian Attorney-General, who will assess the proposed changes.