Intrusive Workplace Surveillance and Algorithmic Management

What is intrusive workplace surveillance?

Intrusive workplace surveillance is a growing workplace phenomenon. Although not recognised on WorkSafe's list of psychosocial hazards, unions and researchers understand that it poses a significant risk to workers psychological and physical health and safety.  If left unchecked, intrusive workplace surveillance has the potential to lead to widespread discrimination, work intensification, unfair treatment and resultant stress. Examples of intrusive surveillance can include:

  • Monitoring of emails and files
  • Webcams on work computers
  • Tracking of when and how much a worker is typing 
  • Tracking of calls made and movements made by the worker
  • Using CCTV and trackable devices

VTHC Intrusive Workplace Surveillance and AI Liveshow 

Check out our live show on the issue featuring Matt Scherer from the Centre for Democracy and Technology here.

Follow this link to access Matt Scherer's Slides

We did want to clarify a couple of questions that were asked on the day. Many of the question asked “can the boss do ‘X, Y or Z’?” In relation to workplace surveillance perhaps the better way to phrase the question is “What prevents my boss from doing X, Y or Z?”

For example the Surveillance Devices Act prevents an employer or employer representative from knowingly installing, using or maintaining a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party, without the express or implied consent of each party to the conversation. This means that as a general rule recording audio  or private conversations between workers would breach this duty.  Recording private activities or conversations of a worker in a toilet, washroom, change room or lactation room in the workplace is also expressly prohibited. There is nothing in the Act explicitly prohibiting cameras in corridors, working stations or even lunch rooms.

Beyond these explicit exceptions remember that the OHS Act is objective based. The s.21 duty of the employer is to provide, so far as is reasonably practicable, a workplace that is safe and without risks to health. Does the technology being used create OHS risks, and if so what are they? It is the risks that need to be controlled and this may well have a flow on effect to how the technology is deployed. Consider also how the employer met their consultation obligations around the implementation of this technology.

Another approach could be to negotiate clauses in an Enterprise Agreements regulating how ‘bossware’ will be used For example requiring that that footage will not be used to performance manage or be continually monitored, but only accessed in instances of allegations of theft, fraud, violence or a workplace incident or injury.

What are the impacts of intrusive workplace surveillance? 

Intrusive workplace surveillance exacerbates other hazards such as poor workplace relationships and low job control and creates a culture where employees feel undervalued, policed and lacking in autonomy. Additionally, a report by the center for democracy and technology found that intrusive workplace surveillance can harm workers' health and safety by: 

  • Discouraging and even penalizing lawful, health-enhancing employee conduct, including taking breaks to rest when needed to avoid fatigue or to use toilet facilities.
  • Enforce a faster work pace and reduce downtime, which increases the risk of physical injuries, particularly those stemming from repetitive motion.
  • Increase risk of psychological harm and mental health problems for workers —  particularly due to the effects of job strain, which occurs when workers face high job demands but have little control over their work.

Already vulnerable workers in insecure work in industries such as call centres, the gig economy and delivery drives are more likely to be subject to intrusive workplace surveillance. In many call centres for example, toilet breaks are timed to the second, while some warehouse workers have their movements tracked and are penalised for failing to achieve rigid and punitive KPI's that do not allow sufficient time for bathroom breaks. For example, workers at Amazon have their handheld package scanners monitored to determine the amount of time spent off task while working - this includes going to the bathroom and chatting with co-workers - and are penalised when this exceeds 30 minutes per 8 hour shift.

Insecure work combined with intrusive workplace surveillance can have devastating impacts on workers psychological health. Although WorkSafe has yet to recognise intrusive workplace surveillance as a workplace hazard, the union movement is calling for intrusive workplace surveillance to be included in the new psychological health regulations. 

What can health and safety representatives do about intrusive workplace surveillance? 

While intrusive workplace surveillance is not recognised as a psychosocial hazard in and of itself, its impact on workplace relationships and other aspects of workers health and safety gives health and safety representatives rights under the OHS Act. Under Section 35 of the OHS Act 2004, HSR's must be consulted on any changes to the workplace that impact the health and safety of workers. Consequently, if your employer is introducing new surveillance technologies, it can be argued they must consult you on their rollout given the impact these technologies could have on the psychosocial and/or physical health of workers as highlighted in the examples above. 

