Issues, Controversies and Problems


Organizations are increasingly using information technology (IT) or acceptable use policies as a means of establishing boundaries between employees and employers with regard to appropriate workplace monitoring. These policies are often vague and loosely drafted. Usually they are referred to in general terms or contained in the contract of employment. Examples include employees must not misuse equipment provided by the company and employees must only use e-mail for business purposes. Disputes may arise as to the meaning of these terms or that the employer has not given sufficient notice of these policies to their employees. Another issue involves the employer s obligations to provide a safe working environment. There have been several recent decisions in Australia regarding these matters.

The Australian Industrial Relations Commission in Toyota Motor Corporation v. Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) considered the termination of two employees who had been distributing pornographic material using the company s network. It was established that the corporation had brought the relevant IT policies to the attention of their workers on regular occasions. The Commission found that the employees could lawfully be terminated since they had been informed that such conduct was considered to be inappropriate.

A similar situation arose in Ueckert v. Australian Water Technologies Pty Ltd (2000) that was considered by the Australian Equal Opportunity Commission. In this matter an employee was dismissed for distributing pornographic material via the corporation s network. The Commission held that this action was justified on the basis of occupational health and safety obligations that impose upon the employer the duty to provide a safe working environment (EOC 91-104; NSWIRComm 123) (See also Andrew Murray v. Department of Family and Community Services PR913897 (2000).)

The staff at the Australian Broadcasting Corporation has recently been presented with pop up notices when browsing Web sites. The notices inform employees:

The ABC does not regard the material contained in this site as reasonable for personal use and, if requested , you must be able to justify that your use of this site relates to ABC business Breach of this policy may result in disciplinary action including termination of employment. (Lowe, 2003)

Whilst this warning reminds employees without any further documentation, the notice is vague and imprecise. Lowe has noted that more detailed information perhaps in the form of a manual should be provided especially if management at the end of a specified time period can receive confidential reports regarding the online activities of individual employees (Lowe, 2003).

Another area that needs to be carefully considered is the ability of a union to use an employer s network to contact its members . The issue has been considered by both the Federal Court of Australia and the Australian Industrial Relations Commission. In Australian Municipal, Administrative, Clerical and Services Union v. Ansett Australia Ltd (2000) , the Federal Court considered the actions of a union representative using her employer s e-mail system (Brien & Brien, 2004). In the circumstances, Gencarelli considered that this was appropriate given her role in the union. There was no express provision in the employer s IT policy governing union communications. The policy simply indicated that the network should only be used for performing lawful business activities. The distributed e-mail was critical of the employer s attitude and sought to inform union members of this development. The employer responded by terminating Gencarelli. His Honour Mr. Justice Markel considered that Gencarelli had only been dismissed because she was a union delegate. The court determined that the employer s action had been harsh and unjust. Emphasis was placed on the employer s responsibility to take reasonable actions to ensure that employees were aware of the relevant policies concerning use of the network. It was also noted that information should be made available as to the criteria to be used in assessing lawful business activities. The employer was required to outline the process in the circumstances.

In the Ansett decision, the Federal Court did not provide any declaration as to a general permission of a union to use an employer s computer network. This concept was later considered by the Australian Industrial Relations Commission in CPSU, the Community Public Sector Union and Seven Network (Operations) Ltd (2003) . This was an appeal against an order that required Channel Seven to provide reasonable network facilities for union officials. The Commission considered that it did not have sufficient power to make the original order even though the union was engaged in enterprise negotiations.

The New South Wales Labour Council has been alarmed by the decision since it enables employers to block union e- mails (Turner, 2003). A union official may be able to use an employer s e-mail system, but it depends upon the circumstances. This includes the corporation s IT policies and what the union has been permitted to do on previous occasions.

Workplace monitoring can occur overtly where there are express policies and notices, as we have just seen. It may also be covert. When criminal investigators obtain authority from the courts to engage in this type of conduct, there is no issue. Problems arise where employers engage in covert monitoring without obtaining such authority. Gardiner, the vice president of the Victorian Council for Civil Liberties, has noted that secretly reading employee email is a clear violation of a people s rights. He also noted:

[T]he critical thing about monitoring is that it should not be done secretly unless it is a specific criminal investigation done appropriately according to the law an employer who wants to go about spying is an employer who doesn t trust his staff. Workers who know they re not trusted are much less likely to be good workers because respect for human beings is a two way process. I think an employer who does not trust its staff will no doubt get what they deserve. (Turner, 2003)

Gardiner has identified a critical element with respect to workplace monitoring (Turner, 2003). There must be trust in the relationship between the employer and its employees. It is important that employers respect employees and vice versa. Trust and respect need to permeate all interactions. It is in this context that a culture within the organization needs to be created. Emphasis should be placed on the obligations rather than rights of employers and employees.

Fox, Phillips, and Vaidyanathan (2002) have noted the importance of workplace monitoring with respect to managing Internet gambling in the employment situation. They outline technical measures that can assist employers in checking the online activities of their employees. These consist of installing firewalls, virtual privacy networks, proxy servers, cache servers, and employee Internet monitoring software. Above all, they have noted that workplace monitoring has moved from being a technical matter to a human resource management concern (Fox et al., 2002). In their research they examined the use of Internet gambling by employees in the United States of America. They acknowledge the role of human resource management as a means of providing discipline in the workplace. Employees who gamble online in the workplace may also operate as an indicator to management that work routines or conditions could be improved so as to motivate workers or perhaps improve productivity.

It is in this wider context that culture is affirmed as a means of regulating conduct in the workplace. The focus should not be just on formal rules and regulations, but on establishing appropriate conventions that respect the interests of both the employer and the employees.




Electronic Monitoring in the Workplace. Controversies and Solutions
Electronic Monitoring in the Workplace: Controversies and Solutions
ISBN: 1591404568
EAN: 2147483647
Year: 2005
Pages: 161

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