Citation
Employee monitoring in other industrial democracies

Material Information

Title:
Employee monitoring in other industrial democracies
Creator:
Pipe, Russell
Westin, Alan F.
Publisher:
U.S. Congress. Office of Technology Assessment
Publication Date:
Language:
English
Physical Description:
146 pages.

Subjects

Subjects / Keywords:
Supervision of employees ( LCSH )
worker rights ( KWD )
safety of workers ( KWD )
Genre:
federal government publication ( marcgt )

Notes

General Note:
This report explores how other advanced industrial democracies and some multi - national or international agencies are approaching workplace monitoring,.

Record Information

Source Institution:
University of North Texas
Holding Location:
University of North Texas
Rights Management:
This item is a work of the U.S. federal government and not subject to copyright pursuant to 17 U.S.C. §105.
Classification:
Y 3.T 22/2:2 El 2/7/v.1/emp. ( sudocs )

Aggregation Information

IUF:
University of Florida
OTA:
Office of Technology Assessment

Downloads

This item is only available as the following downloads:


Full Text

PAGE 1

EMPLOYEE MONITORING IN OTHER INDUSTRIAL DEMOCRACIES Thia document wu prepared for the OTA assessment, The Electronic Supervisor: New Technology. New Tensions, September 1987. Submitted by The Educational Fund for Individual Rights Prepared by Russell Pipe and Alan F. Westin FINAL VERSION, August, 1986 Thia docuaent wu prepared by an outside contractor as an input to an ongoing OTA nt. It does not necessarily reflect the analytical find:l:nge of OTA, the Advisory Panel, or the Technology Alaea1Mnt Board.

PAGE 2

-~ -' -~, ___.,, I .~ ..,,_)' ') .. ... .. .. ...... ,h .. .: '-~---. _....,_ ._,--........... -.... __ ...---.,,, .. ACKHOWLEDGEMEHTS The authors wish to acknowledge that the Norwegian section was substantially drafted by Professor Jon Bing, Director of the Norwr.gian Center on Computers and Law, and the West-German study was prepared by Frank r..uit~nbrouwe.~, a lawyer and journalist in Amsterdam. Assistance witti the w~st:.German section was given by Professor Spiros Simi tis, University of Frankfurt Labor Law Center, and Dr Stefan Walz, prof@ssional stilff, Of fief! of the Hessen Data Protection Commissioner. Very helpful contributions also were provided by Oscar de Vries Reilingh, Director., c~n"va Off.ice, I11tr.rnc1tio1111l Confederation of Free Trcido Unions; Guy Ryder, Sec: '~ary for the Industrial Trade Section, International Federation of c. .mercial, Clerical, Professional and Technical Employees (FIET); John E~t:uls, Director of the Trade Union Advisory Comittee to ~,e OECD, Paris, France; Professor Jacques Berleur, Facult~s Universitaires, Notre-Dame de la Paix, Namur, Belgium, Eirik Dj,Snno, The Data Inspectorate, Oslo, Norway, Dr Ulrich Danna.nn, Deputy Federal Data Protection COlllllissioner, Bonn, Wet Ger:nany; Dr Ray v Austin, Rarporteur, Coaaission on Telecoaaunications and Information Policy, International Chamber of Commerce (ICC) Lon:ion, England, Werner Vaupel, Coanissioner for Data Protection, Hoechst AG, Frankfurt, West Germ~ny; Jan Freese, Director General, Data Inspection Board, Stockholm, Swoocn, Antoine Pez, Chargtl de Mission, Commission for Inform'1tic!I .111d Liberties (CIIIL) Paris, France, Dr Rainer J Schweizer, Data Prot~cti~n Office, Federal Ministry of Justice, Bern, Switzerland; ancl Tom Riley, Riley Information Services, Toronto, Canada. I ., .-:;a ...... r:

PAGE 3

I I I I t I 1 ,1 : -) _, ',,-,.. \ ' ' j -~ ..... --.. CONTENTS PART I: OVERVIEW OF NATIONAL SITUATIONS IN OTHER INDUSTRIAL DEJ>CRAC I ES . . INTRODUCTION . . "l.t,,I, MAJOR VARIABLES IN NATIONAL SITUATIONS 247 PART II: EUROPEAN NATIONS: FEDERAL REPUBLIC OF GERMANY AND NORWAY, AND BRIEFER TREATMENT OF FRANCE, AUSTRIA, BELGIUM AND SWITZERLAND . FEDERAL REPUBLIC OF GERMANY . . . . . Worker surveillance --background . i~s Personnel Information Systems VDU Monitoring Co-detennination of technical monitoring systf!IIIS ~-:., :_ Te 1 ephone monitoring . ;. -: Legislative situation . ... ?.:.> NORWAY -'.>,""\-. . . .., ..._.... Worker surveillance--pre-hfgh technology 3e~ Current surveillance situation Union of Meta 1 Workers initiative. .::'5 c Telephone monitoring . -;~1 Productivity monitoring 'l Video survef 11 ance 3 J z. Use of employee records for surveillance 3/2. FRANCE THE NETHERLANDS . . . . . . . . . i l~ . . . . . . . . 32.2... Video System Monitoring Production Personnel ., . AUSTRIA . . . . . . . . . . -: '~ ..,_. Constitutional Ruling . . . . . 3~ BELGIUM . . . . . . . . . 32;. SWITZERLAND . . . . . . . . . !.-=l"! . ..... ----7.-,: :... ., 2(o3 PART III: BRITISH AND CO"'10NWEALTH NATIONS: CANADA AND AUSTRALIA ~~-,, CANADA l:.. . . . . . . . . . . . ., ...... B k d ac groun ,;;,,,,,. Union Positions '33~ VDTs and Work Mani torf ng 333 El ectron 1 c Su rve 111 a nee 3'fZ. Employee Surveillance 31;7 Su111111 ry 3 't1

PAGE 4

AUSTRALIA . . . . . . New Threats to Privacy ....... 3$2 Intrusive Employment Practices .... 3$3 Official Guidelines Issued ..... 3.Si Typical Employee Monitoring Compla;nts 3$5 Trade Union Activities 35,a .?, ... . -..-PART IV: FAR EAST DEMOCRACIES: JAPAN . . . . . s;., JAPAN Popular Attitudes Toward Privacy .. 3,~ Attitudes Toward Privacy Protection Measures . Worker Monitoring in Japan ... 3~o/ -:-, ... ,,# PART V: INTERNATIONAL TRADE UNION ACTIVITIES . . . 3~? Intrusive Practices Identified .... 37~ Risks of Monitoring Misuse High ... 3;.? Limitations on Monitoring Urged .. ;::;: Surveil 1 ance Conditioned on Agreed Practices : ;.:. PART VI: INTERGOVERNMENTAL ORGANIZATIONS: l,JN, ILO, AND COUNCIL OF EUROPE . 3 e~.) UN C0"'4ISSION ON HUMAN RIGHTS . Draft Guidelines for Personal Files . Final Approval in 1986 INTERNAl'IONAL LABOR OFFICE Compendium of Principles Asked Technology Threats Raised . . . . . COUNCIL OF EUROPE .. Personal Data Convention Ratified Employment Sector Records Examine~ PART VII: OBSERVATIONS . < t!!.'2, . ..., -.:..., . 3i_; 3~3 3-q:5 J

PAGE 5

-~ ,-i .. -:) l l PART I OVERVIEW OF NATIONAL SITUATIONS IN OTHER INDUSTRIAL DEMOCRACIES t/

PAGE 6

INTRODUCTION Workplace monitoring, as discussed previously in the theoretical section and U.S. materials of our report to OTA, involves a society's value system, institutional arrangements, and 11911 rules on at least five Jor social issues of current significance in advanced industrial democ:racies: The nature of work, and individual roles and responsibilities of workers; Employer-aployee relations, and the role of trade unions; Investigation and control of crime at the wrkplace, and related security-integrity issues (e.g., drug testing); The definition and protection of privacy-dignity interests of enployees; Use of advanced information technologies by private or public authorit 1 es. We also noted that workplace mnitoring issues need to be analyzed by taking into account three empirical conditions: the employer's declared purpose for an~ actual uses of monitoring; the type of monitoring techniques used; and the process by which monitoring is proposed, implemented, and administered. In this segment of our report to OTA, we explore how other advanced industrial democracies and some multi-national or international agencies are approaching workplace monitoring. Our goal is to collect experiences and social responses; examine legal/regulatory actions where these have taken place or are now being proposed; and to identify social or legal concepts in other societies of potential value for U.S. choices on workplace-mnitoring -issues.

PAGE 7

1 .. I ,--... MAJOR VARIABLES IN NATIONAL SITUATIONS In examining how other advanced industrial democracies have treated wrkplace monitoring, we will be concentrating our reports on the OECD nations. While each country has its unique national institutions and processes, several groupings of political/legal cultures are present: the British-Co111110nwealth nations (Britain, Ireland, Canada, Australia, New Zealand), sharing the English connon-law legal tradition; Northern-European nations with a strong Napoleonic-leqalcode and "administrative-state" tradition {France, West Gennany, Austria, Switzerland, Netherlands, Belgium); the Nordic countries, with a blend of continental legal tradi tion an~ Scandanavian social-welfare institutions (Norway, Sweden, Denrk, Finland); 1 the Southern-European nations (Italy, Spain, Portugal), with Latin adaptations of Northern-European legal-political cultures; 1 and Far Eastern industrial democracies (with Japan as the principal OECD member). Among these nations, there are at least three major variables in their national legal-political cultures that directly shape positions on workplace monitoring: (1) the industrial relations system; (2) legal/regulatory treatment of ->rk and workplaces; and (3) attitudes toward technology and privacy protection, and laws .evolved 1n response to new 1nfonnat1on technology uses; Each of these merits a brief description.

PAGE 8

1. Industrial Relations Systems a. Institutional Patterns In general. there are two main types of employee representation systems in other advanced industrial democracies (and some countries have both types 1n operation stnultaneously}: 1 The union-representation system, the most similar to the U.S., is a voluntarist1c system based on labor-management negotiated agreements. Employees have freedom to associate (or not); unions have rights to organize; union menbers elect representatives; and the union negotiates with management a detailed agreement as to terms and conditions of work. In the event of impasse, the union relies on the right to strike and management on the right to lock out workers who refuse management tems. Voluntary mediation systems and labor courts are used in some countries to resolve contract disputes. Nations with this system such as Britain, Ireland. and Greece, vary in whether there is one national union for all workers in each Jor industry (auto manufacture, elec tronics. etc.) as in Sweden and West Gennany, or whether several unions, often as many as three to five, share juridsdiction for different groups of workers (usually by skill or trade) within that industry, as in Britain. There can be industry -wide collec tive agreements (as when the entire steel industry and the steel union sign a contract), or there can be enterprise (one company) agreements. There are also national confederations of trade unions as well, along general lines such as industrial work, white collar wrk, etc. The union representation system creates a strong shop steward and local-union presence within individual plants, and _,,-

PAGE 9

-~ \ J i '--. . . . .... . ... .. -~. -important contract tems are often asserted and negotiated at that level. In Japan, unions are organized primarily along company lines: one union for Toyota, Sony, Hitachi, etc.; these "company" unions also belong to one of two in national confederations of Japanese trade unions. The union-representation syst ts often called a "powerstruggle" process, in which bi-polar positions are asserted and economic/political strength detennines the outcome; in this process, attitudes of the political parties and the government in power can play a key role, as can public S,YIIIPlthy --or lack of sympathy toward the position of unions or management. The other main industrial relations mechanism fs the employeerepresentation -,rks council system. This ts created by national legislation that provides for election by all -,rkers at a location of ployee representatives to serve on a wrks council for a plant or facility, composed of representatives of both employees and nagement; the legislation spells out a set of rights and procedures for this consultative system. Nations such as West Germany, Sweden, Belgium, and the Netherlands have legislated work councils, which operate alongside and are legally independent of the union represen tation systems in those countries. (In addition, West German codetermination legislation requires SOI representation for employees on the Boards of Directors of stockholder-based companies with more than 2,000 employees. Smaller companies are required to give employees one-third representation on their Boards.) The works councils are to consider all decisio.ns affecting work and workers. There fs an obl iga tion on nagement to discuss and cooperate with employee representa tives, and when they can agree, this produces work council decisions

