The Fair Work Commission (FWC) has recently mandated the United Workers Union (UWU) to submit video and audio recordings used in the dismissal of a senior employee for alleged drug use. This decision highlights the complexities of privacy and employment laws across Australia.
Background of the Case
In May, the UWU dismissed their political coordinator for conduct involving alleged drug use at the Brisbane office in October of the previous year. The union supported their decision with CCTV footage, presenting both video and audio recordings during the disciplinary proceedings.
In preliminary unfair dismissal hearings, the political coordinator requested the Commission to order the UWU to produce policy documents related to drug testing and the circumstances requiring an independent medical examination. Additionally, he sought video and audio recordings from October 2 to 6 and documents referring to him post-incident.
Union's Objections and Commission's Findings
The union's legal representative argued against the production of audio recordings, claiming they were "not sufficiently relevant" and stating that the political coordinator had already admitted to the conduct. Despite these objections, Vice President Mark Gibian found the audio recordings "at least apparently relevant." He asserted that these recordings could help assess the severity of the conduct and any mitigating circumstances.
Vice President Gibian also noted the political coordinator's intention to use the union's presentation of the recordings as evidence of harshness in the disciplinary process and to illustrate his poor health, which he claimed affected his memory.
Privacy Concerns and Legal Implications
The political coordinator raised concerns about whether the recordings breached Section 43 of the Queensland Invasion of Privacy Act 1971, which prohibits using devices to overhear, record, monitor, or listen to private conversations. However, Vice President Gibian ruled that this did not justify a production order at this stage.
The UWU also objected on the grounds that producing the recordings could violate Section 44 of the Invasion of Privacy Act, which prohibits communicating or publishing a private conversation procured via a listening device. Vice President Gibian acknowledged these concerns but pointed out that the lack of evidence regarding the recording circumstances made it difficult to assess a breach.
The Commission's Decision
Using the Fair Work Act's Section 590(2)(c) powers, Vice President Gibian ordered the UWU to produce the requested video and audio recordings, along with the relevant policies and documents. He emphasised that the Commission would not review the recordings unless a party proposed to introduce them into evidence, at which point submissions on their admissibility could be made.
State and Territory Privacy Laws
This case brings to light the differing privacy laws across Australian states and territories. For example:
- Victoria: The Surveillance Devices Act 1999 regulates the use of listening and optical surveillance devices.
- New South Wales: The Surveillance Devices Act 2007 governs the use of listening, tracking, and optical surveillance devices.
- Western Australia: The Surveillance Devices Act 1998 controls the use of listening devices, optical surveillance devices, and tracking devices.
- South Australia: The Listening and Surveillance Devices Act 1972 regulates the use of listening devices and surveillance devices.
Employers must be cautious in handling recordings to ensure compliance with these varying legal requirements. The decision in this case underscores the importance of understanding and adhering to both state and federal laws regarding surveillance and privacy in the workplace.
Conclusion
The FWC's order for the UWU to produce potentially unlawful audio recordings underscores the significant legal and ethical considerations involved in workplace surveillance and privacy. As employment and human rights advocates, 1800ADVOCATES emphasises the need for employers to navigate these complexities carefully, ensuring compliance with all relevant laws to protect the rights and privacy of employees.
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