QLD EILS Seminar: Emerging Issues in Workplace Privacy

EMERGING ISSUES
IN WORKPLACE
PRIVACY
Employment and Industrial Law Section
Union Seminar
Thursday 22 August 2013

Maurice Blackburn acknowledges the
traditional owners of the land on which we
gather, and we pay our respects to elders
past and present.
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WELCOME
 Part 1 - Surveillance and Monitoring in the Workplace
 Part 2 - Privacy
 Morning tea break
 Compensation Entitlements for Serious / Terminal Illnesses and Diseases
 Part 3 - Employee Information and Union Right of Entry
 Part 4 - Social Media and its Impact on Employment
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OUR HISTORY
 Founded in 1919
 Maurice Blackburn – distinguished lawyer and Labor member of Parliament.
 Dedicated to worker‟s rights.
 Defence of underprivileged groups.
 Determined to make a genuine difference for people who need help
 Fight hard for best possible outcome.
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OUR SERVICES
 Employment & Industrial Law
 WorkCover
 Road Accident Injuries
 Medical Negligence
 Asbestos Diseases
 Superannuation & Disability Insurance
 Public Liability
 Faulty Products
 Comcare
 Will Disputes
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Kamal Farouque, Principal
Emma Thornton, Associate
PART 1: SURVEILLANCE
DEVICES

 Surveillance Devices
 Use of tracking devices
 Use of listening devices
 Use of optical surveillance devices
 Implications for employment relationship by secret use of surveillance
devices
CONTENTS
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SURVEILLANCE LAWS IN QLD
 Queensland relies generally on the common law regarding surveillance issues.
 There is no legislation limiting surveillance in this state.
 The trend of the Courts has been to favour the interests of employers over
employees.
 The employer‟s power to command and the employee‟s duty to obey reasonable and
lawful directions provides a mechanism for the common law to justify surveillance.
 From the perspective of the common law of employment there is no reason in
principle why surveillance should be distinguished from human supervision.
 The legal right to command would have no practical utility without the power to
survey.
9

USE OF TRACKING DEVICES AND VIDEO
SURVEILLANCE - VICTORIA
There is no legislation in Qld similar to that in Victoria or New South Wales.
 Surveillance Devices Act 1999 (Vic)
 Prevents the installation, use or maintenance of a tracking device to determine
the geographical location of a person without the express or implied consent of
that person;
 Express or implied consent requires notification that the device is present and
driving the vehicle, or knowledge that device is present and then driving the
vehicle.
 Prohibition on installation, use or maintenance of a optical surveillance device to
record or observe a private activity to which a person is not a party without
express or implied consent of each party.
10

SURVEILLANCE
“Private activity” is an activity carried on in circumstances that may reasonably
be taken to indicate that the parties to it desire to be observed only by
themselves but does not include:
a) Activity carried on outside a building
b) Activity carried on in circumstances in which the parties ought
reasonably to expect that it may be observed by someone else
11

SURVEILLANCE - NEW SOUTH WALES
 New South Wales has legislation to control the issue of video surveillance in the
workplace – Workplace Surveillance Act 2005.
 This act requires:
 Employees to be notified in writing of:
(a) the kind of surveillance (camera, computer or tracking) prior to commencing
work
(b) how the surveillance will be carried out, and
(c) when the surveillance will start, and
(d) whether the surveillance will be continuous or intermittent, and
(e) whether the surveillance will be for a specified limited period or
ongoing.
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SURVEILLANCE
 Camera surveillance of an employee must not be carried out unless:
 cameras used for the surveillance are clearly visible in the place where the
surveillance is taking place
 and signs notifying people that they may be under surveillance in that place are
clearly visible at each entrance to that place.
 Tracking surveillance of an employee that involves the tracking of a vehicle or
other thing must not be carried out unless there is a notice clearly visible on the
vehicle or other thing indicating that the vehicle or thing is the subject of tracking
surveillance.
 An employer must not carry out any surveillance of an employee of the employer in
any change room, toilet facility or shower or other bathing facility at a workplace.
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SURVEILLANCE
 An employer must not carry out, or cause to be carried out, surveillance of an employee of
the employer using a work surveillance device when the employee is not at work for the
employer unless the surveillance is computer surveillance of the use by the employee of
equipment or resources provided by or at the expense of the employer.
 An employer must not carry out, or cause to be carried out, covert surveillance of an
employee while the employee is at work for the employer unless the surveillance is
authorised by a covert surveillance authority. An employer to apply to a Magistrate for the
authority.
 A covert surveillance authority that is issued to an employer or authorises the covert
surveillance generally of any employees while at work for the employer but only for the
purpose of establishing whether or not one or more particular employees are involved in
any unlawful activity while at work for the employer.
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SURVEILLANCE - ACT
 Workplace Privacy Act 2011 (ACT)
 No surveillance in change rooms, toilets, bathrooms, first aid rooms, sick bay,
parents room, prayer room.
 Employers to notify employees of surveillance (optical and data surveillance) or seek
Magistrate approval for covert surveillance – necessary to detect unlawful activity
 Same for video, tracking devices and data surveillance as NSW.
 Limited rights for workers to access data held on them by the employer.
 Employers prohibited from surveillance when the employee not in the workplace
except when employee is using employer provided computer resources, where a
tracking device is in place that cannot be removed or the employer is a law
enforcement agency.
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 Industrial Relations Act 1999 (Qld) includes surveillance in the workplace as
an industrial matter – dispute options for state system employees.
 Information Privacy Act 2009 (Qld) regulates collection, handling and
access to personal information in the Government‟s possession.
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 Criminal Code 1899 (Qld) – misdemeanour for a person to visually record or
observe a person performing a private act or in a private place without
consent or where the recording is made with the purpose of observing the
person performing a private act (toileting, showering, intimate sexual activity
and people in part undress.)
 Law enforcement is an exemption.
 Penalty is maximum 2 years imprisonment.
 A person who distributes prohibited visual recordings without consent also
commits a misdemeanour, with the same maximum penalty.
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COMPUTER SURVEILLANCE
 Workplace Surveillance Act NSW says this surveillance is not authorised
unless it is carried out in accordance with the employer‟s policy and the
employee has been notified in advance in such a way that it is reasonable
to assume the employee knows and understand the policy.
 Office of the Information Commission has published guidelines on
workplace email, web browsing and privacy.
18