PAGE 10

that wil 1 be implemented. Traditiona 1 ly, works councils dea 1 w; th hulth and safety, job environment, hiring and f;ring, wages and hours, wrk rules, etc. They can also take up election of company officers. investments. staffing plans, and social policies. in the past decade. new technology introduction and its effects have been a major topic of discussion among works councils. When management and employee representatives disagree over whether something should be done, or how. or whether a prior decision is being properly implented. the issue goes to labor courts for decision. (In West Germany. there is a hierarchy of local, regional, and federal labor courts.) Generally, these courts still recognize a substantial area of nagement rights, and will allow, for example, very broad latitude to managements in the decisions about designing or adopting new technology, or doing work measurements and perfonnance evaluation. The work-council system is often called a "power-sharing" system. b. Trade Uni.on Patterns The percentages of workers who belong to or are represented by unions varies considerably from country to country. The degree of unionization obviously has an effect on how strongly unions can assert demands and campaign effectively to win these, either in labor contracts or in legal/regulatory actions. Analyses of levels of union representation in the early 19801s generally divided industrial democracies into three groups: low, medium, and high unionization.* Asplund. C., "Information, Technology, and Trade Unions," in Bjorn-Andersen, N., Earl, M., Holst, O. and Mumford, E. (editors), Infonnation Society: For fil.~her, For Poorer, North-Holland Publishing Co 1982, p. 223. ,,,,-,

PAGE 11

) -..~-' '_.,. 11Low11 levels (23-401) United States France Japan . Canada Switzerland West Genany Netherlands 221 23 30 35 35 40 40 1 "Medium" levels (50-601) Italy Ireland Britain Austria . . . . High" levels (65-901) Belgium . . . Norway . . . Dennark . . . Finland . . . Sweden . . sos so 52 60 . 651 . 65 . 70 . 85 . 90 2,-,, Traditionally, union representation tended to be much higher in the industrial sectors than in office and white collar work. However, the expansion of government office work and a surge of white collar union organizing in OECD nations in the 1960's and 70's has brought office-work representation up substant1a 1 ly. In tenns of the;r general attitudes toward technological change, most European.unions were cautiously optimistic" in the 1950's and 1960's, because of rising em~loyment opportunities and levels, generally good pay and benefits, and the presence of expanding govemmental programs to cu!hion specific problems and provide social-safety-nets. The introduction of microelectronics in the fa.ctory and office in the 1970' s, accompanied as it was by rising unemployment, fears of permanent job losses, and concern over loss of union/worker influence 1n the work process, and with world-wide recession and oil-crises as the back ground, led many European unions to become worried and pessimistic about the /t)

PAGE 12

., i j ., t :. :I : .. z .. t .. -: .. J -1 t 4 '1 .: way employers were installing new information technology. One study by a Swedish trade union expert classified the dominant attitude of unions in European nations in the early 19801s toward new information technology as follows:* Pos1t1ve11 --West Germany, Italy, Austria, Netherlands, Nordic countries; "Negative" --France; "Unclear" -Britain, Switzerland, Ireland One important facet of recent trade union activity is the negotiation of Technology Agreements, especially for factory and office automation. In Britain, for example, a study of union-management Technology Agreements (primarily signed between 1979 and 1981) found the most frequent subject to be the design, installation, and operation of Video Display Units. Of 105 agreements examined, 66 had no mention of "machine monitoring" of VDU workers; 22 banned such a practice (though 3 of these contained "ambiguously worded" clauses); 9 had a "connitment to discuss" by the parties; and 8 accepted machine monitoring "subject to safeguards. 11** Asplund, op. cit., p. 221. ** Williams, Robin and Moseley, Russell, "Technology Agreements: Consensus, Control, and Technical Change in the Workplace (l),11 in Bjorn-Andersen et al., op. cit., pp. 240-241. II

PAGE 13

,,.. .., -... '1, _,. 2. Legal/Regulatory Treatment of Work and Workplaces While many laws and regulations governing work in OECD nations parallel those in the United States (occupational health and safety laws; payroll contribution for health and accident insurance, and old-age pensions, etc.), there are some important differences that can relate to worker monitoring issues. Many European countries promulgate legal standards or set "official guidelines" for work processes or conditions, covering either all workplaces or all workers using a particular machine or process. In the U.S., many of these matters have been left to union-management bargaining (in unionrepresented establishments) or to employer discretion, especially in private industry. Nations such as West Germany have been particularly active in promulgating ergonomics standards for VDTs, while Sweden and Norway have enacted broad Work Environment laws that oblige employers to pursue healthy, humane, and dignified work settings. Another major difference is that other industrial democracies have unjust dismissal laws, under which individual workers who are discharged can go before industrial courts or conmissions and challenge their tenninations. If the employer shows good cause or business justification, the employee loses, but ff the employee shows that arbitrary, unfair, or unjustified dismissal took place, the court or conmission can award the employee compensatory relief. Potentially, a worker who wanted to challenge a termination on the basis of unfair or in correct machine monitoring of performance could raise such an issue in an unjust dismissal action. The tribunal would look to see whether the employer's action was within management's powers and was fairly applied, or not. ;;..

PAGE 14

' -~ \ i I ,,J . .J .-~ .1 -~ I ... t .i '; . . -....... .. .. -' _..... ..:. . .. .... 3. Attitudes Toward Technology and Privacy Protection A useful snapshot of similarities and variations among CECO nations was provided by an eight-nation public opinion survey conducted in 1985 by Louis Harris International and the Atlantic Institute for International Affairs.* The eight nations were: France, West Germany, Britain, Ita:y, Norway, Spain, United States, and Japan. As can be seen, these eight nations cover the major types of national legal/political systems among advanced industrial democracies. In all, 9,000 interviews of persons of eligible voting age were conducted, with. sufficient numbers in each country to provide represen tative!sampling to the national populations. Similar polls were conducted by the Atlantic Institute going back to 1982. While the survey reported on many important topics (rising concern over unemployment as a result of technological change, willingness to undergo retraining, degree individuals have already used computers, etc.), we will focus on several responses related to national attitudes on infonnationtechnology use, work, and invasion of privacy issues Atlantic Institute for International Affairs, Louis Harris International, The Imgact of Technological Change in the Industrial Democracies, May, 1 as. .. ""' ',,.J

PAGE 15

... .... .. ,.__ ..,.._ --. __ ___.... __ -..:--... .. -... ... ... -.. .-. ... ... .. ,._ ... ...... -.,.. ... ... _.. .. '") .1 1 1 l / ----.,-, .. f :'--., 2-75 One question asked whether the use of information-processing systems will cut down on "more tedious tasks" in the workplace. The responses were: FRANCE GERMANY BRITAIN ITALY NORWAY SPAIN USA JAPAN Mostly agree 65 38 79 63 74 75 77 39 Mostly disagree 23 25 12 27 18 21 19 26 No answer/ No opinion 12 37 9 10 7 4 4 35 As this indicates, the publics in Britain, the U.S., Spain and Norway approved this view by over 701, while only 381 of West Germans and 39% of Japanese shared that view. (In the case of Japan, an unusualY high 351 had no opinion or did not answer that question.) A second relevant question asked which groups were among the most important "obstacles" to the "development of new technologies" in their country. The responses as to employers, labor unions, and political leaders were: FRANCE GERMANY BRITAIN ITALY NORWAY SPAIN USA JAPAN Our political leaders 14 20 21 37 12 12 35 16 Labor unions 21 14 43 21 6 6 25 14 Employers8 8 9 9 3 12 25 7 No opinion/ not sure 18 38 10 25 39 27 4 40

PAGE 16

\ t I ~; i 1 j t ., i l .i .. ; ., . .i ; ' .. ~-...... ... _,, ... -~.;. .... .J,1. ~. -. ...... - _...,._._ ....... -- .. .. -~~--~ It is interesting that, in the U.S. sample, employers and unions were cited is "obstacles" by an equal number of respondents (25%) while U.S. 0011tical leaders were seen as "obstacles" by a significantly higher percentage (351). Also worth noting is the result that in Britain, 431 of the British respondents cited labor unions as an obstacle, the highest number for any country surveyed. This probably reflects the highly-publicized positions taken by trade unions in industries such as newspaper printing and coal mining. A final question relevant for our topic asked whether respondents believed it will be increasingly possible to use computer data banks to infringe personal privacy. The responses were: FRANCE GERMANY BRITAIN ITALY NORWAY SPAIN USA JAPAN Mostly agree 71 51 75 37 56 69 68 50 Mostly disagree 19 20 13 35 35 24 28 18 No answer/ 4 no opinion 10 29 12 12 9 7 32 /~

PAGE 17

. .-...~I...-. ...:c~._.._
PAGE 18

, 4 .. -..... ---.~ ........... --. . . ..... -.. .,., In Europe,government historically has had a far greater role in citizens' lives. one consequence being far more personal information is collected by th~ various bureaucracies from municipal to central governnent authorities than is the case in the US. This is well-accepted tradition. Data protection legisla tion was not prompted as a reaction to the excessive collection of personal infonnatiqn by government agencieSi it was the introduction of data processing arousing fears that millions of mariual records suddenly would be automated, capable of unlimited and unrestricted linkage, reuse and dissemin3tion. Most European governments have or wi 11 impose data protection norms 011 users ( responsible keepers) of personal records. In the us,similar normative rules are often referred to as fair personal infonnation practices. Continental law is usually far more general and all~encompassing than Anglo-American practice of narrow target legislation. This is the case with data protection. Personal information is defined very broadly, essentially any detail that can be linked or identified with a particular individual. Similarly. they cover any process or activity in which data processing is involved. The only real delimitation in some laws, such as in Germany and Norway, requires that personal data collected 1111st be name-retrievable. Archj,cts of European data protection designed the legislation around the notion static databases (data banks) which could be identified, registered, inspected and, as necessary, erased. The convergence of data processing and telecomnunications renders obsolete the well-ordered concept embodied in these laws. Nevertheless, even the 1984 Data Protection Act of the United Kingdom is founded on registering fonnal systems of records and describing their main characteristics. The advent of word processing and new telematic services such as electronic mail and EFT are ~lmost impossible for data protection authorities to deal with. Automated, name-linked data are present in these applications.which brings them within the scope of the data protection law, but a fonnal database may not exist. Although the word monitor does not appear in any European data protection law, their objectives are certainly to regulate canputer-assisted monitoring, defined by Webster as "to watch or check on a person or thing. The principill focus of attention by data protection authorities (DPAs) fr0111 1973 to the present has been to establish national registers of databases-containfng personal data and prescribe compliance with statutory requirements. DPAs are trying to prevent the build-up of "profiles" or computer "dos~iers" on individuals. Such activities are referred to as preventing the monitoring of people, inasmuch as IIIOl'litoring is seen as the collection and/or linkage of numerous details about individuals into a master record. In this sense DPAs have been involved in ployee monitoring matters for some years. '-1?