Additionally, employers have a duty to provide a safe workplace so far as is reasonably practicable under section 21 of the OHS Act 2004. Considering this, the impacts of these technologies on workers health and safety must be controlled. 

"Reasonably practicable" refers to actions that, at a specific time, are reasonably achievable to ensure health and safety. This determination involves a thorough consideration of all relevant factors, which encompass:

(a) The likelihood of the hazard or risk in question occurring.
(b) The potential level of harm that could result from the hazard or risk.
(c) The knowledge possessed or reasonably expected of the person involved regarding the hazard or risk, as well as strategies for risk elimination or reduction.
(d) The presence and appropriateness of methods to eliminate or reduce the risk.
(e) Following an evaluation of the risk extent and available risk reduction methods, the associated costs of these methods.

Consequently, if these technologies significantly increase the likelihood of a hazard or risk occurring - psychosocial or physical - a strong case can be made for their elimination or substitution under the hierarchy of controls. 

What change are unions and researchers calling for? 

Australia's regulatory environment has not been keeping pace with the dramatic changes in workplace surveillance technologies that are taking place. For example, there is now AI on the market that is able to identify subtle patterns in human behaviour to pair customers and workers on the basis of behaviour predict patterns of interpersonal behaviour. The health and safety, privacy and ethical issues behind this technology are not covered by current legislation.

The Trade Union Congress in the United Kingdom recently released a research report called 'Technology Managing People' into AI and workplace surveillance. The recommendations made in the report are: 

  1. A legal duty on employers to consult trade unions on the use of “high risk” and intrusive forms of AI in the workplace. 
  2. A legal right for all workers to have a human review of decisions made by AI systems so they can challenge decisions that are unfair and discriminatory 
  3. Amendments to the UK General Data Protection Regulation (UK GDPR) and Equality Act to guard against discriminatory algorithms.
  4. A legal right to ‘switch off’ from work so workers can create “communication free” time in their lives

Additionally, the Australia Institute in collaboration with Peter Lewis, the director of the Centre for Responsible Technology recently made a submission the Select Committee on the Impact of Technological Change on the Future of Work. This is a NSW government initiative analysing the impact on technological change in work. The report put forward several potential solutions for ensuring that workplace surveillance is less intrusive. Their recommendations are as follows: 

  1. Review Workplace Surveillance Legislation: Consider updating Australia's workplace surveillance laws, which are currently underutilized. These laws should uphold workers' rights to privacy and require employers to be transparent about monitoring activities.

  2. Visibility and Accountability: Employers should explain how decisions about workers' appointments, promotions, or terminations are influenced by data collected during their work. This promotes accountability and transparency.

  3. Rights to Access and Control Data: Adapt principles from the European Union's General Data Protection Regulation (GDPR) to grant Australian workers the rights to access, rectify, erase, and control their workplace-generated data, ensuring these rights override employment contracts.

  4. Right of Entry to Understand Data Use: Extend unions' rights to access workplaces to include reviewing data collected during workers' employment. This empowers workers to understand data usage and compliance with protective measures.

  5. Valuing Incidental Data Production: Recognize the surplus data generated by workers as a secondary output that contributes to employer productivity. Include this in industrial negotiations for fair compensation.

  6. Discrimination Laws for Automated Decisions: Ensure automated decisions in the workplace align with existing discrimination laws, allowing scrutiny of algorithms used in workplace technology.

  7. Public Sector Best Practices: Conduct a thorough audit of current NSW Government processes related to incidental workplace data generation to ensure compliance with protective measures.

  8. Worker Agency: Involve workers in decisions related to intrusive monitoring and technological changes through formal consultation mechanisms or works councils.

  9. Data Trusts: Consider treating data generated in the employment relationship as the property of workers, managed through a trust model. This ensures worker interests and values are considered when using this data and may be incubated in public sector agencies.

Further Reading

 

Updated October 2023