USE OF TRACKING DEVICES AND
SURVEILLANCE
 Industrial responses may include:
 Clauses in EBAs to regulate the use of tracking devices and other
surveillance and the purposes for which information may be used
 Consultation, no extra claims and dispute resolution clauses
19

USE OF LISTENING DEVICES
 Telecommunications (Interception and Access) Act 1979 (Cth) (Interception
Act)
 Invasion of Privacy Act 1971 (Qld)
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USE OF LISTENING DEVICES –
INTERCEPTION ACT
 Interception Act
 Prohibits the interception of communications passing over a
telecommunications systems
 Four elements
 Listening to or recording, by any means
 A communication (speech, sounds, date, text, images, signals)
 In its passage over a telecommunications system
 Without the knowledge of the person making the communication
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 Covered by Part 4 of the Invasion of Privacy Act 1971
 S43(1): a person is guilty of an offence against this Act if the person uses a
listening device to overhear, record, monitor or listen to a private
conversation
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 Penalty:
 Up to 2 years in prison or;
 40 penalty units = $4,000
 Exception:
 s43(2)(a) Where the person using the listening device is a party to the
private conversation; or
 S43(2)(b) The conversation is unintentionally overheard by means of a
telephone
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What is a private conversation?
 Any words spoken by one person to another person in circumstances
that indicate that those persons desire the words to be heard or listened
to only by themselves or themselves and some other person but not
circumstances where either person ought reasonably to expect the
words may be overheard, recorded, monitored or listened to by some
other person.
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 Definition of “private conversation” has a subjective and objective test
 Subjective test: Parties must hold a desire for the conversation to be heard
by themselves and that the desire is reasonable
 Objective test: Private conversation does not include circumstances in
which the parties to it ought reasonably to expect that it may be overheard
by someone else
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 If you record the information, as a party to the conversation, what can you do with it?
 Can‟t communicate or publish the contents to any other person (either the recording or
a transcript) unless (s45(2)):
 You have the consent of all the parties to a conversation; or
 In the course of legal proceedings – civil or criminal before any court, proceedings
before any tribunal in which evidence is or may be given and in any part of these
proceedings; or
 Is not more than is reasonably necessary in the public interest or for the protection
of lawful interests of that person.
 An offence to publish if it doesn‟t fit these criteria
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 If the evidence of a private conversation has been unlawfully obtained,
evidence of the recorded conversation may not be given in any civil or
criminal proceedings. (s46)
 A person is guilty of an offence if they publish or communicate a private
conversation that they have become aware of because of a recording and
they were not party to that conversation.
 But even if a person, party to a private conversation in the workplace,
lawfully records the information it may result in other issues for the
employment relationship.
27

EVIDENCE ACT (CTH)
 S138 (1): Evidence that is obtained:
a) Improperly or in contravention of an Australian law; or
b) In consequence of an impropriety or of a contravention of an Australian
law;
 is not to be admitted unless the desirability of admitting the evidence
outweighs the undesirability of admitting evidence that has been obtained in
the way in which the evidence was obtained.
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EVIDENCE ACT (CTH)
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into
account:
a) the probative value of the evidence; and
b) the importance of the evidence in the proceeding; and
c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of
the proceeding; and
d) the gravity of the impropriety or contravention; and
e) whether the impropriety or contravention was deliberate or reckless; and
f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person
recognised by the International Covenant on Civil and Political Rights;
g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to
the impropriety or contravention; and
h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
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RECORDINGS IN EVIDENCE
 The argument has been tried at FWC that as rules of evidence do not
strictly apply that evidence obtained by way of unlawful or covert recordings
should be admitted
 The argument hasn‟t got very far
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SECRET USE OF SURVEILLANCE
DEVICES
 Secret use of surveillance devices by employer or employee, may
constitute conduct which breaches the implied term of trust and confidence
(even if the conduct did not breach Invasion of Privacy Act).
 FWC or Court has discretion to admit evidence (even if illegally obtained)
but may exclude such evidence
 Obligation to discover documents in any Court discovery process
31

DEVICES
THOMPSON v JOHN HOLLAND
 See Daran Thompson v John Holland Group Pty Ltd [2012] FWA 10363
(Williams C):
 Employee secretly taped meeting with managers
 Employee played recording of meeting to another co-worker
 Evidence Act provides general guidance
32

THOMPSON v JOHN HOLLAND
 Conduct was held to be a valid reason for termination:
 breached WA State legislation (no secret recordings even by parties to
the conversation) and following earlier authority should not be admitted.
 This separate breaches of the WA legislation – making the recording
and replaying to a third party were each sufficient on their own to
warrant his termination.
33