PAGE 19

', ........ ... --..-- .......... ..,.._. __ ___ .............. __,,, .. ---............ ............. ...-. .......... .... -.. -. '~ ) Work monitoring, such as computer-usage monitoring, telephone-call accounting and work measurement, are subject to data protection regulation.!!. data collected can be related to specific employees and data processing is involved 1n the collection, storage or use of such infonnation. DPA officials have expressed both increased interest.and frustration over their inability to regulate applications of what are referred to as new 1nfonnat1on technologies". The advent of personal C"'1Uters and proliferation of terminals make the notion of registering static systems of personal records increasingly obsolete. Either through adaptation of existing data protection law or enactment of "second generation" legislation. European DPA leaders insist they wi 11 become more involved in new fonns of potential instrusion on personal infonnation privacy. It is because DPAs have been preoccupied with their first-line obligations of bringing large governaent and business personal 1nfonnation collections into co...,liance with data protection acts that work monitoring has not received significant attention. Trade unions and labor law are the focal point of su~ monitoring and are likely to continue to be for some time in the future. There appear to be no jurisdictional problems for DPAs to become involved with work ~--,\ monitoring problems along with trade unions, works councils and labor courts. _, ___ .,, It may be the failure of trade unions to seek DPA assistance that has not accelerated the use of data protection laws in allegedly improper monitoring practices. I \ iJ 1f

PAGE 20

; ,t ... .. J . .. -"' .. .... ,... .... -.... ,,, __ _.._ . .. ........ Main Provisions of Foreign Personal Data Protection Legislation Relevant to Coverage of Employee Monitoring N i at ona Provisiona Scopa of application: Central governmant Provinces/states Private sector covers all information traceable to identifi-able individuals Infomation collected and/or process~d uaing ccmputers Limits placed on per-sonal data collection Personal information IDWlt be collected for specified, legitimate purposes Individuals have right of access to inspect personal infonaation Sensitive personal details specified (collection only with data subject' knowledge and consent) Y Yes N No ... li y y y y y y 'f y N u~ :J~ 1 :t I !I I ft! C, ~! ... Ila. y y N y N y N y N N y y y y y y y y y y y yl y y y y y y y y y y N y y y 1 1 i 1 i r s at on f t,I 8 i "' I ... 1 >e r:: = "' ,8 e ... t 8 ,_. 3 I Cl 0 a ... M z UI y y y y y y y yS y y y y y y y y y y y y y y Nl y y y y y y y y y y y y~ y y y y y y y y y y y y y y yl y y y y y N y N y y y y 1 covers information concerning private affain, such as financial situation of individuals. 2 Covers information on an individual's personal status, intimate affairs, econcmic position and vocational qualificationa. 3 Collection of personal data limited unlesa it is natural part of the normal operation of an enterprise. 4 Personal information collection is permissible if 1 t serves the purpose of a contractual relationship or there is a legitimate interest in (a bwain> storing it. 5 State laws may be enacted that for personal data maintained by the public sector ----.... __ -......... ,,/ If

PAGE 21

,.., ............ ---~--.-- ...... __ _._ ...... -. .... .,. ..... ""'. ......... _.... ... ---..... -1_... .. __ -- -. - / Applicability of Foreign Personal Data Protection Legislation to Employee Monitoring I ... .. :o .1 1 a ona ., r at on Nti 11 il i f I Type of u 15 ,~ r 1 0 monitoring t J 8 ... 1 =' C: ... ! I ,g ... I a .-4 ... ... 3 Gt !c! ,t 8 ... c! u en 0 3 .. .... M '"'4 z en Employee computer-uaap monitoring (by IDa, terminal.a yl u2 3 yl and pusvorda) y y y y y Y. y y y Telephone-call yl yl accounting y y y y y u u y y y Work meuurement y y y y y yl y y y yl y Y Yes u uncertain 1 Personal data covered by this law must be organized or filed so as to be :etrievable automatically uaing identifier that can be linked to a particular person. 2 Information must be related to a person's pdvate affairs, such as financial situation. 3 An official translation (Olapter I, para 2) state that it is an infringement of pri vac:y to: a) spy on or trail a person in a manner likely to haru him, or any other harusment, and b) "listen in.

PAGE 22

Olla ........ llecoalaa Wodll-Wlde Since 1970, national and provisional IIMfflllllllU of 12 countries of Europe. AUIUllia. Canada. Israel. New Zee1end and the United S111es. have adopted laws to provide lepl protection to individuals. and in some cues lepl entilies, owr the collection, proceuina. use and diueminadon of their personal _. 1bil section reviews deYelop-11111111 in countries aacl in such interna tional OflllUZllM)III die Council of Europe, die OECD, and UN Commission on H11111111 Ripu. In the ttna TDR issue adl yell' we provide ID updaa and fonclll of ..... he dewlopments in thil field around die world. (See Table) A commission of the Brazilian conpas is preparina a personal dlla privacy biD: the ,omnment or Colombia intends to submil da pnxection lepslation soon after makiq inquiries with European da authorities; and Hon1 Kona imencls to place lepl ripts over records concerniaa individuals before the Bridsh Colony mens to the People's Republic of China ia 1997. These are examples of the heretofore "computer prival:y'' phenomenon in itialed by OECD countries and Israel that have taken root in dtMlopina. ntwly indusailliziq and also Eastern European nations. While arandna citizens power to limit the collection and use of their personal details well a acceu to such records is a cbarlcterisdc of democratic nalions, seen a ,uarant provided by the UN Conwntion OD HWIUID Riabts. cenain E8lllm European and other countries haw or are considerina leaislation dealina widl the handlin1 of com puterized personal infoffllllion. Hun pry has adopted a dala protection law for the conrldentiality and security of personal infonnadon. Thia Slllute 1111 similarida to Western European atutes. except thll access to aomnmenc held personal dlla is not aranced. The Soviet Union, in fact, adopted a law in the mid-1970s to restrict access and con ftdentiality of computerized electoral records. In Wesaem Europe several coun-tries have prepared draft dala protec tries have dala protection biDs in ad-tion bills but because of long ~onsultavanced UIIS of preparmion and their tion periods or c:hanaes in 10\emment. adoprion may be rorecast in 1986. These have noc adopted lqislation. These in are F"lllland, the Netherlands, Spain and elude Belaium, Ireland, Italy, PonupL Spain hll milled the Council SwiUerlancl and Yuaoslavia. A draft of Europe Olla Ptoteclion Convention bil his been under review by the and due to its comina into ron:e on Oc-Japanese prime minister's office for tober I, 198$, is expected to expedite some time. PISlllf of a law in 1986. Other coun-5111111 of Olla Pto&ecllN/Pmacy L1alrl :loll Jau-, 1916 a.., Australia Austria (Rev) Belaiwn Brazil Canada Colombia Denmark (Rev) Finland France Oennaay (Rev) Oma Hons 1Con1 Hunpry lc:ellnd (Rev) Ireland Israel Italy Japan Lwcembouq Netherlands New Zealand Norway (Rev) Pomapl Spain Sweden Swiuerlaad Turkey UK us Yuaoslavia Code: L Law Adopted N ....... (P) CL p p L p L p L L(P) L L L p L CP L L CP CP L (P) L LP I Government report/bill prepared C Constitutional provision P Parliament (Conpess) Consideraiion (P) Draft leplacion prepared RP Oovemment repon in preparalion Rev Law bein1 revised Soura: Transnational Data Rpon s. .......... L L L L L Reports R R R R RP RP RP R R R R R R R RP R -R RP Ja,tu,ry f rlllSlllbcNI Data Md Communcations Report 29 .. ./

PAGE 23

.......... :-. _.....___ .. "' ......... ...._.. .. ,. .. -~ , ; J ., ., ') ',.-:----. l ;'--'-' r..\. :.~) \~ I J l .I j ......... -..... &- ........ ~.:-.......... -.... ~- .;__. .......... ~ --.... PART II EUROPEAN NATIONS: FEDERAL REPUBLIC OF GERMANY AND NORWAY, AND BRIEFER TREATMENT OF FRANCE, AUSTRIA, BELGIUM AND SWITZERLAND ... . .....

PAGE 24

. FEDERAL REPUBLIC OF GERMANY(FRG) Labor relations in the Federal Republic of Germany (FRG) have a strong legal component, as is typical for German society as a whole. There is even a complete separate branch of the judiciary for labor law. It is characterized by the participation of appointees of workers' and employers' organizations on the bench in lowr courts; the ~ederal Suprw Labor Court (Bundesarbeitsgericht, or BAG) has a majority of professional judges. This court system deals with: l individual workers' rights (wage matters being by far the majority of cases); 2 probla arising from collective bargaining agreements (occasionally involving ..-..... -; settlaent of strikes) ; :~ "1 ,, 3 the Works Council system. Th Works Council is the focus of a statutory system of employee participation in decision making at the company level. In public administration there is a PersoMel Council with a somewhat comparable position. Participation.does not .~way mean full deciaion sharing but cowr a range froa being informed to con aaltation anc! co-detezmination, the preciN scope of .rhich has been subject to frequent litigation. One of the utters within this kind of litigation has been electronic monitoring of employeea. In c:o-detemination the works Council may .conclude a formal &CJZ'eaent with the aployer. If no agreent is reached the matter aay be referred to an Arbitration Conn1asion for diapoaition. The FRG traditionally has strong and cooperative labor-management relations. Union influence in day-to-day matters is said to be considerable, but the trade unions there share in the difficulties of Western Europe as a whole in these times of rapid technological change, mass unemployment, and not always favorable political environment. Still, social peace in West Germany is a strongly felt value and days loat from strikes are said to be among the lowest-in Western Europe. Tenaions have risen recently, however, because of government plans to change strike laws. A majority of the trade unions is federated in the Deutsche Gewerkschafts Bund (0GB) with a total of 7 .8 million members. The single most --, important union is the steelworkers' union IG Me tall with 2. 5 million members, ~proudly called "the biggest in the free world". Union membership in this sector traditionally is very high, up to 70 percent. Average union membership in 1980 .._ .... ,...._.C ..II I -II ,.._.. ._.. IIIIIIIIIQ,...._IIRI' ..,..._ -

PAGE 25

.... .. .,_ ___ ..,.----.. ......... .,,, .. Jt.tl .. ,'l stood at 42.6 percent of the work force but ha dropped to about a third. _outside DGS, a union of higher-qualified employ, Deutsche An9e1telten .. ,t Gewerkschaft (DAG), has only half a million members but enjoys a growing ,;1 influence u DCB is losing some of its appeal, especially to young people. '!9rker surveillance-background Established forms of worker surveillance include time clocks, punchcard systems, multi-movement cameras, so-called produktograehs,and telephone monitoring. The u of polygraph tests in labor relations is frowned upon in the FRG, as it is .,} in the rest of Western Europe, but handwriting analyi, grapholoqical testinq 13 '...', .. of people applying for a jab is practised and hu been accepted by the BAG (provided the person concerned ha consented). Th standard questionnaire for job applicants in private industry must be approved by the Works Council, as must tandard practices and tests in job interviews. Psychological tetin9 of job candidate i not uncoaaaon, the BAG since 1964 requires that it not be done without good reason (such a special responibiliti that 90 with a job). Th right of employers to inquire about the health of .propectiva 911ployee ha baen tied by BAG (June 7, 1984, DB 1984, p 2706) to the extent and legitimacy of their interest, conidering the particular labor relationship at take. Many companies have their own medical departments that advise manageMnt in health aspect of working conditions and also may counsel individual workers at their request. Jaployers are allowed to ask job ekr about their criminal history and may require the to produce an official statement from the central criminal records office. It baa repeatedly been held, however, that questions of this kind have u. be trictly related to the nature of the job (sexual of fences in the case of a teacher, road-safety violations in the ca of a truck driver) and may not become a fishing expedition. The legal ba1is of unageMnt collecting data on employees uually ha been sought in the general frawork of the labor contract, such as the doctrine of subordination (the duty ~f employ to accept leadership of superiors) and the right of a prospective employer to ask questions. The Federal Data Protection Act of 1977 (8undesdatenschutz9esetz.orFDPA) do not cover the collection of personal data and centers on storage, communication, modification and erasure of personal data. The BAG has conistently held, however, that the

PAGE 26

............ ,.,... .._._,... ..... ..;.... ..... __ ......... ._.. ,. __ ~----O. .... -... --.. right of an employer to ask questions is restricted by the general constitutional right of protection of the personality (paras 1(1) and 2(1) of the Federal Constitution. This guarantees every German the right to human dignity. Accordingly, only those questions are penaissible that relate to the workplace er the nature of the job. What might be called the purpose principle also is an element of the FDPA, which moreover requires a broadly worded "legitimate interest" on the part of the employer in order to automatically process personal information. It has been argued that the landmark decision of the Federal Constitutional Court in the 1983 census case, proclaiming a fundamental "right of informational self-determination," makes it necessary for the government to provide more specific and statutory 1 grounds for intrusion on the privacy of workers by their employers. Certain types of monitoring, of course, are prescribed by law: truck drivers are required to have a kind of -black box" in their cabs for purposes of road safety. The FDPA requires the establishment of access controls at computer centers. It remains an unsettled legal issue as to whether these kinds of data may be used by employers for their own purposes. Personnel In.formation Systems (PIS) Increasing use of automated data processing in personnel management has provoked growing labor concerns. The focus so far has been mainly the most widely used software package called Personnel Accounting and Information System (PAISY). It ha been used by big employers such as the Opel Motor works, the German federal bank and the Bosch and AEG industries of electronic appliances. Use reportedly is rapidly spreading to hundreds of small forms. PAISY basically is a system for managing wages and salary records. It can be expanded into a more comprehensive personnel information system (PAISY-INFO) but direct linkage to production management or control systems is not envisaged, 2 according to the supplier. Nevertheless, the specter has been raised that personnel information systems will reduce the employee to a "person of glass", as ran the headline on a story in the widely readweekly Der Spiegel (1982, No 29) tha~ ha become proverbial. The magazine told how Volkswagen reduced its work force by computing a list of .... . ./ ,,,,_,/

