A commonly asked question on the technicalities and safety considerations when it comes to implementing AI, cybersecurity, and technology is on the increase in today’s modern workplace. 

To learn more about future trends shaping workplace health and safety, our team of industry experts explored this topic in detail recently. 

WHS considerations in relation to spyware and monitoring of employee activity online

With the increase and permanence of remote work, businesses may be looking at several factors relating to employees working away from the office. For example, employers may be looking at the sustainability of this employment scenario by assessing productivity, risks to the  security of their intellectual property and client data etc. 

Some potential methods for employers to “monitor” employee’s online activity include: 

  • Time tracking software (recording hours worked, time spent on specific tasks and breaks taken)
  • Communication and collaboration tools (email/instant messaging platforms, project management software to monitor how employees interact and collect insights into responsiveness, participation and progress on tasks). 
  • Virtual Private Networks (a system where employees connect to work via the company’s VPN while offsite, allowing companies to monitor internet traffic and ensure secure access to company resources). 
  • Screen monitoring software (software that can capture screenshots or record employee’s computer screens periodically or in real-time – monitoring that employees are engaged in work and not other activities). 
  • Email and document monitoring (where an employer monitors the information in emails and documents) 

Other AI tools that employers/workers may be using already: 

  • ChatGPT and similar chatbot applications (Chatsonic, OpenAI Playground, Jaster Chat, Bard AI, Bing AI)
  • Virtual Assistants (Siri, Google Assistant, Alexa) 
  • Voice Recognition Systems (converting spoken language to text) 
  • Image recognition (tools using AI algorithms to analyse and interpret visual data, enabling applications such as facial recognition, object detection and content moderation) 
  • Natural Language Processing (NLP) tools (used to process language, enabling tasks such as sentiment analysis, text classification and language translation) 
  • Robotic Process Automation (tools to automate repetitive and rules-based tasks, freeing up human resources time for more complex and creative work) 

 

Employee monitoring – is it legal?

The laws regarding monitoring employees whilst they work (including regarding computer use whilst working from home) vary between different states and territories, but generally speaking, an employer is able to monitor computer usage so long as employees have been notified about this in advance.

In NSW and the ACT their respective Workplace Surveillance Acts have strict rules about the form of notification given to employees before such monitoring is allowed, they also require that the employer have a written policy in place which explains how the surveillance is carried out. Surveillance cannot generally take place until at least 14 days after the notice is given (or for new employees, notice can be given at any point prior to employment commencing). 

In the ACT there is also a requirement to consult with staff before any surveillance commences, but even where consultation is not required by legislation, we would consider it would be best practice in all situations to consult with staff. This will enable the employer to explain why surveillance is needed, and (hopefully) reach agreement on how this will be implemented in a reasonable way. 

So generally, yes, it is legal if the employer takes the appropriate steps to implement it. 

 

But is it ethical and safe?

We know that just because something is legal, doesn’t mean it is necessarily ethical or safe. Smoking cigarettes is legal in some contexts, but it is well known that it is incredibly bad for your health. Having monitoring systems in place where the purpose of doing so is not dealing with any legitimate purpose may be considered unethical. 

Businesses should ask questions such as is the need for the monitoring genuinely required? And is the level of monitoring only going so far as is reasonably necessary?

Sometimes the answer to these questions will be “yes”. Where the monitoring is required, this should be explained to the team carefully and respectfully, giving clear reasons why it is necessary. Document every discussion and communication about the topic as a record of consultation. 

Don’t forget to involve any worker representatives as applicable, such as the union.

 

Security and safety for AI tools

Work health and safety should be considered in all aspects of employment and the workplace environment, including technology used and how it may impact workers. The world seems to be rapidly changing so that everyone can now access and use AI tools, with new tools emerging daily. 

We are seeing many organisations participating in global discussion around the safety and security of information driven through these tools. Some organisations are banning the use of AI tools such as ChatGPT due to security concerns, for example, the Department of Education in at least 5 Australian states have put a firewall in place to restrict users in their domain from using ChatGPT. However, most private schools have not. 

Some large employers are also banning their workers from using this tool, including Amazon, Citigroup and Goldman Sachs. Additionally, the Department of Home Affairs has put a block on ChatGPT for public servants. Other organisations, however, are encouraging employees to use these sorts of tools.

It is essential to risk-assess the use of AI tools in an organisational context to determine whether sensitive information may be at risk by being filtered into an AI tool, such as medical records, names of customers/patients, financial data and other confidential information. 

Other risks include AI being used to develop content, advice, answers, etc which may turn out to be inaccurate or infringe someone else’s intellectual property. It is essential that where it is used for these purposes that whatever information it produces is carefully checked.

Employers should complete risk assessments in consultation with relevant stakeholders, and implement company policies on this matter, ensuring workers are consulted and then trained in the policy. 

 

Exploring ethical concerns: addressing psychological hazards in relation to cyber security

It’s crucial for organisations to pay close attention to the ethical implications of their policies and practices. When workers perceive certain actions as unethical, it can give rise to a wave of complaints. Overzealous monitoring of employees, for example, may lead to employees feeling targeted, victimised, harassed, micromanaged, or bullied and may experience psychological injuries related to these issues. To foster a healthy work environment, it is essential for employers to proactively engage in careful consultation with their workers, attentively listening to their concerns.

If a significant number of team members express complaints, concerns, or worries about specific aspects of the workplace, it may be prudent to reconsider their implementation. This cautious approach ensures that the well-being and morale of the workforce are prioritised, minimising the potential negative impact on employee mental health. 

In the context of psychological injuries, it is worth noting that workers’ compensation claims can be accepted based on an individual’s perception or belief about a situation. For instance, if an employee alleges that they were bullied by a manager, even if the subsequent HR investigation fails to substantiate the claim, the worker’s perception of the events could still allow the claim to proceed. This principle underscores the “no fault” nature of the workers’ compensation system.

There is the avenue of disputing psychological claims based on ‘reasonable management action’ being the root cause of the injury, however, the organisation would need to prove that their actions were reasonable. This would be analysed through an independent investigator arranged by the Scheme Agent/Insurer, they might well have a different view on the situation than the company holds internally.

Therefore, it becomes paramount for organisations to carefully evaluate the benefits of implementing contentious systems. This evaluation should include a thorough consideration of the potential introduction of new risks, particularly those of a psychosocial nature. 

It is important to clarify that this does not imply avoiding necessary security or surveillance measures. Rather, it emphasises the need to approach such changes with exceptional consultation and ensure buy-in from the team and stakeholders.

 

Summary

By prioritising ethical considerations, actively engaging in consultation, and promoting a culture of open communication, businesses can mitigate the risks of psychological injuries and foster a supportive work environment. 

The use of monitoring, AI tools and technology should be risk assessed like any other potential change or introduction of a new process, equipment or activity. Any new tool or system such as this should only be considered in line with the relevant legal requirements. 

Striving for transparency and collaboration enables employers to strike a balance between implementing necessary measures and safeguarding the well-being of their workforce.

 

About Employment Innovations

Employment Innovations is one of Australia’s leading providers of employment services designed to increase productivity and ensure compliance. Its services and solutions include all the tools that every Australian small to medium sized employer needs – including workplace advice, workplace safety, legal services, payroll solutions, migration, human resource management and HR software.

 

Disclaimer

The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact Employment Innovations for advice.

 

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