THOMPSON vJOHN HOLLAND
 Regardless:
 Non consensual taping and playing of tape was held to breach code of ethics of the
employer (employees to act with integrity towards each other) and relationship of
trust with other employees.
 This in turn caused the relationship of trust and confidence between the applicant
and the employer was destroyed by the Applicant‟s actions.
 Applicant failed to provide evidence of any lawful interest of his that he was
protecting by making and replaying the secret recording (because he did not make
out that the project manager was threatening his employment. The conversation did
not have the potential to affects his lawful interests).
34

DEVICES
LEVER v ANSTO
 Ron Lever v Australian Nuclear Science and Technology Organisation
[2009] AIRC 784 (Drake SDP)
 Long and difficult dispute between the union delegate and the employer.
 Investigation into misconduct – applicant secretly recorded disciplinary
meetings and was terminated, in part, because of it.
35

LEVER V ANSTO
 Secretly taping the disciplinary meeting was misconduct which was a valid
reason for his termination.
 Applicant knew the employer would be outraged if he asked to tape record
the meetings. He knew that it was objectively inappropriate.
 Secretly recording the meetings was deliberate misconduct.
36

LEVER v ANSTO
Lever v ANSTO [2009] AIRC 784 (Drake SDP)
 [103] Applying ordinary Australian community standards I do not accept that
any employee or any employer would be content to have any meeting they
were attending secretly tape recorded. The ordinary conduct of personal,
business and working relationships in our community is predicated on the
basis that if there is to be any record of a meeting it will be agreed in
advance. Anything else is quite properly described as sneaky. Its very
sneakiness makes it abhorrent to ordinary persons dealing with each other
in a proper fashion.
37

DEVICES
WINTLE v RUC
 Wintle v RUC Cementation Mining Contractors Pty Ltd (No. 3) FCCA 694, 12 July
2013 (Lucev J, Federal Circuit Court).
 Recording made inadvertantly
 Both parties consented
 Considering the Evidence Act: even if the recording has been obtained improperly or
in consequence of an impropriety, or in contravention of a law, the desirability of it
being admitted outweighed exclusion because:
 It is the best evidence available of what occurred
 An actual recording is likely to assist significantly with the question in issue
regarding undue influence or pressure exerted
38

DEVICES
HASLAM v FAZCHE PTY LTD
 Haslam v Fazche Pty Ltd t/as Integrity New Homes [2013] FWA 5593, 12 August 2013 (Wilson C).
 2 recordings were made of 2 meetings between the applicant and her managers, and were made
without the knowledge of the managers.
 Held:
 Evidence Act is relevant, but to be considered within the context of the Fair Work Act.
 The recordings were made in contravention of the relevant SA legislation (Listening and
Surveillance Devices Act 1972) because they were made without the knowledge of the
managers.
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HASLAM v FAZCHE PTY LTD
 The recordings were made improperly or in contravention of an Australian
law
 The recordings will unlikely determine the Applicant‟s claims
 Therefore, desirability of admitting the evidence does not outweigh the
undesirability of admitting it – recordings not to be admitted.
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PART 2: PRIVACY

PRIVACY ACT 1988 (CTH)
 The Privacy Act 1988 (Cth) gives effect to Australia‟s agreement to implement
guidelines surrounding protection of privacy and trans-border flows of personal data
adopted in 1980 by the OECD as well as our obligations under Art 17 of International
Covenant of Civil and Political Rights.
 It regulates the collection, disclosure and use of personal information.
 The Act operates by the use of 11 Information Privacy Principles (IPPs) and 10
National Privacy Principles (NPPs).
 The IPPs are somewhat limited in their application because they apply only to
Commonwealth government agencies and government agencies of the ACT.
42

PRIVACY ACT 1988 (CTH)
 The Act operates by the use of 11 Information Privacy Principles (IPPs) and 10 National Privacy Principles (NPPs).
 The IPPs apply only to Commonwealth government agencies and government agencies of the ACT.
 The NPPs are broader in their provision. They apply parts of the private sector except “small business operators”
 NPP 1: Collection
 NPP 2: Use and disclosure
 NPPs 3–4: Information quality and security
 NPP 5: Openness
 NPP 6: Access and correction
 NPP 7: Identifiers
 NPP : Anonymity
 NPP 9: Trans border data flows
 NP 10: Sensitive information
43

PRIVACY ACT 1988 (CTH)-
EXEMPTIONS
 The Privacy Act is limited in its relevance to employees for the following reasons:
 Acts or practices by a private organisation that is or was an employer, in relation to ‘employee
records’, are exempted from the Act‟s operation if the acts or practices directly relate to a
current or former employment relationship.
 Employee records‟ is broadly defined under the Act: "employee record", in relation to an
employee, means a record of personal information relating to the employment of the employee.
The Act sets out a long list of examples:
 Record of engagement, training, disciplining, resignation, termination of the employee
 Terms and conditions of employment
 Contact details
 Performance or conduct, hours of work, pay, union membership, leave, taxation, banking or
superannuation.
 Privacy Act does not apply to a Small Business Operator ie a business with an annual turnover
of $3million or less
44

PRIVACY ACT 1988 (CTH) –
AMENDMENTS
 The Privacy Amendment (Enhancing Privacy Protection) Act 2012 was passed in
2012. The Act will commence on 12 March 2014
 The Act includes a set of new, harmonised, privacy principles that will regulate the
handling of personal information by both Australian government agencies and
businesses. These new principles are called the Australian Privacy Principles
(APPs).The APPs will replace the National Privacy Principles and Information Privacy
Principles
 While these reforms streamline the Act, the amendments do not alter the exemptions
which limit this act from having broad applicability to the employment context.
45

