Pressure is mounting to legislate the monitoring of workplace e-mails following a landmark unfair dismissal decision handed down in the Industrial Relations Commission (IRC) earlier this month.
The NSW government is seeking legal advice as to whether it can legislate the monitoring of workplace e-mails as Internet policy is covered by the federal government, not state law.
The advice is being sought amid claims the introduction of e-mail guidelines by the federal government last month fail to effectively address the problem because the policy is not legally enforceable or covered under legislation.
In the landmark case, an out-of-court settlement of more than $150,000 was awarded to two council employees who were dismissed for describing their bosses in unflattering terms in office e-mails.
As well as gossipy comments about senior staff the e-mails, which led to the sacking, ranged from questions about lunch and hairdressing appointments to workplace social events and who was friendly with whom.
A spokesman for NSW attorney general Jeff Shaw said the government has identified a need for legislation rather than guidelines and is investigating its options.
He said legal advice will be available in coming weeks and an interim report from the Law Reform Commission will be examined later this year.
In the meantime, the NSW privacy commissioner Chris Puplick is examining guidelines to assist in the formulation of the legislation and the Labor Council is preparing a submission to allow the distribution of union news over office e-mail.
This follows the sacking of an Ansett Australia employee last year for using office e-mail to distribute union information. In that case, the federal court ruled Ansett Australia acted illegally.
Labor council secretary, Michael Costa, said if the government didn't legislate, unions would launch a test case in the IRC. A spokeswoman for the federal attorney general, Daryl Williams, said the government receives a constant flow of enquiries regarding the privacy of workplace e-mails and Web-browsing activities from both employers and employees.
She said this led to the introduction of the Privacy Amendment (Private Sector) Bill 2000 to parliament last month, which covers the monitoring of all communications in the workplace.
In a paper on privacy guidelines in the workplace, the attorney general said it is clear most staff do not expect to completely sacrifice their privacy while at work.
"Typically staff access to network and computer systems is by password control giving the impression that no one can access files or monitor activities on the network," Williams said.
"Some staff may not be aware that system administrators are able to access everything on the network so keeping staff aware of workplace policies is very important to avoid misunderstandings."
According to federal privacy commissioner Malcolm Crompton, the most common problem with monitoring employee e-mails is that it is intrinsically invasive, which is why employees should be notified of what the rules are from the outset.
However, when Internet connectivity is supplied by an employer, it is within the employer's legal rights to impose conditions upon its use.
"It's important that employers are open and clear about their office e-mail and Internet usage policy including details on monitoring methods," Crompton said.
"Good practice suggests that management clearly spells out its expectations and permitted practices to employees to avoid problems later. Employees also mistakenly believe that if they delete their e-mail it is gone forever."
Crompton said workplace policy should cover adequate notice, forbidden uses, what is logged and who looks at it, the organisation's computer security policy as well as monitoring and audit compliance methods, all of which must be updated and circulated to staff regularly. Council for Civil Liberties president Kevin O'Rourke described the landmark IRC decision as a victory for privacy and commonsense in the e-mail debate. "It's very unlike other mail, most employers would not consider opening a letter marked private and confidential addressed to one of their employees," O'Rourke said.
Electronic Frontiers Australia (EFA) executive director Irene Graham agrees monitoring e-mail is a clear invasion of privacy and is no different to telephone surveillance. However, the EFA still opposed legislation questioning whether it would effectively resolve workplace disputes.
"Rather than monitoring e-mails, employers should develop and distribute a clear policy because employees should not be expected to guess company procedures and then be disciplined if they do not guess correctly," she said.
"It should be an implied term of the employee's conditions of employment that reasonable personal use is permitted."