Page 262 - Week 01 - Thursday, 15 February 2018

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Under the proposed amendments, when determining reasonable repayment arrangements the head of service is required to consider the period over which and the circumstances in which the overpayment occurred, and other factors such as the public servant’s financial circumstances or any hardship the arrangement may cause the public servant. Consideration of these factors ensures that reasonable repayment arrangements are established in a compassionate and sensible manner, balanced by the need for the territory to be fiscally responsible.

The head of service will only decide to proceed with an overpayment arrangement after an employee has had an opportunity to be heard and to engage in negotiating a reasonable recovery arrangement. Where employees do not agree to the overpayment arrangement decided by the head of service, employees have access to the Fair Work Commission for resolution through the dispute resolution provisions of industrial instruments. These amendments and the repayment arrangements have been agreed with relevant unions in line with the consultation provisions of ACTPS enterprise agreements.

I will now turn to the proposed workplace privacy amendments. By way of background, the Workplace Privacy Act was introduced in 2011 due to a lack of regulation of the collection and use of surveillance information in workplaces. It aimed to provide a clear framework for the conduct of surveillance in the workplace, consistent with the information privacy laws in the ACT.

The act operates within the broader legislative framework of the Human Rights Act 2004 and seeks to balance a worker’s right to privacy with an employer’s need to take reasonable steps to protect their business and monitor their workplace. Under the act, employers must inform and consult with workers about any surveillance in the workplace. The act prohibits surveillance of areas where a reasonable person would have an increased expectation of privacy, for example, toilet facilities, change rooms, prayer rooms, sick bays and first aid rooms, and parent or nursing rooms.

Generally it is an offence for an employer to conduct covert surveillance in the workplace. However, an employer may apply to the Magistrates Court for authority to conduct covert surveillance of a worker in a workplace, only for the purpose of finding out whether the worker is engaged in an unlawful activity in the workplace. If satisfied that there are reasonable grounds, the magistrate may issue a covert surveillance authority. Covert surveillance can only be conducted by a nominated responsible person.

In response to a 2015 act review a number of amendments were made via the Workplace Privacy Amendment Act 2016, including allowing employers to apply to the Magistrates Court for an authority to conduct surveillance outside the workplace. At the time, concerns were raised that the threshold for allowing external covert surveillance was too low and would provide powers to employers to intrude into the private lives of workers for non-criminal matters. Consequently the provisions allowing covert surveillance outside the workplace were delayed pending further consultation with stakeholders.

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