INFORMATION PRIVACY ACT 2009
(QLD)
• Regulates the collection and handling of personal
information in the public sector
• 11 IPPs apply to public sector agencies generally
• 9 NPPs apply to Queensland Health
• QLD IPPs and NPPs closely mirror Commonwealth IPPs
and NPPs
• no employee records exemption
• Complaints for breaches of NPPs and IPPs are made to
the agency, if unresolved the Information Commissioner
and ultimately to QCAT
46

OTHER OBLIGATIONS
 Privacy obligations may arise under contract of employment or EBA
 Contract of employment (mutual trust and confidence term)
 Emerging Tort of Privacy
 Law Reform to improve obligations?
47

Trent Johnson, Senior Associate
COMPENSATION
ENTITLEMENTS FOR SERIOUS
/ TERMINAL ILLNESS AND
DISEASES

WHO DO WE ACT FOR?
 Employed workers
 Sub-contractors
 Self-employed workers
 Spouses and other family members
 Dependants
 Home renovators
 Estates / Executors
 Retirees/Pensioners
49

WHO CAN MAKE A CLAIM?
 Not limited to workers
 Not limited to those exposed in QLD, Vic or NSW
 Not limited to those exposed in Australia
 Those who are retired or perform home duties
50

WHO DO WE CLAIM AGAINST?
 Employers / Head contractors
 Manufacturers / producers of carcinogenic products (including asbestos)
 Owners / occupiers of premises
 Workers‟ compensation insurers
 Public liability insurers
 Both Australian and overseas insurers
51

THE QUEENSLAND POSITION
 → Statutory (WorkCover Qld or self-insurer)
 → Common law (Queensland Courts)
 In Qld, there are 2 avenues of compensation available to sufferers of latent
onset/terminal diseases:
 WorkCover Qld (or self insurer e.g.. Qld Rail) – Statutory insurers governed
by the respective workers‟ compensation legislation in Qld
 District or Supreme Courts – general Courts not specifically geared for
asbestos/terminal illness claims
52

QUEENSLAND TIME LIMITS
 Workers‟ compensation claims
 6 months from date of diagnosis or death (if no earlier diagnosis) – all
latent onset claims
 Can extend in limited circumstances but no ongoing treatment costs
 Common law (negligence) claims
 Dust related conditions - No time limit but must be filed within lifetime
otherwise vast majority of entitlements extinguished
 Non-dust related conditions - 12 months from date of diagnosis or
becoming aware of material fact of a decisive character – still need to be
filed within lifetime
53

DUST-RELATED CONDITIONS
 Aluminosis
 Asbestosis
 Asbestos induced carcinoma
 Asbestos related pleural disease
 Bagassosis
 Berylliosis
 Byssinosis
 Coal dust pneumoconiosis
 Farmers‟ lung
 Hard metal pneumoconiosis
 Mesothelioma
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DUST RELATED CONDITIONS
(CONT.)
 Silicosis
 Silicotuberculosis
 Talcosis
 Any other pathological condition of the lung, pleura or peritoneum
attributable to dust
 Does not include illness related to tobacco

WHAT IS ASBESTOS?
 Asbestos is a naturally occurring group of
minerals
 Used for:
 Building products;
 Piping;
 Insulation materials;
 Brake lining and;
 Other friction products.
56

ASBESTOS DISEASES
 Since 1945 about 7,000 Australians have died from mesothelioma
 This figure is expected to rise to 18,000 by 2020
 More than 700 deaths per year in Australia from mesothelioma alone
 Other asbestos related cancers may cause between 30 and 40,000 deaths
by 2020
57

ASBESTOS DISEASES
 Asbestosis
 Asbestos related lung cancer
 Mesothelioma
 Asbestos Related Pleural Disease
(ARPD)
 Pleural plaques
58

PEOPLE MOST LIKELY TO
DEVELOP ASBESTOS RELATED
DISEASE
 Asbestos miners
 Asbestos product manufacturers
 Maritime workers
 Carpenters
 Plumbers
 Electricians
 Motor mechanics
 Recent trends (bystander exposure)
such as home renovations, washing
overalls covered with asbestos
 Future trends … DIY home
renovators/removal of floorings
59

COMMON LAW DAMAGES
 General damages for the pain and suffering of the victim as a result of their
illness
 Loss of expectation of life
 Past and future out of pocket expenses
 Cost of domestic assistance provided by family members – if family provide care
– plaintiff can claim – thresholds apply
 Gratuitous care – provided by the plaintiff – if the victim was helping family
members, child care etc., the plaintiff can claim at commercial rates – thresholds
apply
 Past and future economic loss
 Past and future superannuation entitlements
 Medical care costs, including palliative care
60

RECENT CASES
 Amaca Pty Ltd v King [2011] VSCA 447
 62 year old former machinist
 Performed repair work at factory owned and operated by James Hardie
& Coy in Welshpool WA
 Jury awarded $1,150,000 (including $760,000 for pain and suffering
and loss of enjoyment of life)
 Supreme Court of Victoria upheld decision
 High Court refused leave to appeal
61

RECENT CASES
 Mario Perez v The State of New South Wales
 68 year old former diesel fitter
 Employed as a diesel fitter for the Urban Transport Authority from 1978
to 1988 at Chullora Bus Depot
 Exposed to asbestos engine gaskets, as well as asbestos dust during
the removal of the depot‟s roof
62

RECENT CASES
•Mario Perez v The State of New South Wales
•Provided care and domestic services for: infant grandsons;
granddaughters; wife
•Dust Diseases Tribunal awarded $1,318,506.24
•Defendant appealed
•Expedited hearing in court of appeal – heard 8/5/2013
•Rehearing in DDT – heard on 9 June 2013
•Currently waiting on outcome of rehearing by DDT Judge
63

