Workplace Privacy: Testing

1. Victorian Law Reform Commission (VLRC) This presentation does not constitute legal advice and should not be relied upon. Legal advice should be sought for all matters raised in this presentation. Workplace Privacy: Testing

2. In March 2002 the Victorian Attorney-General asked the VLRC to examine workplace privacy; The VLRC produced 4 publications (Information Paper, Defining Privacy, Issues Paper, Options Paper); Final Report (which includes a Draft Bill) tabled 5 October 2005. Background to Reference

3. Our Approach �Privacy� as an internationally-recognised human right and an important social value � but it is not an absolute right; Law should protect workers from inappropriate practices, not just protect information.

4. Examples of practices Practices considered include: audio and video surveillance; tracking (eg. GPS, swipe cards); biometrics; RFID technologies; internet and email monitoring (palm pilot, integrated mobile phone system); alcohol and drug testing; medical testing; psychological/honesty testing; x-ray technologies; genetic testing; searching.

5. Current Regulation Victorian regulation includes Surveillance Devices Act, Health Records Act, Information Privacy Act; Federal regulation includes Privacy Act, Workplace Relations Act, Telecommunications Interception Act; Federal/State constitutional issues.

6. VLRC Options Paper (2004): Testing Forms of testing considered: medical testing; psychological testing; drug & alcohol testing; genetic testing.

7. Medical testing Issues: Occurs with worker consent or if contained in federal industrial agreement; Doctor generally determines content of test; Common for employer not to provide inherent requirements.

8. Medical testing Regulation summary (as of mid- 2004): Doctor-patient relationship (disclosure duty/form of consent unclear); EOCV guidelines on non-discriminatory testing (voluntary compliance); Health Records Act (information-based).

9. Psychological testing Issues: Occurs with worker consent or if in federal industrial agreement; selection & assessment tool (minimal mandatory quality control) - inherent requirements; - battery of tests approach.

10. Psychological testing Regulation summary (as of mid-2004): APS ethical guidelines/Vic. Psychologists Registration Board Code of Behaviour (applies to members only); Application of Health Records Act.

11. Alcohol and drug testing Issues: Indicates presence of drugs than impairment; Drug detection window; No general standardisation of processing samples; Minimal limits on drugs tested for.

12. Alcohol and drug testing Regulation summary (as of mid-2004): Randomly regulated in federal industrial agreements and company policies; Application of Health Records Act (�health� information definition); Australian Standard on Drug Testing of Urine (voluntary compliance); NATA self-regulation (members only).

13. Genetic testing Issues: May be used for pre-employment health screening, on-going health surveillance; Consent issues; Accuracy of testing process and misuse of information.

14. Genetic testing Regulation: Privacy Act does not cover genetic samples; anti-discrimination laws may not cover genetic disposition or behavioural �traits�.

15. Case for Reform Technology drives introduction of practices which affect workplace privacy; Lack of clear guidance for employers/workers; Job applicants/workers with weak bargaining power have difficulty in objecting to overly invasive practices; Absence of laws balancing workers privacy and legitimate interests of employers.

16. Proposed Model Balancing interests of employers and workers; Matches regulatory response to the seriousness of the privacy intrusion; Distinction between work and non-work activities; Applies to workers broadly - some controls apply to job applicants; Independent regulator to oversee Act (drafted as technology-neutral as possible).

17. General Approach Employer obligation not to unreasonably breach privacy of workers at work; Unreasonable if: - no direct connection to business; - disproportionate response; - has not informed and consulted; - inadequate safeguards.

18. More detailed guidance for employers Codes of Practice: Advisory Codes of Practice (cover most work activities eg. medical testing, psychological testing); Mandatory Codes of Practice (eg. drug & alcohol testing); Approved Codes of Practice (regulator-approved codes created by employers).

19. Stricter Controls Authorisation: Non-work-related activities (eg. out-of-work drug testing); - direct and serious impact on business or reputation - cannot be reasonably undertaken while working - proportionate to protection of employer�s interest - inform & consult and adequate safeguards.

20. Stricter controls Authorisation: Genetic testing of workers - worker consent - substantial evidence of connection between work environment and a condition detectable by genetic testing with potential to seriously endanger health and safety - no other reasonable means of reducing or eliminating hazard or of detecting condition - test is scientifically reliable - inform and consult and adequate safeguards.

21. Stricter Controls (cont�) Prohibition: Prohibition on surveillance in toilet, change room, lactation room and wash room.

22. Compliance with Model Education; Individual complaints-based mechanism - rulings - compliance notices Regulator-initiated investigations; Regulator-initiated inquiries; Role of VCAT; Civil penalties for certain breaches.

23. Victorian Law Reform Commission GPO Box 4637 Melbourne Victoria 3001 DX 144 Melbourne Level 10, 10-16 Queen Street Melbourne Victoria 3000 Telephone 8619 8619 fax 8619 8600 www.lawreform.vic.gov.au