PAGE 27

1-~-------............. .... --.. .--...... -. -. ............ i I employees that were eligible for civil-defense service and turned the list over to the authorities. The military obligingly called into service quite a number of delinquent employees, easing the company's difficulties. Another firm in need of trimming its staff conducted an electronic search of its personnel files to identify employees that really were dependent upon company buses to come to work. Th firm then closed down its bus service citing only reason~ o, economy, this __ ,. obliged many women ployees to resign their jobs, and the employer did not have to fire them. The story also pointed out an irony: PAISY is in use by major trade unions for their own administration, including the civil-service union OTV that has spoken out strongly against PIS. Unions also ~ave a vested interest in effective informatlon systems of employers, if only to be able to monitor their members' contributions, that are set at percentages of earnings. Flexibility of working conditions and work sharing-both major demands of modern unions --also call for detailed registering of workers' data, apart from the ability to identify groups of radicals and troublemakers. Still, the German trade unions are on record strongly against PIS. After OTV had 3 spoken out, the full DG8 Congress in May 1982 registered its objections. The main concern is that the systems will be used to produce personality profiles" of employees. Accordingly, a major atrategy goal is to prevent linkages of data. The Labor Tribunal at Oberhausen, a lower court, in 1982 handed down an award in a case brought by the Works Council of Thyasen Fowidry against the company. 4 This cue is indicative of how labor courts interpret the scope of Works Council powers. The isaue was one of the use of PAISY. The parties accepted the injunction to con clude an interim agree~ent stipulating that: -th company would undertake to submit to the Works Councl 1 within 15 days a draft company agreement governing the introduction of PAISY; -fin rules for inputting, atoring, deleting, changing and transmitting data would be established; - protocol would be established for hardware control and access authorization; -stored data would not be used for purposes other than those defined, without t.he agreement and prior information of the Works ~ouncll. Th management also a9r1ed to integrate appropriate monitoring systems,

PAGE 28

---,.. ................... :,11_ ......... .w-........ .._ ................ I._ -~-......... ...,;_ ... ,, ........ ,....._ :_ -: I ...... ,,_ ',,,.~ *.; .... .,...._ ,. - . -~ --.... ...... -any extension of the use of PAISY beyond the purposes defined in the award would be submitted to co-determination proceedings. Aa a result a company agreement was concluded covering the following points: Scopa The agreement applied to the use of the PAISY computer system for computing Thyssen works pensions. Technical utilization The program will be used exclusively on the dual computer of the Thyssen EDP Center. R!!:!. All data to be processed by PAISY will be catalogued according to defined data fields. Usa of data Data may be used only for computing works pensions, all data output will be recorded. No other retrieval, processing or output shall be permitted. . f. Exceptions shall require authorization by the Works Council, subject to requirements -~ of legialation, collective or company agreements. There is to be no linkage between __ PAISY _data and those of other EDP syst ... except for creating data support for bank to handle money transfers and for Thyssen to determine pension reserve allocations. Data correction Individuals concerned may request the correction or completion of incorrect or incomplete data. cases of doubt shall be settled by the competent pension committee The collection and linkage of many personal details to build an o~erall profile of individuals, referred to as "personality profiling", also is an anathema to data protection officials at the federal and state levels. In March 1984 the data CClllld.ionen frc:11 the 11 states, and federal commissioner Dr Reinhold Baumann, issued a statement describing data linkage for the purpose of creating personal 5 census profile u inadmissible for reasons of principle. The 1983jcase served as the bui~ for this position. lt ha been pointed out by the Commissioner for the State of Hessen, Professor Spiro Simitia, that personal information systems serve as "transit stations" for building dosaiers on employees. 6 It has been estimated that some 75 public agencies /ranging ftaa social 1,ecurity to local authorities, on the basis of 232 laws and .. (regulation~ require. up to 2 39 data elements per employee. Employers are recndred under 126 different regulations to keep up to.214 t1pes of data concerning each

PAGE 29

.' . ,"' ....... ...:. .. ----...-.:..a. ...... ., .. _.,; ................... .. .._, ... : .......... ,J'. .. ; ........ ..... ::... ........... 1.-.. --.. ....... . ..;. ___ .. ,_. ___ .. .... ............ -. ...,. ... 7 .-ployee. Th data may well be used for internal purposes, Simitis claims, in applications condemned as a violation of the purpose principle by the Conference of -Data Protection Comisioners. l For Federal C:C-issioner Baumann a special probl is the proliferation of personal ' .. : i computers in human-resources management. In his 1984 annual report he describes an investigation at the federal railway system. He studied three decentralized systems,including a pilot project on the assignment of tasks in electrotechnical rvices which provides complete surveys of work performance and non-attendance of workr by using 54 PCs. Dr Bawunn said special safeguards are needed, such as strict control of the personal details that can be retrieved by any canpany manager, ancryptography and internal authorization to use both hardand software.8 At the Opel-QI works at: R.adefsheim, 25,000 employees in 198S aiped a petition against: th PAIS! Yt, especially regarding linkage of data and buildina of personal profiles. flt Worka Council for two years had fought: to obtain what vu termed a "maxilllull of co-detendnatiou," but a labor leader warned that the llude/sheim-syst 11 only part of an "international monitorina of productivity and performance by Opel-Qt," which involve controls on a world-wide basis. A specific concern is the 111 of electronic aystto chan1 work rupoaibilitiu of highly paid maineers and acientista by storing their apertice in data bau, which accordin1 to ltlaua Franz, a union official in Opel-GM, amounts to "expropriation."

PAGE 30

.. .---. ......... -.... ,,.--..~.: ... ___.:..""-: ___ .......... .. _..:,._.., ___ ... : .. . .......... ,.---,,._ ......... -........... -w-.-..... ---...... .,,_ '",:. .-. .... .. ...... ..-tl ,,, ..... ---~_ ... _____ .. _._,___ ___ ,:. YOO Monitoring Both the West German Trade Union Federation (0GB) and individual unions such as IG Metall have been active in the international trade union movement and within FIET (the white collar international union) to set ergonomic and work-environment standards for use of VDUs. A prohibition of "machine monitoring" or "electronic monitoring" of individual workers is one of the model standards included in this programme. (See our later section on international trade union activities.) In 1979-1980, West German unions opened a campaign to write "model codes" for VDU work into both industry-wide and plant-level apreements. A study of about 50 such a~reements prepared by WSI, the research arm of the 0GB, covering agreements concluded between 1978 and 1981, found that work monitorin~ clauses were often included. A management publication analyzing these clauses concluded: As regards work performance on VDUs, West German unions have expressed particular concern about the possible use of such equipment to record and measure the output of individual workers as a means of controllfn~ performance levels. The unions have also been concerned about the increased "social isolation" of workers usin~ VDUs for long periods of time. These two concerns have been taken up by union members on works councils with the result that plant-level agreements generally contain provisions precluding the use of VDU equipment by the employer to measure individual workers' performance levels and providing for performance targets to be set so as to allow time for necessary personal breaks and for contacts with other employees in the same department or elsewhere in the plant. A major force in the campai~n to secure such anti-monitoring clauses was the inclusion by IG Metall of that provision in its 1980 Model Agreement on use of VDUs. In Article 6, Working Conditions and Working Time. the Model A~reement states: "It s~all not be .,

PAGE 31

, :~ ., .. . .. r""'\ ,~.,/ ; ' '.8 -----............... _~-. -. .. -....,r...,:_,. _____ - ......... .,;.,---...;_. permitted to monitor the performance of workers, for the purposes of measurement, control. or comparison, by use of the installed LVDJl.7 equipment."* "West Germany: Workplace Agreements on New Technolo~y," Euro9e1n Industrial Relations Review, No. 106, November, 1982, pp. -9.

PAGE 32

---~~ ... ..,.,~--... ,...J .......... ~,....:....~---............"~--------. .:..,.,. .......... ---.... ......... -... .. _,_ .. ~.... -................. _. Co-determination of technical monitoring systems A significant feature of the FRG situation is the role of the Works Council. 'Dier 1 no direct statutozy buia for ita involvement with the introduction of PIS u such, although there are interesting s.!.-1 '_.!.n. The Works Council, for example, hu to be consulted in matters of "internal order" in an enterprise, and it has competence to review the questions asked of workers for job placement. It also hu a general obligation to follow the implementation of laws that cover working conditions, but it tooll. court action to etablish that the FDPA comes within this categor:y.9 10 At many enterprises PIS have bHn made subject to a txade-union agreement. But Professor Guenther Ortmann of Oldanburg University concluded from a poll that four out of ten companies felt consultation with the Works Council in 11 these matters to be "superfluoua. Involvement of the Works Council hu received a substantial boost by decisions on electronic surveillance of the Supr-Labor Court in 1984-19~5. At stake wu the most specific statutory ground for the Works Council in these matters in the Act on the Works Constitution (para 87). It state in part: The Works Council will, if no statutory rules or a collective bargaining aqreent exist, co-detezmine: .. 'l'he introduction and uae of technical installations that are intended to monitor conduct or performance of employ" 'l'hi high-court ruling extends th power of Worka Councils' co-determination with managent plans and actions into the introduction and use of computers and autcaation equipment. :, .-. I .. ......_ 31

PAGE 33

. i 'i 1 i -~ ~ ,, ., ,,--,,_ ., I -;r:, .. .J .. .,;,,,.,,.,,;..-.-.:.~-..-................. .-. .. ..... ...:..~~w ... r.. ... ...._.: . .._,,: ....... ,_ ......... .... . ... -. .... ----............ rroa this uy be concluded that various mod of surveillance are outside the scope of co-determination. In a sch-1 Monitoring of aaploye of machines by a person by an inatallation Subject to co-determination When the Works Council Act waa revised in 1972 it that parliament did not cmpletely for the kind of rapid technological change that would follow. "This act wu not written for computer terminals, Professor Horst Ehmann of Trier 12 University has protested. Th BAG emphatically does not agree. In its so-called coaputer-teminal ca of December 6, 1983 it decided that any 1ysta is subject to co-determination if it collects data on conduct and performance of individual eaployees. Whether the uaployer actually evaluates the data used ia not relevant, only that the syatem may produce them. The BAG left open whether the technical installation should cover the complete monitoring process or suffice that it apply only to part of the processing. The latter queation led to the precedentHttincJ Rank Xerbl_ case, BAG, September 14, 1984, DI 1984, p 2513. 'l'he Works Council of Rank Xerox had filed a complaint agaimt a new reporting ayat-for ita 2,000 repaiJ:Mn. They had to fill in a form with 63 details on utters such u the number of spare parts uaed, time spent on the job, nature of the failure (after how uny copies does a machine haw probl> and the personal identifying n\lllber of the repairman. Th reports were fed into a computer and produced so-called Service Performance Activity Mports (SPAM) that were used to build call profiles. Th Works Council termed it an almost perfect possibility for surveillance of conduct and perf,,rmance" and claimed co-determination. The coapany refused, arguing that the sys~ only served better lnternational supplying of pare parts. Simple processing of written reports anyway does not constitute a aonitoring system in tenas of the law.