SUPERANNUATION AND
DISABILITY INSURANCE CLAIMS
 What is Superannuation?
 Superannuation has been compulsory since 1992
 Almost everyone in the workforce has had superannuation at some stage
 Employer currently pays minimum 9.25% of salary into a super fund
(increasing to 12% by 2020)
64

DEATH BENEFITS
 Most Super funds provide automatic life insurance to their members.
 Binding and non-binding nominations
 Binding nominations (automatically lapse after 3 years) – The Trustee
MUST pay to the person you have nominated. Only certain people can be a
binding nominee i.e. dependants
 Nominated beneficiary (or non-binding) – is a guide to the wishes of the
deceased but the Trustees can decide otherwise if they think appropriate.
65

DISABILITY BENEFITS
 Total and Permanent Disability (TPD) Benefits:
 Insurance benefits that can be claimed if you are unable to perform the work
that you are reasonably trained or qualified to do by education training and
experience.
 You do not have to be unable to do ALL work, just the work you have the skills
to do.
 Total and Temporary Disability (TTD) Benefits:
 Usually called income protection or salary continuance
 Usually pay a monthly benefit for 2 years, 5 years, until age 65 etc.
 Multiple claims?
 Yes for TPD
 No for TTD/ Income Protection
66

TERMINAL ILLNESS BENEFITS
 1 July 2007 legislative amendments
 You can access your super if you have a life expectancy of less than 12
months, and any benefits released are entirely tax-free.
 Later changes made by most Super Funds/Insurers mean that many people
can claim their life/death insurance benefits whilst they are still alive.
 How long does a terminal illness claim take?
 Anywhere from 2 weeks to 3 months depending on the claim and
whether documents have been completed correctly.
67

ANY QUESTIONS?
 Important that legal advice be obtained as soon as possible after diagnosis
Trent Johnson
Senior Associate – Asbestos and Dust Diseases
 Ph: (07) 5430 8743
 Mob: 0409 898 128
 E: tjohnson@mauriceblackburn.com.au
68

PART 3: EMPLOYEE
INFORMATION AND UNION
RIGHT OF ENTRY

CONTENTS
 Obligations of unions officials with employee information
 Restricting rights of entry in cases of misuse
 Case study: baiada poultry
70

71
RIGHTS AND OBLIGATIONS OF PERMIT
HOLDERS RELATING TO DOCUMENTS
 Section 482(1)(C) provides a permit holder with the right to inspect, and make copies of,
records and documents directly relevant to a suspected contravention (other than non-
member records or documents which do not substantially relate to the member‟s
employment s482(2A))
 The note to that section prescribes that the use or disclosure of personal information
obtained under this section is regulated under the Privacy Act – but there is the exemption
for employee records.
 Section 504 provides that a permit holder must not use or disclose information or a
document obtained by right of entry for a purpose that is not related to the investigation or
rectification of the suspected contravention, subject to some exceptions.

72
EXCEPTIONS TO PROHIBITIONS ON USE
OR DISCLOSURE
 The person reasonably believes that use or disclosure is necessary to lessen or prevent a serious
and imminent threat to an individual‟s life, health or safety, or a serious threat to public health or
safety;
 The person has reason to suspect that unlawful activity has been, is being or may be engaged in,
and uses or discloses the information or document as a necessary part of an investigation of the
matter or in reporting concerns to the relevant person or authorities;
 The use or disclosure is required or authorised by or under law;
 The person reasonably believes that the use or disclosure is reasonably necessary for a range of
specified purposes by an enforcement body (within the meaning of the Privacy Act 1988);
 if the information is, or the document contains, personal information (within the meaning of the
Privacy Act), the use or disclosure is made with the consent of the individual to whom the
information relates.

RESTRICTING RIGHTS IN CASES OF
MISUSE OF RIGHTS
 Section 508 provides for the FWC to restrict permit rights of unions or officials (including
revocation, suspension or the imposition of conditions) if satisfied that a union, or union official,
has misused their permit rights
 An application can be brought by an inspector, or the FWC can act on its own initiative In
“exceptional circumstances” (see Re: NUW [2011] FWA 4096 - Baiada)
 Misuse can include:
 Repeatedly exercising rights with the intention of, or with the effect of, hindering, obstructing
other otherwise harassing an employer or occupier;
 Encouraging a person to become a union member in an “unduly disruptive” manner;
 Acting with a collateral intent; or
 Acting with an improper purpose.
73

CASE STUDY: BAIADA POULTRY (RE:
NUW [2011] FWA 4096)
 NUW embarked on a campaign at Baiada Poultry site in South Australia.
 Two NUW officials entered Baiada pursuant to an ex parte FWA application and order
obtained to access non-member records, and an exemption certificate issued (which
allows no advance notice of an entry to be provided). The entry was purportedly to
investigate underpayment contraventions.
 In the entry, the officials:
 Obtained access to non-member contact details, which were subsequently used
to send personalised letters to employees regarding a union meeting; and
 Filmed video footage of employees working at the site, which was published on
the NUW website and aired on ABC‟s Lateline;
74

75
CASE STUDY: BAIADA POULTRY (RE:
NUW [2011] FWA 4096)
 FWA held that the actions of four NUW officials constituted a misuse of rights by:
 covertly filming the Baiada premises while on the premises pursuant to an Entry Order (for
purposes unrelated to the underpayment investigation);
 using the names of employees obtained through an order for access to non-member records
on invitations to union meetings (for purposes unrelated to the underpayment investigation);
and
 disclosing to Baiada employees information obtained through access to non-member
records.
 FWA held that there is no right under the FW Act to covertly film an employer's workplace without
authorisation.
 Order made against NUW not to film or record workplaces while exercising right of entry (unless
authorised).
 Individual officials‟ permits suspended.

