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The New South Wales Labor Council has recommended a co-regulatory scheme in which workplace monitoring committees would negotiate codes for the conduct of video surveillance which would be overseen by the Industrial Relations Commission. Workplace committees would include employees, union representatives, and employers. If any dispute arose relating to the conduct of video surveillance, the Industrial Relations Commission could arbitrate the matter using the Code as a benchmark.
The Labor Council's proposal would see Codes developed through a three-stage consultation process along the following lines:134
1. Employers would inform employees of the problem which is being experienced and of why the use of video surveillance equipment is being contemplated. The information given to employees would need to be more than just general concerns about the risk of theft within a warehouse or the risk that members of the public may enter a workplace undetected.
2. If there is general agreement between workers and management that there is a problem which justifies some installation of video surveillance equipment, the next stage in the consultation process would be to establish the general features of the camera installation. This process would include discussion of the location of cameras, their times of operation, the personnel in charge of the cameras, access, and how video tapes will be used.
3. Once the details of the initial installation have been concluded, a workplace monitoring committee of employees, employee representatives and employers would be established in the workplace. This committee would monitor the processes involved in introducing the cameras and the conduct of the surveillance installation. If individual employees have any problems, they would be able to contact members of the Committee for its consideration. Complaints relating to compliance with the Code would be taken to the Industrial Relations Commission for resolution.
Existing provisions relating to occupational health and safety standards in the workplace follow this model, and the Labor Council's experience is that it has provided effective resolution to most disputes which have arisen.135 While these Codes can not be enforced legally, they are taken into account in determining whether an employer has fulfilled the duty of care to employees.
The Privacy Committee has several concerns relating to the proposal for workplace codes to be developed within the context of the industrial relations system. In the first place, it would be difficult to determine whether there was general agreement between employees and management concerning the installation of cameras. Even if a majority of employees approved the use of surveillance it may still involve an unacceptable intrusion on the privacy of a minority of employees.136
It is also likely that the process by which guidelines relating to the conduct of video surveillance are developed in individual workplaces would lead to an inconsistent level of privacy protection. The outcome of any process which is subject to workplace bargaining is likely to reflect the relative bargaining strength of employees and employers. As a result, employees in a relatively weak bargaining position may be forced to accept a lower standard of privacy protection.
Employees may also be forced into a position where surveillance is traded off against benefits such as wage increases or changes to other work conditions. The Committee is concerned that as a recognised human right, privacy should not be traded off in exchange for short term gains, such as wage rises. Just as it may be considered inappropriate to trade off safety standards or equal opportunity principles, the Committee believes it would be inappropriate to trade off employees' rights to privacy for other benefits.
The option of developing codes on video surveillance through a workplace monitoring committee is probably also not a realistic option for many small to medium size workplaces. It is likely that in many places neither employers or employees would have the time or experience to develop such a code, and then to pay attention to its implementation. As a result, employers may either continue to use video surveillance without any code, or may simply adopt a code developed by an industry association or employer group.
While the Committee believes that the industrial relations system may be an effective framework for regulating specific aspects of video surveillance (see paragraph 6.4 below), it does not believe that it is the most appropriate context for the resolution of human rights issues. The Committee believes that these issues would be resolved more effectively by a Privacy Commissioner.