PAGE 34

.,.~~~t .......... .& .... ;.,,.,,:.,.,.:.:.-..:...:.:.:.. ::.a:......._.u_~ ......... ____ ... -_ ---~ ..... ,,-.. ,--.............. :. -.... -. .. -.. -. ----. ,,_ . _. .... "-_ Basing itself on the Census Decision and quoting the "well-known dangers of modem data-proca~sing technology for privacy," if only the "loss of context" and the danger of reducing the employee to an "abjc:t", th BAG upheld the complaint. In two later daciaions it further bolstered co-determination rights on electronic surveillance. On ca (BAG, April 23, 1985, Du Betrieb 1985, p 1897) involved a word-processing system i,n a publishing house that already was th subject of an agreent between Works Council and managemnt. The company wanted to order VDT workers to file their names. In the so-called "header" (a data inventory) these could be combined with an indication of the processed texts. Th employer said the latter could cover anything from a few syllabl to part of an article without specifying. Only by adding other data could the performance of individual workers be effectivly judged. The company stated it did not have.the software to do so. Still, the BAG decided the system chang was subject to co-determination, even if it did not fully use the monitored data. Another case (BAG, April 23, 1985, DB 1985, p 1898) involved eight technical testing stations in northern Germany. Th experts and tasting ptsonnel in their employment fill fonas, with their personal identifying number which is machin readable. A computer prograa then ~roe the data. Although this may not produce specific and final results on employH performance, the programmed processing of teat data on the baai of an individual identifier does constitute "monitoring" in the sense of th Act on the Worn Constitution of 1972, the court concluded. While these decision undoubtedly made the position of the Works Council "more effective, as the federal government has co ... nted, this does not mean that 13 eaploy representatives are in a position to block workers' surveillance. If the Works Council refuses an agrnt, the cue is decided by an Arbitration COlllaission. This comission is obliged to balance the interests of the employer, which in a competitive environment Y legitimately insist on monitoring workers' efficiency, to th rights of personality of individual employees. Professor Ehmann, who has chaired such a collllisaion, indicates that criteria might be: advance warning before the introduction of the system, stating ita purpose and scope, the principle audiatur et altera ears (including the right of workers to have individual circumatances-family, illness-taken into account) and time limits to the storage of data. An early warning against automated performance controls for public service was sounded by the first Federal Data Protection c0111111issioner, Dr Hans-Ptr Bull, in ... -\.~

PAGE 35

1 '-.. :, ., .. i,--. ,. l i 1 .:., \ .. l -:I .. l 'i ... -~----....................... ~..: ............. .. .,,. ,( .. ....... -~---~ ....... -~.: .... ..,,.,_..~ ......... ,---..... -.. .......... ------~-..-....... ,_ ... ._._ 14 hi 1981 annual report. He reported a ca of programmers who develop software on cQ11Putar terminals. A syste of automated monitoring had been put into effect to compute development coats. But it also helped to form an impression of the perfonaanc of individual progrU1Mrs. Th Collllisaioner thought it "problematical" to ue data in auch a way for purpoaes other than intended. Bull referred to another example in a book he wrote after leaving office. Terminals were monitored to compute the efficiency of the system, such as the number of peraoMel needed, and to provide a safeguard against possible liability claims. After a great effort, Bull said, he wu able to convince the agency concerned that efficiency statistics should and could be anonymous while data on liability should be reatricted to a alll&ll circle of senior officials.15 Bull's successor, ur. Baumann has repeated the objections against automated performance controls.16 Telephone monitoring With regard to telephone monitoring in the private sector, there have been conflict ing decisiona on the question of whether the telephone numbers called by workers Y be recorded. A lower labor court ruled against this practice (AG Hamburg, October 10, 1984) while a superior labor court accepted it (LAG ouesseldorf, April 30, 1984).17 In public administration this practice has repeatedly been challenged by data protection cOlllllisaioners. Th federal comisaioner has made a distinction between official calls and private calls by civil servants fr011 their place of work. He spoke out against registering telephone numbers called for private purposes, and counaeled utmost restraint in recording official calls. Linkage of telephone nuabers with other employ data should be prohibited; all monitoring data should be eraaed a soon u posaible.18 Th federal governmant, however, has refused to 19 teminate the practice. Particularly problautical,in the opinion of the federal cOlllllissioner, are calls by worker representatives (or other people in sensitive positions, such as counseling, Mdical services, etc.). To protect confidentiality, number called by them should not be monitored. In 1984 the federal cOllllisaioner reported that in one agency, on the basis of an unwritten understanding, calls by the Personnel Council are chaMeled through a special

PAGE 36

....... ..... ..... ,............., ........ _., ..... -----------........................... ~--... ........... -conduit at th private branch exchange so that numbers called are not rcorded . Tha coiioner exprd th hop that this would be the start of welcome developMnt elsewhere. Heasn coaaissionr Simitis also hu held that extenive recording of nwnbars calld by.civil rvanta is inadllisible". "Proa the point of viw of the . citizen, he noted, "it is hardly understandable why every call he receives from an official will entail, purely for internal-control reasons of the agency, storage of hi own telephone number. Simitis wamed against the possible result of of creating "telephone profile" of both citizna and civil servants. 'l'he Hessen stat government did not wish to stop th practica of rcording numbers, but some local administrations 0hava ~ccepted Simitis' rac0111Mndationa.2O Legislative situation Coallisioner Simi.tis hu hailed the Rank Xerox decision as a basis for bringing all personnel infomation aysteu within th field of application of statutory co detanu.n&tion. Any PIS, after all, is a "potntial aunillance tool that may ba 21 activated at.any moment. Other observers are not so sanguine and have criticized the decision u judicial uaurpation.22 In Nessen a formal change of the co-dete~nation law waa needed to bring about the introduction, uae and extension of PIS to public administration within the scope of c:o-deterat.nation in the civil service. Other stat have followed suit, if only for 23 the public sector. c:: In the private sctor changes are in proapect, not becauae of an illllinent extension of co-detemination righta but becaua the federal government has fonaally comaaitted itself to introduce legialation for the protection of _employ data. In a atatement of Dac:Ulbe~ 19, 1985 the Federal Secretary for Labor ~d Social Affairs confirmed an arlier ruaark to a parliamentary committee that "statutory rules for the protection of employ data are a necessityR and that the federal government will .produce a bil~ in the next legilative priod.24 'l'he fral government, it has been offi"cially reported, "fully rec09niaea that the fund-ntal right of informational elf-determination, set forth in the Census __,/ i.,.._./

PAGE 37

:i J ,,-... \ .. _,.,. ............ 1....... .. ----........ .. .... Decision, not or.ly affect the public sector but also civil law, such as laborrelationa." Th Minister warned, however, that the sensitivity of the matter requir a very careful conception and de1ign of the legislation. Clashes are poible with other fundamental right, to name only one complication. There also are poli~ical difficultie. Th oppoition Social Democrat have introduced a bill of their own that would extend co-determination righta to personnel information aystin private enterprise and mandate appointment of the data protection officer that i called for in the FDPA. The government has not supported this legislation, to say the la~t, but announced it would study the matter. 'fh national employer' federation 1 fundUl8ntally opposed to any new legislation in thia field. Th trade union have welcOMd it. ~ federal coaaissioner, speaking on behalf of the Conference of Data Protection Authorities, strongly favored the legislation. He urged special attention to the following points: ---------------'--/ 1 Ground for atorage, use, change and counication of employee data should be more restricted than the egiti111&te interest of the employer that the FDPA now~ provid 2 "Personal profiles", the linkage of extensive details about individuals, should be banned. 3 Ace controls under the FDPA should not be uaed a conduct and performance controls. 4 soft data, such a judgments on employ, should only be procesaed autoutically under strong restriction. 5 Mldical and paychological data should be processed only in a very protected environaent. 6 'l'he existing right of ace to ploy fil should be strengthened, in the rl of particular by allowing11nrormation identifying uaers of the data. 7 CO-determination on the planning and introduction of automatic processing of eaployee data should unequivocably be guaranteed. JI,

PAGE 38

" .. ...... . .:. ; -.:.... ----~... .-........ _._ ... :.. __ ...,, ..... .._.._. ..... .. : .., __ It is somewhat ironic that neither this list nor the federal gr>vernment's state ment acldresses monitoring of employees as such. Unions are increasingly worried just about the upect of worker surveillance alone. Witness the headline of a story in the textile workers union magazine of November 1984: Kaine Video-Spiele mit Arbeitnehmer-"No Video Games with Workers". FRG Notes 1 The Censua Decision, BVerfG, December 15, 1983 (published i.a. in New Legal Weekly, 1984, p 419) set forth three principles: Zwec::Jcbindung (puxpose principle) Nomklarheit (transparency of nomaa) and Verhaeltnismaessigkeit (proportionality). It generally has been accepted that these principles necessitate specific legal grounda far the processing of personal data. 2 Aa quoted in Clau Bennin9 Schapper and Gabriel Waniorek: on co-Determination of the Works Council on Introduction and U of Personal Infoi:mation Systems, accorclinq. to para 87 (1) (6) of the works Conatitution Act 1985, No 8, p 246. 3 Data Protection Adviser, 1982, No 10. 4 Cl)erhauaer Labor Tribunal: award of November 3, 1982, 3 pp (in Geman). Thy Girei AG, Ccmpany Aqr ... nt on ti. PAISY System (Mualheim on the Ruhr), Decaber 10, 1982, 4 pp. SN alao the IL0 publication New Technologies: Their Impact on Employment. and the Workinq Environment, Geneva, 1985, p 109. 5 Data Protection Adviser, 1984, No 6. 'lh Federal Data Protection C01111Dissioner 9calla for a ccmplet.e ban on his second Annual Raport of January 1, 1980, Bfd 2 and hu repeated this in his most recent report, issued in July 1986, Bfd 8 Taetigkeitsbed:cht S. 2. 4. 6 Spiroa Simi tis Legal Rules for Personal Information Systems, Olances and Lim.its, Wiesbaden, August 1984.

PAGE 39

. ~-----... ~,.. .~ ........... -.&--.... .. ,. ... --""'-----: ... ;..~~--,;.,:---. ....... ~--_ _. ...... ~.,...~.....:..... ............. ~--"--.... _____ _.. ___ .. ,..., ....... -. -~ -~ ............ j . 1 j .i l r. . \ ., l .. I .; 1 '-.~.,-:~. ';~ A 7 Data Protection Adviser, 1983, No 11 8 Annual Raport of 1985 9 &w-Qlriatoph Matthe Participation of the Works Council in Measures for the Proceaainq of Data on Panonnel and OVerview, Law and Data Processing 1985, No 1-2. Spiro SJ.mitis Co-determination u a Regulatory Element in a Techno logical Control of Employee, New Legal Weelcly 1985, No 8. 10 Simitia, oP cit No 6. 11 Weekley newspaper, lheiniache Merlcur/0\rist und Welt, No 46, November 16, 1984. 12 Borst Ehmann "Technical Monitoring of Employees and Data Security" in 'l'astimonial Book for Bilder and Stumpf (Munich, 1983). 13 Stefan Walz "Data Protection and Co-determination, a Reform Debate on Personnel Information Sy~tema", Labor. an4 Law, Auguat 1985, No 8. See also Matthes op cit No 9. 14 Bfd 3 Third Annual Report on the year 1980 (1.1.1981) 3.5.S.4. 15 aw-Peter Bull Data Protection or Pear. of the Computer (Munich, 1984), p 162. 16 Bfd a Bigth Annual Report on th year 1985 (1.1.1986) s.2.2. 17 Bans a Wohl._gemuth "Selected Prabl ... of EmployN Data Protection", Labor and Law, Au.;uat 1985, No 8 -18 Bfd 3 'ftlird Annual a.port on the year 1980 (1.1.1981) 3.5.S.2, and Bfd 7 Saventb Annual a.port on the year 1984 (1.1.1985) 7. 2. 3. 19 Bfd 6 Sixth Annual Raport on th year 1983 (1.1.1984) 5.4.3. 20 Data Protection Colllllisaioner for the State of Beaaan, Eleventh Annual Report cm the year 1982 (31.12.1982) 2.2.2.

PAGE 40

I ,; -~ .. j I '. l , -: ., -~ I l I 'J i .' .... . . ...... .. ... ..:.: ........... ~~.:..-............. .... ..... ,.,,, .... :. ..... _._...,..,,_~---,, .,.....,,_ 21 Spiros Simiti1, op cit No 6. 22 Reader's Letter, oatensehutz-Berater, 1985, No 4. 23 See Walz, op cit No 13. 24 German Federal Parliament, Drueksaehe 10/4594. 25 Bfd 8 Taetigkeitsberieht (1.1.1986) 5.2.4.