PART 3: SOCIAL MEDIA AND ITS
IMPACT ON EMPLOYMENT

CONTENTS
 The Scale of Social Media
 Social Media defined
 The blurring of public and private
 Social Media, Misconduct and Unfair Dismissal
77

78
THE SCALE OF SOCIAL MEDIA
 It is clear that Australians are embracing social media such as Twitter, Instagram,
MySpace and Facebook
 In 2010, the Nillson company reported that Australians had the highest global
average for engaging with social media, an average of 7 hours per month per person
engagement with social media
 Facebook has 11,489,380 Australian users.
 25 % of these users don‟t bother with privacy settings
 Twitter has 2,167,849 Active Australian Users
 Since the dawn of twitter there have been 164 billion tweets
 Instagram has 1,083,924 Active Australian Users
 More than 5 million pictures are uploaded to Instagram every 24 hours

79
SOCIAL MEDIA DEFINED
 Social media refers to Internet sites and Mobile apps which allow individuals
and groups to develop content and share information via online networks of
people
 Includes sites such as Facebook, Instagram, Twitter, Vine, MySpace and
You Tube
 Is a form of mass communication

80
THE PUBLIC AND THE PRIVATE:
THE DIMINISHING LINE
 In Rose v Telstra, Ross VP analysed when out of hours conduct can give
rise to a valid termination, namely when:
 Objectively viewed, the conduct is likely to cause damage to the
relationship between the employee and employer, or
 The conduct damages the employer‟s interests, or
 The conduct is incompatible with the employee‟s duty as an employee
 The conduct must be of such a nature as to indicate a repudiation of the
employment contract by the employee

81
A RECENT EXAMPLE FROM THE
NEWS…
 Flight Centre employee Alex Moros wrote on Charlotte Dawson‟s (judge of Australia‟s Next Top
Model) Facebook page the following comment about her and fellow judge Alex Perry:
“Judges Charlotte Dawson, and Alex Perry Jeesus Christchurch guys lay off the botox and fillers!!! You
two need help.”
 Dawson went to Moros‟ page and worked out he was an employee of Flight Centre. She sent the
following to Flight Centre management:
“While we anticipate some people are going to have opinions about the show and even express their
distaste for the appearance of participants and judges, Alex and I feel that posts of this nature do not
reflect well on Flight Centre. I am a 47-year-old woman who has Botox. I don‟t have fillers. Whilst
Andrew has every right to express his disgust at the condition of our faces, I don‟t believe our choices
should be slammed by a Flight Centre employee.”

82
AN EXAMPLE FROM THE NEWS…
 Flight Centre has publically stated that Morow will not be disciplined in any
way as a result of the incident:
“We are aware of what has been said publicly. From our point of view, the
comment was made on his personal account in his personal time so it is not an
issue for us to be commenting on. He has formally written an apology to both
Charlotte and Alex from his personal email.”
Source: “He crititised her on Facebook. And she went straight to his boss.”
http://www.mamamia.com.au/social/charlotte-dawson-social-
media/?utm_source=rss&utm_medium=rss&utm_campaign=charlotte-dawson-social-media

SOCIAL MEDIA AND EMPLOYMENT
 This is the major area where social media and employment law intersect
 The cases appear to fall into a few categories:
 Employees expressing their frustrations with work online
 A Government employee making critical comment about government
policy
 Employees posting questionable photos during and after work hours
 Excessive use of social media during work hours
 Employees using LinkedIn to promote businesses competitive with their
employer
83

84
SOCIAL MEDIA IMPLICATIONS FOR
DISMISSAL CLAIMS: AIRING
WORKPLACE FRUSTRATIONS ONLINE
 Case 1: Luzsewski v Capones Pizzeria Kyneton [2009] AIRC 280
 In this case, an employer attempted to have an unfair dismissal claim dismissed on the basis
that it was frivolous, vexatious or lacking in substance
 The employee alleged that he was dismissed because he posted a status update on
Facebook saying he was “pissed off”. The employer alleged the comment related to the
employer requiring his girlfriend to work
 The post did not indicate at whom it was directed or mention the employer
 FWA held that the employer‟s motion should be dismissed as, if this was the reason for
dismissal, it was necessary to consider whether there was a valid reason for the dismissal

85
AIRING WORKPLACE FRUSTRATIONS
ONLINE
 Case 2: Dover-Ray v Real Insurance Pty Ltd [2010] FWA 8544
 In this case, it was held an employee published a negative blog on a MySpace page
following an unsubstantiated sexual harassment investigation was a valid reason for
dismissal
 The employee wrote on MySpace that management were “witch hunters” and that she had
just been through an investigation that “in the end advanced corruption”
 Thatcher C held that the employee‟s conduct was a valid reason for dismissal
 The employee had not only published the blog but had refused to modify or remove it within
a reasonable time
 It was not necessary to consider whether the employer had a social media policy or whether
the employee‟s conduct had damaged the relationship of mutual trust and confidence

86
ONLINE
Case 3: Damian O‟Keefe v Williams Muir‟s Pty Ltd t/a Troy Williams The Good
Guys [2011] FWA 5311
 Another decision where an employee‟s social media post were found to justify
their dismissal
 Following issues with his pay, the employee posted on Facebook that he
“wonders how the f**k work can be so f***king useless and mess up my pay
again. C***s are going down tomorrow”
 His employment was terminated for misconduct after the post was read by work
colleagues. Although the account was „private‟ and there was no express
reference to the employer, the employee had 11 work „friends‟

