Page 607 - Week 02 - Thursday, 18 February 2016
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Following the review, I am pleased to present the Workplace Privacy Amendment Bill 2016. The bill amends the Workplace Privacy Act 2011 to implement the review recommendations. The bill also makes amendments to address the review findings relating to enforcement and makes necessary consequential amendments to two other acts, the Magistrates Court Act 1930 and the Work Health and Safety Act 2011, to move responsibility and enforcement away from the police. These amendments seek to improve the balance between a worker’s right to privacy and a business owner’s right to take reasonable steps to protect their business and monitor their workers.
The act presently prevents an employer conducting surveillance of an employee involving the tracking of a vehicle or other object unless they attach a clearly visible notice that states the vehicle or object is being tracked. As recommended by the review, the bill exempts an employer who conducts surveillance involving the tracking of a vehicle or other object from the requirement to affix a clearly visible notice to the tracking device where it is not reasonably practicable to affix a notice to the vehicle or object. To maintain the requirement that the employee has notice of the surveillance, the employer must take appropriate action to notify the employee of the device’s tracking capability.
In its present form, the act does not make specific provisions for its enforcement. To improve monitoring and enforcement of the act, the bill extends the application of the ACT Work Safety Commissioner’s powers, and those of authorised work health and safety inspectors, to workplace privacy matters under the act. This will clarify that WorkSafe ACT is responsible for enforcement of the act. Shifting responsibility for enforcement recognises that, by the nature of their role, work health and safety inspectors have greater opportunity and expertise to enforce compliance with the act.
The bill also makes necessary consequential amendments to the Magistrates Court Act 1930 and the Work Health and Safety Act 2011 to facilitate enforcement through the Industrial Court and allow the Work Safety Council to advise the minister on workplace privacy matters. Finally, the bill extends the ability of employers to apply to the Magistrates Court for an authority to conduct surveillance of a worker outside the workplace.
The act already allows an employer to apply to the Magistrates Court for an authority to conduct covert surveillance of an employee inside the workplace, provided the employer demonstrates a reasonable suspicion that the employee is engaged in unlawful activity in the workplace.
The review identified that the prohibition on covert surveillance outside the workplace can seriously hinder an employer’s ability to defend an action against them by an employee. This can expose them to a greater burden as a result of unlawful activity, such as elevated insurance premiums, increased administrative burdens and costs to replace business resources. Allowing employers to apply for covert surveillance outside the workplace for the purpose of gathering evidence will reduce vulnerability to false claims and mitigate the costs of work-related unlawful activity.
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