PAGE 41

. '" I I ...... __ _._./ .,.. . w.-,,,,.., __ .._, ____ ...... ...,.,...~..,;.,:.-... .,...___.. ...,..,,,,, ., ... .,,.~.---.. -~v.,. EXAMPLE OF A WEST-GERMAN UNION-MANAGEMENT EMPLOYEE SURVEILLANCE AGREEMENT In 1984 the Commerzbank AG of Frankfurt and the Union for Commerce, Banks and Insurance (HBV) entered into an agreement on the conduct and limits to electronic monitoring of bank employees. It i representative of the provisions that trade uniou in the Federal Republic of Germany seek to negotiate with eq,loyers. Th~ following ls hereby a9raad upon_wlth respect ta the DOsslblllt~ that EDP provides or supervlslng thr. behaviour and Prrormance or employees: A. Data atarag, and tha use-or pro~rams .. 1. The perrarmance o~ behaviour or emolay11s shall not ba effected by means or ex!stin9 ar planned EDP systems. Data end pragrnms which serve ta verlry perrormanc~.or behaviour shall ba erased: 2. O.a.lr such data an employees shell be stored as ls absolut ly essantlal for work planning. The Bank shall includ all such data ln an Annex l ta this Agreement, stat1no th, use to which thay will be put a"d th reason why lher are necessary. The Annex shall also make mention or sat~riods or vents erter which the date 1s to ba rsd. Data shall, rur~hrmare, be examln~d at yearly intervals ta sea whethr.r thay are stlll reauJred or whether they can be erased. 3. A gua~antae shall be glv~n that personal data an th~ emp~oyaes whlch are a by-pradu~t or the warkin1 r.racess or which can be daduceu trum work process detR (Auch ~s data rran the use ar 1dent1tr da~ument reader,, 1hart ~ad1s, lag data, usar stntlstlcs, EDP ut111zatlan stRtJstlcs, etc.) will not be such can be used ar lnterprated as a check an personnel behaviour or parrormance. 4. Parsonel data an employees shall not bt c~upltd with data such as ls rer1rrad to 1n ,, l above. Personal data an employ may ba disclosed only ln the casas pr1scrlbad by Law and, 1n suchcases, th, r1c1p11nt, the reason rar thn disclosure and the date or disclosure shall ba stalad ln detail. CBR shall be lnrarmed ar each lngle or lrregulftr dlsclasure ar data. .....,_,_ .. ----

PAGE 42

FIET Newsletter May 1986 FRC: HBV'S MODEL SETTLEMENT ON PERSONNEL DATA SYSTEMS Following the intervention of the Conciliation Board, a model settlement has been reached between the Cerman insurance company Deutscher Herold and FIET affiliate HBV concerning the operation of the personnel data collection and processing system PAISV. Initial attempts to reach an agreement had been blocked by the refusal of the company to recog niH the union's cocletermlnation rights in this field, which was the subject of a Fl ET Conference in October 1985. The agreement provides that personnel Information can only be collected by the company for limited and specified purposes, such as salary accounting, rent payments and insurance premiums. Statistics drawn from this information can then be used only if they are aggregated and unattributable to individual employees. All operations carried out by the system must be recorded, and the works council has the right to call in lawyers or data expe~ts to examine all aspects of the working of the system. ~ithout informing the company, and at the company's expense. In a~d1t1on. the. system cannot be extended without the agreement of the works council, or through a further decision of the Conciliation Board. The importance which employees attribute to this issue may be judged from the fact that a meeting to discuss the terms of the agreement led directly to ten new members of the workforce joining the HBV. I --~ .. .-/ '' YI .... '.):.:.. -~ ;

PAGE 43

. ..... .~:..:.....-. r a. ~o:!> s. The-i!enk shall, ln Annex 2 to be dzawn up ta thl~ Agreoaent, mantlan end briefly describe th prooram which ls to be used tor the personalized pracesslng ar employee data. This program shall, when put an line end at le~st once yenr on a random basis, b checked far accuracy by a data protection atftca~ or neutral EOP spn~1Rllst. The GIA.shall receive~ copy ar the test report. Any addltlo" to Annex 2 ahall require thn approval or the aaR. No pro9r~ shall be sat up or run ta adjust Joh Dror1les, ta anRlysa dead time or compare perrormanc-.s. Excnptions shall be permitted only with th" ~9raement or CDR. a. Once only or 1rre~ular use or programs ta evaluate per~anel employee data (stRtlstlcs, meter readings, etc.) shall 11kew1s require the approval ar the CSR 1. The eoreemants an the usa or programs shall apply as npprnpr!ate ta the usa or Jnrormation langunges, dialoquo interrogation met~ods, etc. Recordl~g and verlf1cat1on 1. Jill d~ta runs relating tn individuals shall be recorOcrcl. A0 print-arr or tho record shall, an raQuest, be snt to the CSR. 2. Entitlement to access data rel~ting ta 1ndlvlduals shall b regulated by bath organisational and technical oragramalng mathods. Access entitlement shall b canferrtd dn a stageby-staqa basis and shall be kept ta an absolute lnlmum. The con ahall have 11st or all persons wha, .. at any qiven tim, have access entitlement. Unjustfr1od access or attamoted access shall be recorded end l~mdlat ly reported to the CBR and emolay shall be entitled to raport suspected or actual 1nfr1ngements to the GBR er th shop steward. l. Personnel measures besvd on lnfarmat1on obtained throu1h 1 culgabla breech or th 1qr1Rmant here reached, shell be fundamentally 1narrect1vn. 4. ~ech employee shall, once every J years, rec~lv COff~lel~ 11st or all data stared in the personnel datR bank anr relatln~ to hJ~self.

PAGE 44

..... ...... .. ". -., ....................... ,. ----".,,.,_._.,___ _,,.. -, ... ------. -----Should the employee object ta any data, tha Cam.-any shell 1mmad1ately effect the necessary corrections unl~s 1t can prov the accuracy or th data anrecard. Claim may t any t1meb brought requesting 1nfarmet1on except ln cases ar abuse ar entitlement. . The emplaye!' ahall be lnfarmed ar any data canurun.lcated ta third parties end shall be lnf armed or the en.title- mentor such oert1as to access that data end the use ta which they lntand to put it. The orr1ce or depnrt ~nt ta'whict1 the data 1s communicated ls also tab named. The only exception ta this rule shall be hulk date supplied ror statistical purpasec (1.e. not 1aent1-fy1ng en4 1ndlvldual) c. Tra.1.a1ng and Starr 1nrarmat1an.~ystam Ta.ensure that -me~bers or the GBR fully understand the rights end obllgatians created by this Agreement, they Y part1c1pate in EDP training cours1s which wlll praMld them with a suff1clency or the qual1f1cat1ons reQul Th c~_s_t or such courses shall be borne by the e,s,_ployer . 2. The aqreement or the CSR shall be required ln order ~hat the IPAS Personnel Information System.may be 1ntraducftd. Should the Parties be unable ta reach agreement, the canc111at1an baard shall, here too, decide. ......... .. -""\ .. . ;_.,'

PAGE 45

......... :. ..... ~..:..,.,\.lr'. Norway is traditionally a society characterized by the te.r:m "welfare state". After the second world war a long period of predominant social-democratic government ) emphasized the conditions of workers and employees. Fo.r:mer coalition composed of the Conservative Party, Olristian Democrats and small parties was not in disagreei mnt over the major objectives of social policy. Also, this coalition supported l /-. --~ l I i l the goals of a welfare s~ata. This is expected to be continued by the present Labor Party government. The Social Democratic rarty (Arbeiderpartiet) has a long tradition of cooperation with the national union (Landsorganisasjonen,or simply LO). Consequently, there has been a strong influence from the unions on government policy. this is also reflected in the national organizations of employers and employees. The employers are organized in a national organization (Norges arbeidsgiverforbund, or NAF). There is no obligation to be a member of this organization for an employer and there are other organizations of employers. But these are minor-in practice the NAF is the central organization of players with substantial power to direct th strategies to be followedin negotiations by its member organizations with the trade unions. The major exception is the gover11111ent, which is of course a major employer which negotiates separate agreements with organizations of the employees. Employees and workers ha"e traditionally been organized in LO, which 1a composed of number of trade-or industry-related unions. This is a very strong organization indeed, and most ployees will participate in their relevant union. LO has traditionally maintained a close relationship with the Social Democratic party, for instance through collective membership agreements. This political affiliation has recently become slightly more controversial and a separate national union, Yrkesorganisasjonenenes Sentralforbund, or YS. Som characterize ID as a bluecollar and YS as a white-collar organization-though there are numerous exceptions and this can be disputed. Relations between organizations of employers and employees are maintained on several levels. The national unions enter into general agreements on working conditions and wages. The national tradeor industry-related organizations of both employers and employees enter into more detailed agreements. And t;h individual employer will negotiate a local agreent with the local union. ,--

PAGE 46

;: ,j : ___ _,_........., ......... ..... -..... -~ ....... --... ______ .... These relations are generally characterized as cooperative in nature. There are few wildcat strikes or unauthorized industrial actions in Norway. The system of negotiations is verymuch an integrated part of the political system. Government will refrain from intervening in a legal conflict until vital social interests are at stake, but will often try to encouraR com111U11ication and negotiations between the parties to a conflict. The Act on Workers' Protection and the Working Environ ment of 1977 governs relations between employers and employees. The act contains principles setting limits to employer controls, standards for work environment, etc. The Directorate for Labor Inspection (DLI) is empowered to enforce the act. Worker surve111anc-p~e-h15h technology Surveillance would be defined as an action taken by an ployer which ln principle could be subject to actions by the local union or which might be referred to. the DLI Work environment is a general tena including physical and psychological elents. Surveillance consequently hu an impact on the occupational environment, and therefore comes within the authority the DLI and the local institutions. In companies employing more than SO ployees. a special occupational environment c0111111tte is to be established with equal represantation of ployer and employees, and reportingto the local branch of the DLI. In all companies with more than five employees a special ombudman also is n011inated a1110n1 the ployees with special responsibilities for their occupational environment. This structure is defined by the Employee Protection Act but has been developed over the past several decades. Many institutions and procedures have been introduced throuRh the general Rreements before being codified by parliamentary acts. therefore, there have been orRnizations like the DLI with administrative ruponslblllties to respond to surveillance issues before the introduction of advanced information technolo1y. Individual cases al surveillance have taken place, but these have not been formally reported. Polygraph tests definitely have not been in use. This is not due to a prohibition The but is because employers have never suggested using them. 11ntroductlon of polygraph tests at any time would have been met by a massive reaction from ployee organizations and vould not have been politically feasible. PsycholoRlcal tatin1 may have been ln use for some very-special-purpose Jobs, but then on th .. ..... -,

PAGE 47

-.) -; ,., # ~'-.;,,I ,j .. .. .. .. -... -... ,...... .. . :..,..Jr.,-. . "- .. fl, ... ----..,, ............... 3~1 basis of medical examination rather th4n acreening of actual or prospective ployees. Telephone monitoring for purposes other than debiting also would have been a violation of the general penal provisions on wiretapping. Awareness of surveillance rnay be said to have been rather low before the Introduction of advanced Information technology. Therefore, specific provisions to control any early actions cannot easily be identified. But the system of general labor agreement and government controls would have been adequate to handle any specific instance of excessive control measures-which would have been opposed by those enforcing established nonaa. For these reasons employers were discouraged from introducing surveillance methods. Consequently, none can be reported. In assessing this situation, it should be borne in mind that Norway is a small and extremely open society. A syst of personal identification numbers has been introduced, making identification and tracing of an individual rather efficient. Tax assessments are publicly available; access to other 1overnment files ls quite easy as well. therefore, it may be maintained that 1urveillance for screening purposes, identification of political affiliation, 1eneral personality profile, etc., may not be a need strongly felt by employers. Current Surveillance 1ituatioa Worker surveillance 1 currently requlated in sewral ways. Firstly, th general labor agrnt between LO and NAF of 1975, u amended (Section 6 No 7) provides for~ cliacuaions of intemal control auras-th nd for such measures, their introdllction and design. 'ftle general agre-nt refen to a supplemental agreent on internal control meuurea. This provide for supplying information to employees and their elected representatives who shall have a right: to comment on such proposed un (Section 3). They have to be clearly nec:eaaazy and not excessive with rupect to the actual requirements of the organization (Section 11). All employees or 9roup1 of employ must be equally treated with regard to any controls iut:itut:ed. The extent to which the control involve the storage or use of personal data, the period for storaa, the data-security urea and erasure routines also should b dlacusaecl and defined, according to the a1reement. Thi ls in reference to the

PAGE 48

! -:,, ... _._ ~'-- -.... - ... ,.. .......... _.---,,~: _-.-.~----............. .-... ... -~.-'/ t .--.... Data Protection Act of 1978, and subsidiary regulations. '1bere is an interesting intarrelationahip between the act and the labor agreements, as the regulation on ploy data syst_. (Sections 2-12) is explicitly referred to in this agreement. Th regulations specify 22 categories of personal data permitted in ployee systems, but make a general atmaion provided this is authorized either by an act of parliaent or gmeral agrem:ta between the organizations of ployers and ployeu. In addition to the agremts and the data protection legislation, the DLI has authority far as the occupational environment is concerned. Frequently. the Data Inspectorate which superviau the Data Protection Act, and the DLI each may have that authority to iDtervme. There are indication / the ployee representatives prefer to seek help fr011 the DLI, probably as this is traditionally the institution -most closely related to the situation of the aployees. There is some information on the regulation in local labor agreents on inclusion of personal data for control purposea. 1 A c01111on phrase in such agreents is the following (Borchgrevink 1985:37S): -~ ... _.,1 ''latablisbment and destruction of data syat-facilitating a detailed control and surveillance of the individual ployee in the person's working situation shall not take place without the cooperation of the organization of th ployau." A general agreent between the government and organizations of ployees regulates the categoriu of "no show" which are permitted-"illness", ''holiday", "leave" and other "no show" (which include military service, travel non-authorized leaves etc.) Union of Metal Workers initiative One cannot review the current Norwegian situation with respect to advanced technology and employee participation without mentioning the initiative which has become known aa the project of the Union of Metal Workers. This union is the largest in Norway. has taken :, Aa computerization of works and shipyards /place, the impact of new technology .. ...._,/ hu been significantly felt. In view of the importance of these developments, Professor Kristen Nygaard of the Norwegian Computing Center,cooperating with the