87
ONLINE
Case 3: O‟Keefe (cont)
 The employee argued that the posts were made outside work hours and no
mention of the employer was made on his webpage
 Swan DP referred to the company‟s handbook which contained policies on
bullying and harassment
 She commented that even without the handbook, “commonsense would dictate
that one employee could not write and therefore publish insulting and threatening
comments about another employee in the manner in which this occurred”
 It did not matter that the comments were made outside work hours and from a
home computer

88
ONLINE
Case 4: Fitzgerald v Dianna Smith t/as Escape Hair Design [2010] FWA 7358
 Ms Fitzgerald wrote on her Facebook page: “Christmas „bonus‟
alongside a job warning, followed by no holiday pay!!! WHOOOOO!
The hairdressing industry rocks man!!! Awsome!!!”
 Ms Fitzgerald had received less than she expected as a bonus and was
paid half her holiday pay by cheque rather than cash
 Ms Fitzgerald‟s employment was terminated, including because the
Facebook posts

89
ONLINE
Case 4: Fitzgerald (cont)
 Bissett C: “Postings on Facebook and the general use of social networking sites by individuals
to display their displeasure with their employer or a co-worker are becoming more common.
What might previously have been a grumble about their employer over a coffee or drinks with
friends has turned into a posting on a website that, in some cases, may be seen by an unlimited
number of people. Posting comments about an employer on a website (Facebook) that can be
seen by an uncontrollable number of people is no longer a private matter but a public
comment.”
 held that Ms Fitzgerald‟s posts were not detrimental to the business as it did not name the
workplace and there was no evidence that the 5 – 10 clients who were friends with Ms
Fitzgerald had read the comments. The posts didn‟t name the employer, and were otherwise
private.

90
ONLINE
Case 5: Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444
 The most recent decision on point, which was also in the employee‟s
favour, was the decision of Mr Stutsel was dismissed for making
negative comments on his Facebook page about management, which
management found amounted to sex and racial discrimination
 The employee contended that the comments were not derogatory and
that he had maximum privacy settings on his Facebook page

91
Case 5: Stutsel (cont)
 Roberts C held that the comments had “very much the favour of a group
of friends letting off steam and trying to outdo one another in being
outrageous”
 Roberts C was also critical of the company‟s failure to have a social
media policy
 Roberts C ordered that Mr Stutsel be reinstated, finding the employment
relationship could be re-established
 Case was appealed to the FWC Full Bench. The appeal was dismissed
 Case now before Federal Court for judicial review
ONLINE

92
Case 5: Stutsel (cont)
 FWC Full Bench: Justice Boulton, SDP Harrison, Deegan C
 [25] The posting of derogatory, offensive and discriminatory statements or comments about
managers or other employees on Facebook might provide a valid reason for termination of
employment. In each case, the enquiry will be as to the nature of the comments and statements
made and the width of their publication. Comments made directly to managers and other
employees and given wide circulation in the workplace will be treated more seriously than if such
comments are shared privately by a few workmates in a social setting. In ordinary discourse there
is much discussion about what happens in our work lives and the people involved. In this regard
we are mindful of the need not to impose unrealistic standards of behaviour and discourse about
such matters or to ignore the realities of workplaces.
ONLINE

Case Study: Banerji v Bowles [2013] FCCA 1052
 Commonwealth Public Servant employed as a Public Officer by Department of Immigration used an
anonymous Twitter handle “@LALegale” tweeted/shared comments which were critical or mocking of the
security polices of the company which ran immigration detention centres, immigration policies of the Federal
Government, Scott Morrison (Shadow Immigration Minister), the Minster for Foreign Affairs, the Prime
Minister and employees of the Department
 Department investigated her tweets and she was found to have breached APS Code of Conduct and the
Departments guidelines on use of social media and proposed termination [par 30]
 Social Media guidelines provided it was inappropriate for Departmental employee to:
 make unofficial public comment that is or is perceived to be harsh or extreme criticism of Government,
member of Parliament or political party of their policies
 Strong criticism of the Departmental policies that could disrupt the workplace
 Banerji sought declarations that the finding was an unlawful curtailment of her Constitutional right of freedom
of political communications

GOVERNMENT EMPLOYEES MAKING
CRITICAL COMMENTS
93

Case Study: Banerji v Bowles (cont.)
 Court was dealing with an interlocutory injunction application by Banjeree and held as
follows:
 there was no unfettered right of freedom of political communication in Australia [100]
 the right of political communication may be fettered
 Restriction imposed by law for limited purposes (even where they may incidentally
diminish completely the discussion of issues of government or politics) may be
compatible with the Constitution
 It is only when the law in question is inconsistent with the intended operation of the
system of government created by the Constitution that the implied constitutional
protection of freedom of communication on matters of government and politics [101]
 In any event, a constitutional right does not provide a licence to breach a contract of
employment [102]
 94
GOVERNMENT EMPLOYEES MAKING
CRITICAL COMMENTS

95
POSTING OF PHOTOS ONLINE
Case 1: Antony Dekort v Johns River Tavern Pty Limited t/a Blacksmith‟s Inn
Tavern [2010] FWA 3389
 The employee represented that he was unfit for duty on 30 and 31
December 2009 and sought to claim sick leave
 The employer had a photograph from a Facebook page showing the
employee participating in New Year‟s Eve celebrations
 The employee was not able to explain his actions
 His Application was dismissed as having no reasonable prospects of
success

