Report details ‘serious, harmful’ data and privacy breaches of workers

“The use of artificial intelligence (AI) and automated decision making (ADM) is significantly shaping workplaces across sectors, impacting employers, staff, regulators and the community,” Chesters said.

“While AI and ADM can create opportunities for workplaces such as increased productivity and efficiency, and job creation and augmentation, these benefits need to be shared between employers and workers.”

A major section of the report focused on data, privacy, and the surveillance of workers, with various contributors to the report raising alarm bells over some of the more exploitative practices that have occurred during this era of technological advancement.

The Victorian Trades Hall Council outlined what they perceive as excessive data collection, noting that “biometric testing, 24/7 monitoring, and invasive machine learning techniques” were concerning.

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“This is being used to infer information about the ‘most intimate parts of workers’ lives’,” said that council.

The Australian Services Union argued that excessive monitoring of workers who operate out of remote roles could have harsh consequences.

“Excessive monitoring of work-from-home arrangements could also undermine protection of children at home. Where workplace tracking is accessed by poor actors, including perpetrators of domestic violence, workers would be exposed to a serious breach and harm,” said the union.

“Excessive monitoring and surveillance in these instances not only jeopardises the safety of workers but also their families.”

Another alarming sentiment that was brought forward during the report was the collection of data, which was eventually fed into AI. This process was deemed dangerous as it often fails to tell “a complete story”.

“Workers are often experiencing unfair and unfavourable evaluations that endanger their employment because of these practices,” said the Finance Sector Union.

The Victorian Trades Hall Council listed how this process can pre-emptively define which workers are most likely to “rock the boat”. According to the union, employers have been caught using these technologies to discover the following about potential or current workers in their organisation.

• Their likelihood of falling ill and needing to take above-average sick days.
• Their likelihood of becoming pregnant.
• Their sleep, fitness, and wellbeing habits.
• The structure of their personalities, including tendencies for disobedience.
• Their work satisfaction.
• Their likelihood of wanting to stay in the company long term.

In terms of addressing these issues, the committee included some recommendations and amendments relating to the Privacy Act 1988 (Cth) and Fair Work Act 2009 – which they believe should better protect workers, their data, and privacy.

The recommendations are as follows:

• Banning high-risk uses of worker data, including disclosures to technology developers.
• Prohibiting the sale to third parties of workers’ personal data and any data collected in connection to work or undertaken during employment.
• Requiring meaningful consultation and transparency with workers on the use of surveillance measures and data used by AI systems in the workplace.
• Empowering the Fair Work Commission to manage the dispute resolution process for complaints relating to breaches of workers’ privacy obligations.
• Work with states and territories to develop greater consistency and better protections against excessive and unreasonable surveillance in the workplace.
• Explicitly prohibit employers from using technological surveillance in relation to an employee’s protected attribute.

Criticisms

Some of these recommendations drew criticism from the Business Council Australia, which is concerned with the direction – claiming that employers are already facing IR changes that are “making workplaces less flexible and less productive”.

“Harnessing the power of technologies like AI is imperative to fixing sluggish productivity growth, and we need sensible regulations that safeguard communities, while also fostering a culture of innovation,” said Business Council chief executive Bran Black.

“At a time when we have significant productivity challenges, this union-backed approach will simply add more red tape and slow down technology take up – ultimately, this is bad for workers and bad for business.”

“Recent IR law changes are already making workplaces less flexible and less productive. If we start allowing unions to dictate decisions about workplace technology, then we will become a less attractive place to invest and do business.”

“Other jurisdictions have flagged that cumbersome regulation on AI and digital technologies is a productivity and competitiveness sapper – Australia has to learn from these experiences and find the right regulatory balance that still allows us to be an AI leader.”