PAGE 49

--~ : ""1-..-f i I j -~ 1 .. "' __ ....... _. .. --... J-;.,. -. --~: . . ... .:...., ..... .. .. .... .... .. _,. ... -. union, funded a project to analyze this impact and su11e1t strategies for relating to th.2 Thia project wa1 initiated in the early 70a, and resulted in a massive education of union representatives, a gmeralavar of tha issue in th National Union md evmtually a cooperative project vith NAP. Baaed on examples from a number of local aart (the earlieat for 1972), a natl.onal genet'al labor art on th illtroduction of advanced tec:lmolo11 vaa ruched ill 1975. '111 priDcipl embodied 1n this aart vera codified in the Employee Protection Act 1977 Section 12(3): "Special resulation of plannina and contt'ol 91t Th plo1 or their elected reprumtativ 1hall b informed on ayt.c-uaad for plannin1 ancl in tba vork proc, including planned ch 1n such 1y1t.... They shall have the trainin1 necessary to understand the ay1t, and they shall take part 1n th design of the 1yateu.11 ~n 1972 the first "computer system repre1entativ" wa1 elected. In many companies there are local reprmtativ with a special rpouibility for discussing and analy&inl th computer syat-frOII the perspective of 1111plo7ee wall\ being Aa early u 1970-1971 there vere aaapl of local union taldn1 am lnterut in almts of computerized syt-which aipt be utilized for a control of the ploy All example is the local union of lon1aber1 Vapmfabrikk, a major producer of arm, syt-, 1 1enerator1 and spacial-purpose coaputv equipment. They vera using a mana1-nt Yt which 1eaeratad unqeamt data on the output of th differmt vork station. '111 local union ar1u for a reclip of tba yt-, which actually lad to th c!evalopant of a cuatomized in-hous syt to replace tha standard syat then in use. !'bar is no lnfonaation known to exist on location 110Ditoring o~ aployees beyond till card check-in procedures. Telephone aonitorin1 &eauJ.atiana purauant to the Data Protection Act do not permit the utablishment of telephoae-t110nitorin1 syt--i.e. syst-which will record th number of the aubacriber to which a call la made. There ar tvo general exceptions, however

PAGE 50

-' ~-----:-': 3,0 (Borch1rwink 198S:288-290). Firstly, the Data Inspectorate has licensed hotels to record telephone numbers from rooms of the guests. It should be emphasized that a correspon~ing license to record the calls made from the rooms or work stations of ployeu was not permitted. Secondly, the Inspectorate has licensed recording ... / of calla made from s0111e shipowners. Th shipowners charge the expenses to certain cuat011ca and th have required specifications. The license authorizes the recording of certain numbers required by customers, but not other numbers. It is implied that th r-011 may be an argument for licensing the recording of numbers by private attorneys, consultants, travel agenciaa, etc.-but such agencies have not as yet applied. Productivity IIIODitorin& M the Union of Metal Workers early on took part in the development of strategies are with rupect to c0111puterized systmu, one will find that there1in this respect anaral examples of agrecmts determining the monitoring functions of such equipaamt. An aample involve a protocol on the use of a log of a CNC (Computer Numeric Control) machine for a workshop. In this protocol a number of functions were recordad-error correction, repro1raming Cttinl), re-equipping, maintenance, waiting tima, mgille poliahing and down time. ''Vaitin1 time" and "down time" may be exploited for operator surveillance. '1'he protocol states that: "Th log shall not be uaed in surveillance of the operator of the machine." In this case the equipmmt used also was decided to be unduirable, and wu to be returned to the manufacturer at the end of the one-year guarantee period. Another cue involving the same type of equipment resulted 1n the protocol stating that the recordiq equipment only ia to be used for a limited period of one year, and the recorded data are not to be utilized for surveillance (Bortchgrevink 198S:286). In another case a company purchased a printing press, and ne1otiated agreement with th organizations of employees in the normal way. The printing equipment, however, contained a device for continuous recording of its operation. Thia was beyond the agreed terms and the purchase had to be considered in the 111ht of the special -._._,/ c0111putar and control a1rements. aatiafactory terms were reached. The equipment ranained out of operation until J

PAGE 51

1 I "' t -~ -; ,1 Jo l i :J .~ 1 ; .. j I j I r \ .. I ''--~ ....... .............. I a ... _. ... -............... --~-..----31\ In atill another cue a hotel uaacl a davice that could be plugged into a recording unit while roau were bein1 clu11ed. Tb receptioniat would then be able to see vb a rooa vu ready for check-in of a n peat. It did, however, aleo record the till waed ill clunill1 a rooa. Ro local agr-ant on the practice has bee notiatad.3 A recent survey by FIET produced the followin~ report from the bank unfon fn Norway: -The bank anion ha lncluded 1n its technol09y trnt recrulatlon to controlthe collaction of par1onal information~ror example 1nforut1on on work volume Y only be collected at the level of the work 9roupa and not of the individual employee. Teller terminals ln the banks provide a 9reat deal of infonaation on work speeds etc., but local requlation laid down under the collective a9reeNnt are deai9ned to enaure that auch lnfoaaat.ion..ia not uaad to evaluate ploy The union point out that the only vay to as the lapact on eaploynt and vorkin9 condition of new technologies auch ErTl'OS l by ualn9 such vork ~ure n~ devlces; However the waion tl"H the laportance of controlll119 tile uae td vhich th lafonation 1 put. Following thfs summary, we reproduce an article from the November, 1982 European Industrial Relations Review that contains both a useful historical summary on the Norwe~ian development of data protection fn the workplace and an example of a technology agreement negotiated by the Norwegian Lift Installers Union.

PAGE 52

.. : .. .. ... .. ...... .. . .. .. ...... ... ......_ .. Vidac, surveillance Video surveillance and ayt-tic sto~age of video records is regulated in the amRal aart betvem LO and NAP (Section 6 No 7) Introduction of such aquipamt 1 to be ne1otiatad by the local parties according to the provisions in the general aar-t and th supplauntal understanding on surveillance. Th 1meral agrNIDmt baa aped.al conditions for direct and continuous video surveillance. The purpose and need for such surveillance is defined as: "Such surveillance is to be avoided whm possible, and th requirement of relnance in the Data Protection Act is to be appliad. Systcatic storage by video, etc., is to be limited by th Data Protection Act." The reference to the Data Protection Act is significant because it is by no means obvious that such registers would qualify under the concepts defining the scope of the act. There is a cue decided by the Data Inspectorate where cameras surveyed a certain sector of the ar in which company bad it buain The resulting video recordiq could later be scremed. Tb Union of Metal Wo?"kers maintained that the Data Pi-otaction Act applied to thia syt. Th Data Inspectorate decided _,, :-, I ./ that the video recording containad personal data, but that the criteria in the act for individual retriwability were not aet. If the camera surveyed certain work stations, recordings or an iDcla to the ruulting 1vu established, the recordings would be subject to the l. Othervi, the act ha doubtful juriacliction. Uae of employee records for surveillance Aar-mta in th banking sector have been negotiated on the collection of work atatiatica. 'l'hue data should not be individualized. Plane for the introduction fl

PAGE 53

,....._,, ,. .i ,. 1 1 ,; l ] .l .-J i i .... .... of such systmu must be pranted to elected repruantativu of the ployees who may refuse to authorize th. Similar explu may be found in local agreements in n-paper union, where it is stated that "the syst shall not function aa personnel surveillance in any sector.~ A racaat ... ,1 ha eraecl during the introduction of computerized case-handling aystfor the social-security aclllliniatration.4 Such a massive computerization of a major government bureaucracy will obviously have organizational consequences. In order to collect information on work proceduru, manual time measurent took place until 1984. At that till, the union for the employees rejected these ausurenta. There is gmal conamaua on the objectivu of the coaputerization of socialiuuraace inatitutiou. But there is disagr-t on the effect of rationalization. In order to prove their point, the unions of the ployees agreed in 1984 to initiate a pilot project in cooperation with a sad.-public computer bureau, the last R .. ion Computer Office (im,). Thia office introduced a terminal-based timeausurmt ayst. In Novaber 198S agrt were r~ched to extend this scheme to a large number of social-security offices. The syat produces each day work atatiatica, which are also available to the repruentativu of trade unions and IIU< alike. The data are not to be exploited as organizational managent data until further agreemmts are ruchad. 1.'his lut aample illuatratu hov detailed data on the individual employee ia collected, but such inf orution may be used only in aggregates for organizational clelopmmt. n. trade uniou have voiced this poaition to counter the employer aupportina theoretical &rlUJNDtS on rationalization effects with empirical data on actual cue mana1-.nc

PAGE 54

..................... -... Norway 1'.-..... Hotel 1 Thia and furthar aamplea in this paper are baaed on Mette Borchgrevink J!% telmolo11 i arbeidalivet, Rorvegian University Pre, 1985. For this book Borch1rerink vu arded a lie Jur degree. 'lhe book ia the result of a project at the DCCL, supported by the Norwegian Research Council for Science and the Bmanities. 2 The projact is documented 1n ltristm Bygarrd/Olav Terje Bergo Planlegging1 styring 01 databehandlinR, Tidm, 1974 (two volwa). 3 Borchgrerink, op cit, 374-375, 285-290. 4 Thia example is diacuaaed in an unpublished report by Dag Wiese Schartum, who is directing the project NORIS (70) ''Work process, information technology and aervice quality in social-val.fare institutions", a project financed b7 the Stiftung Volksvagmwerk and in cooperation with Wisaenachaftzentrum Berlin and the London School of lcOIIOllics and Political Science. ,. ""' )' '.-

PAGE 55

,, .I .,... ., BEST COPY AVAILABLE -rn"""'-: ~'-'"-~--4t1i I~ /~~: l'id. ,-,; ~; .. ,v. ,-,,J ...... New technology and data protection Whereas the job security consequences of new technology have become a feature of collective bargaining in several West European countries in recent years, in Norway, where unemployment continues to remain relatively low (around 2.5% currently), the data protection aspects of new technology have also been_ given considerable attention. Norway, is legally binding. was last revised by the signatory parties in March 1982. Since this date. the agreement has been enshrined in Norways latest Basic Agreement between NAF and LO. which lays down the basic ground-rules for industrial relations in Norway (EIRR 101). The new technology agreement or:, more precisely, the framework agreement on "technological development and computer-based systems", covers computerized systems used for planning and carrying out work, as well as those used for data storage and the use of personal data -ie all data which either by name or by other identifying code may be traced back to physical persons employed by the individual undertaking". The agreement acknowledges that the introduction of new technology can In this article, we show how unions and new technology issues in any global affect working and employment employers in Norway have adapted to way in Norway occurred in 1975, with a conditions. so that before any data-the advent of new technology as it central framework agreement between bas'-d system is introduced it must be affects industrial relations. and examine the country's main private-sector evaluated from a social as well as a the role of legislation in this field. employers organization. NAF, and technical and economic standpoint. Norway's largest union confederation Consequently, company managements. The central agreement LOEl~R 68, etc. ~his agreement are required to inform union shop '----I Historically. the first attempt to regulate. which. hke all collechve agreements ,n stewa~ds on prospective changes. and .:..:.:::.=;:;~~~;;.;.;.;..;;.;.;~;.;...~~.;;..;;. .... _...;. ______ ~.;;;=-----------4 this information must be given ''clearly and in a language easily understood by persons without knowledge of the area concerned". Both managements and shop stewards are given the duty of involving employees directly in the process of evaluating changes arising grants employees and their Norwegian Parliament adopted an Act representatives general statutory rights on personal data registers which to be informed about systems used for introduced certain statutory restrictions planning and controlling work and to be on their content and use. These .given any ne~~ssary trajr,ing to oper~t~_ safeguards apply to all sectors of fhe and help in designing such systems.) Norwegian economy (ie not just the from new technology. so that they can On privacy and data protection. the "gain insight into and understand the agreement states that "collection. fundamental f ea tu res of the systems storage. processing and use of which they themselves either use or are personal data shalt not take place affected by..... Furthermore, NAF and unless due consideration is given to the LO 0recommend" direct employee activities of the undertaking. In eacn involvement in any project work to undertaking, it shall be made clear what introduce a data-based system, so that type of personal data should be .. use may be made of available collected, stored, processed and used knowledg, all parts.of the -..... . via, a coraputer,basad. sysiem:. The undertaking': ~nd the greatest leyefoi :. agreement ad~a. that negotiations._ -. emgl0ytt.e influence. may be achieved: ~-. should talfe place a1 underta1