96
Case 2: Mayberry v Kijani Investments Pty Ltd ATF The Investments Trust
Subway Wallsend t/a Subway [2011] FWA 3496
 An employee was dismissed following a photo on Facebook of her posing in a
cardboard car at work during work hours
 The photo was posted on Facebook by a friend, with the caption: “Lee in mine
and Lees subway car. Broom broom toot toot.”
 The company alleged the employee had stolen its property to make the car and
had caused irreparable damage to the company name
 Macdonald C found that the employee‟s dismissal was unfair because there was
no evidence of damage to the company name, the employee had not engaged in
theft and the dismissal was procedurally unfair

97
Case 3
 In a recent decision, two employees of a pumps manufacturer were
fined $1,500.00 by the Victorian Magistrates‟ Court after uploading
photographs of themselves planking at work
 They were dismissed from their employment
 They were charged with breaching the Victoria Occupational Health &
Safety Act
 No conviction was recorded

98
Case 3
 In a recent decision, two employees of a pumps manufacturer were
fined $1,500.00 by the Victorian Magistrates‟ Court after uploading
photographs of themselves planking at work
 They were dismissed from their employment
 They were charged with breaching the Victoria Occupational Health &
Safety Act
 No conviction was recorded

99
AAP, „Plankers bonkers? Workers fined for Facebook foolhardiness‟, The Age, 8 September 2011

100
EXCESSIVE SOCIAL MEDIA USE DURING
WORK HOURS
 Richard O‟Connor v Outdoor Creations Pty Ltd [2011] FWA 3081
 The employer terminated the employee‟s employment one day before his
resignation was due to take effect
 The employer discovered 3,000 chats in his Google mail account
 Gooley C concluded that excessive use of the social media for personal
reasons during work hours may constitute misconduct but there was
insufficient evidence to support a finding of misconduct in this case
 The company was ordered to pay the employee compensation for the day
he would have worked

101
LINKEDIN AND COMPETING WITH THE
EMPLOYER
Pedley v IPMS [2013] FWC 4282
 Employee was employed as a Senior Interior Designer by IPMS
 Employee had contract of employment which prevented him from competing with the IPMS
 IPMS had permitted the Employee to do some small private jobs (as RevealID) outside his work
hours which did not conflict with his duties as employer.
 Employee sent group email via his LinkedIn to contacts including clients and recent clients of
IPMS announcing that:
 he was going to expand RevealID to a fulltime design practice and asking recipients to look
at RevealID‟s website, social media pages, awards etc and keep “RevealID in mind”
 “one of the benefits of working in a new company is that you get the operators prior “big
business experience at small business rates!” and “no project is too big or small”.

102
EMPLOYER
Pedley v IPMS (cont…)
 Deegan C held that there was a valid reason for the dismissal as the sending of the LinkedIn
email breached a fundamental employment obligation
 Email stated that the Employee was seeking to build a full time operation which was not
confined to small jobs that the employer would not perform
 Employee was clearly seeking to set up a business in opposition to his employer, albeit in a
small way
 Employee was soliciting work from current clients of his employer
 Employee‟s email went way beyond the permission previously given by the Employer to do
small private jobs

103
EMPLOYER
Whitmar Publications Limited v Gamage and Others [2013] EWHC 1881 Ch
 Employer had LinkedIn accounts to promote its publishing business
 Employees were setting up competing business
 After resignation, the employees used contacts from Employer‟s LinkedIn account to
send message with a Press Release inviting people to attend an informal function to
promote the competing business
 English High Court granted an interlocutory injunction restraining the employees from
using the LinkedIn contact information

104
PRACTICAL TIPS FOR EMPLOYEES
USING SOCIAL MEDIA
1. There is no general right to privacy in Australia when it comes to social
media. Employers may be able to take disciplinary action against employees if
online activities has an impact on the employment relationship.
2. Be careful about bagging your boss, employer, clients or co-workers on
social media, particularly with an “open” social media account or are “friends”
with co-workers or clients.
3. Check social media privacy settings. You might want to consider having
them set at the highest possible level and avoid having your account accessible
by the public at large.

105
PRACTICAL TIPS FOR EMPLOYEES
USING SOCIAL MEDIA
4. Be careful in “liking” or “re-tweeting” comments which have negative
impact on your employer‟s reputation. They may imply agreement.
5. Check to see if the employer has a policy regarding the use of social
media.
6. If you have open social media, think about how photos you post may be
perceived by prospective employers checking up on you.
“The probability of being watched is directly proportionate to the stupidity of
your act.”
Post from Stutsel

106
PRACTICAL TIPS FOR NEGOTIATING OR
BARGAINING A SOCIAL MEDIA POLICY
 A good policy might include the following:
 A definition of social media;
 Application of policy – to whom and when does the policy apply;
 Information about the difficulty of maintaining privacy in social media;
 Advice on whether employee use of social media will be monitored by the
employer;
 A set of clear rules and standards that employees are expected to comply with;
and
 Information on the risk that social media for private communication will become
public.

ANY QUESTIONS?
Kamal Farouque
Principal – Employment and Industrial Law Section
 Ph: 03 9605 2823
 E: kfarouque@mauriceblackburn.com.au
Emma Thornton
Associate – Employment and Industrial Law Section
 Ph: 07 3016 0345
 E: ethornton@mauriceblackburn.com.au
107

Personal Injury 108
This information is prepared for the purposes of the seminar conducted on 22 August 2013 only. The content of this paper is not legal
advice. It is information of a general nature. Readers requiring legal assistance for their specific circumstances should not rely on the
content of the foregoing but should take appropriate legal advice.

QLD EILS Seminar: Emerging Issues in Workplace Privacy

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