PAGE 56

.... -..... ..... ...... :; .... _,_..__,. .... ... Where information is stored on a computer. the individual concerned has a right to be informed of the type of data being stored. This right is extended to cover manual as well as computerized files, where suchfiles are stored by central or local Government institutions. The Data Inspectorate has powers to order the correction, deletion or supplementing of any erroneous information. The Act also COl"ltains special rules regulating the a1,,1ivities of organizations which specialize in providing information on individual creditworthiness or financial reliability; and organizations which specialize in data processing, addressing and distribution, and opinion polls and market research. Failure to comply with any of these statutory rules can lead to up to one year's imprisonment and/or a fine -the level of which is not specified in the Act but will vary according to the circumstances of the case. Local bargaining In addition to this network of statutory provisions and centrally-agreed rules on new technology. numerous privatesector firms in Norway have negotiated local agreements with unions on data protection -as specifically provided for in the NAF/LO central framework agreement. A wide range of firms are covered by such arrangements including Viking-Askim, which manufactures chemical products, and the Kongsberg arms factory. It is not possible to tell how many local agreements have actually been signed, however, since neither NAF nor LO require their member organizations to register agreements centrally: neither is this a Labour Ministry function. On the other hand, NAF organizes some 9000 firms -a clear indication of the maximum number of local agreements that may have been signeo on this Issue. . -....... The Reber Schindler case A typical local agreement on data protection was recently concluded between management and shop stewards at the lift and escalator manufacturing and maintenance firm Reber Schindler Heis, based in Kristiansand in Southem Norway. Below we discuss briefly The agreement states that personal data registration will only be permitted so long as it is considered "reasonable" in the context of the company's activities and the law. Thus, for instance, agreement was reached that information on an emclovees the background to and contents of this agreement-formally entitled "Directions for compilation and use of personal data". The full text of the agreement appears in _the accompanying box. -Reber Schindler began operations in ~rwayin 1946. It is part of a Swissowned company and today employs people. T-owards the end of 1981, .management decided to install a computer, to take over many of the GOl'ltrol.a,d:planning functions Prt~ousty carried out manually and. at .the same-time, to transfer much of the persona information on its employees, previously stored in classical written f9,a1, to computerized files. (The rnanttal files had been checked in 1980 to ensure-that they 0did not contain any proscribed information as laid down under the Act on personal data registers -see above.) flp ....... educational background should only be stored where the courses and qualifications were 11relevanr to the job. In any event; the use t(? wh~ch ~ny p~rso~al data may be put is subject tp praor discussions between company management and local union officials. T:he ~gr.eement also covers sa!eguards !? ensur~ the confidentiality of information. These include limiting information access to specific authorized individuals. so that where automatically processed data is involved. only those authorized persons "shall know the system keys for necessary access". The agreement also deals with the statutory rules on in~ividual rights eg to check information for errors, etc.O In line with. its commitments as a NAF n,emberfirmunderthecentral BEST COPY AVAILABLE ~ework agreement, Reber Schindler managment then began negotiations ~th shop stawards from the country's Uft Installers' Union (which represents most Qf .!tie firm's employees). The aim of the negotiations was to conclude an agreement on how personal data could best be processed automatically and what safeguards should be introduced about its uses, regardless of form. ~~itla jc, eompany111anagement and shop stewards, the negotiations spanned a period of some six months largely because more pressing day-to day con:cems were given priority-and the final agreement materialized towards the end of March 1982.

PAGE 57

; f ,i ""'--I", Directions for the use of personal data: Agreement of 22 March 1982 between Reber Schindler Heis A/S and the Norwegian Lift Installers Union 1. Introduction The directions build upon: 1. The Act an Personal Registers. etc of 9 June 1978, together with usociated provisions. 2. The Basic Agreement between LO and NAF [union and employer confederations respectivelyEIRR 101). 3. The framework agreement between LO and NAF on technological devetopment and data-baaed systems. 4. The Working Environment Act [EIRR 37}. 2. Scope These directions regulate compilation, storage. working with. and use of personal data within the company. By personal data is meant information and assessments which may directly or indirectly be connected with identifiable individuals in the company. The agreement applies to personal data irrespective of its method of compilation, UN, or form of storage. 3. Objectives Registration of personal data shall only be undertaken where there is a reasonable basis for so doing. having regard to the companys administration and activities, or what. I is permissible under Norwegian law. The objective of the company's storage and use of personal information shall be. discussed with the local union branches. Where there is a demand or a wish on the pa,t of the company, the local branches. or the Govemment. for alterations to. or extension ; of. the scope of the registers, the purpose and area of use shall be discussed with the local union branches. 4. Compilation, use, storage Discussions shall be held with the local union branches on the procedures to be followed in the event of the company compiling, using, storing and supplying personal information. All compilation. use and storage shall be carried out in such a way that.all emplOyHs or groups of employees receive equal treatment. 5. Control The company and the local union branches shall co-operate in order to avoid personal information being abused. In this respect. the following guidelines shall apply: All personal data. irrespective of its form of storage, shall be treated as confidential information under the company's rules for confidential documents. The type of personal data to be compiled, stored, worked on, and used, shall be discussed with the local union branches. Usts and circulars with personal data shall only be requested by, and supplied to. persons who have been specially authorized. Any individual with special authority to receive such lists and circulars shatl be responsible .for these not being disclosed to unauthorized persons. As regards personal information which is accessible by way of data terminals or equivalent machine methods. only specially authorized persons shall know the system keys for necessary access. Such authorized persons shall be placed under a duty of confidentiality The company shall exercize continuous supervision of all registers which contain personal data and over the information which is contained therein, as well as over who has access to the various repartSlregisters. In the event of actual alterations. the lists shall be brought up to date immediately. The local union branches shall have a copy of these summaries.

PAGE 58

....... ............_ ____ .__., _________ .. __ .. ___ -....... ---.. .. -...... ... ... ..... ...... :. ............ I. Awareness right Each individual employee shd have a right, on requnt. to be informed as to what information about himstff is stored in the registe,s. For more detailed methods of ace-. reference should be made 10 section 7 of the Act on PtrSOnal Registers (concerning the individual's right of access} and to sections 1 to 5 of the provisions [concerning the scope of the Act and the Data Inspectorate's rights and duties). In the event of any error, the registration shall be ,edified immediately, and an extract from the new registratiOn shall be sent, without the need for a request to be made, to the person concerned for checking. 7. Updating, erasing, destroying Procedures ro, bringing the registers up to date SUll ~dilcusled with the local unloll tnncn. The individual shall be sent an extract of his own Clata for checKing and poaiblecorrwction . Uni-the company ia bound by any Act. provision. or agreement. or _by any other time limit, personal data on individuals who have ceased to bt its employees shall be dilpoud of not later than the expiry of the following calendar year. Reports from registers which have lost their currency, shall immediately be destroyed. 111ia appliel particularly to automatically processed lists which are produced periodically, and where pnMOUS lists are no longer of value. a. Tran1ltfonal provlslona Representatives of the management of the company and of the _local union branches lhall undertake an inventory of personal registers in the company .for each individual ,:eg~er shall be asNSHd. The aarili shall in respect of the need for th items of data contained therein. Any data which ii not considered necessary sh8'I immediately .be disp_osed .of/destroyed. :: --, .. c Qu11tlon1 otlnterpretatlon ~-... . . .. . _.... . __ lf-dilagreement arises between the parties at the company over how fhtse dfrections are to be interpreted or their scope, either party may refer the. matter to its central : orgariiza.tiOA. The Data Inspectorate may also. in certain instances, be called in where 1 problems of interpretation are concerned. . . BEST COPY A~'AlLJ\uLl ,-, 57

PAGE 59

,:. / .. -r .) I .. ; 1 FRANCE Automatic monitorin1 of telephone call, especially recordiq the numbers ~in& called, hu been repeatedly brought to th~ attention of the Rational Commission on Informatics and Liberti (CHIL) b7 indiv_iduala, ',. trade uniou, and in some cases ployers. There 1a a difference of opinion on the nature of the practice, ber.!!.'\Se the former fear intrusion J .J .1 "! ? I .. of their privacy and the latter want to know the limits of such surveillance. Data collected are considered "indirectly nominative" which obliges goverment agenciu to issue privacy regulations before putting telephone monitorin1 device into use. The CHIL must be consulted during the preparation of these regulations. Private companies. however, are only obliged to notify the CNIL that they have introduced such monitoring. On January 21, 1981 the French Supre Court in the "Malherbert" case issued a ruling on listening-in on telephone conversations by the director of the staff of a half-way house for young workers. It deed the practice a violation of human rights. This decision has influenced telephone listening practices in France. 'l'he metal workers union (CFDT) in 1981 objected to the use of electronic badges used in IBM plants, called Ace Control Enhancaent Progr (ACEP). Union representatives challenged the program bacauae it could be used not only for access to the parking lot and machine roou, but also for other purposes. IBM management inaisted that only "anomalies" like people trying to get unauthorized accua to locations or people vbo would like to get access to the plant outside of nomal working hours would b affected. the union was unconvinced, pres account susgeat, because they aaid people sometime arrive late or are delayed :I.II getting to work and tha situations could be identified and uaed against the particular worker iDvolved. In 1982 th CNlL vu asked its opinion on .. automated invoicing ~st ... initiated by the PTr for household and office telephone. The r.HIL 1a involved _in computer monitoring and computer aided decisions becauae of Article 2 of the Act under which it is established. Article 2 states: "Bo governmental or private decision involving ._a appraisal of human

PAGE 60

--------------------. -. -----------------------~ ... ,: ... ...;. _,._ conduct may be baaed solely on any automatic processing of data which describes th profile or personality of the person concerned." The CNIL recomended that onl)' part of th telephone number called should be recorded to enable proper invoicing but not revealing too exteuive details about the calls. the Commission noted, however, that systema involved in checking whether private conversations are recorded in the working placearc difficult to judge. In a lecmmuDdation 84/31 of September 18, 1984 the CNIL set forth I. viewa on tbia type of practice: 1. Works Councils should be couulted ill accdllance with Sec. L-432, 2 of the Labor Code; 2. !mployeu should be inf onaed on (a) the nature and frequency of monitoring; (b) conditions under which private calls mu.at be paid for; and (c) their access rights under the data protection act; 3. There are to be strict limits on data stored, so that data are not kept lon1r than for invoicuag nor used for other purposes; and 4. Special attention should be paid to the righta of ployees and reprasentativu of Works Councils and trade unions (because companies ten~ to be lis_t_eniag to calla made by Works Council members or from their offices). Employee rights ware established in the Act on Workers' Freedoms and Co-detezmination of 1982. Union concerns were described 1n th CNIL's 1982 Annual lleport with regard to the ~e of questionnaires to collect data on company ~rsonnel The USINOR steal.works in northern Franca sought to reduce its staff, in particula~ some underqualified personnel. The company distributed queat101111aira to these employees asldn1 about their family situation, hobbies aad their ambitions as well u their"aocial capabilities." Those employees unable to competently complete the form ware terminated. Trade unions c:c11plained to the CNIL but the ~onmission said it didn't have jurisdiction because c011putar processing was not involved. The CNIL urged USINOR's aaaagemeat, however, to give special consideration to this type of activity, upecially try to establish union-management discussions before such progr ... are implemented. ,,-...

PAGE 61

. ....__ . i ~ I 3-\\ In 1984 in it Annual leport (pap 112) the CRIL referred to cu involvin1 th national railway ayat (SC1U') vbicb had been authorized by tba C-a-1aa101l to acndtor aploy talaphone calla. 1.'ha CRIL emphasized it racaaaa,*5 that such aonitor:ln1 should be publically known, personnel mould be directly illforaad, profil and practice should not be prepared, and IIOllitorina must be rancloa, not ayst-tic.

PAGE 62

THI Nl'l'RDLANDS Video Syat Honitoring Production PersODDel A district court in Holland In 1985 Issued an lnlunctton aqatnst installation of a video system for monitoring procluctton personnel. The case was brought by the FNV trade union of indutrial vorkera against Koma, a highly specialized firm producing refrigerating machinery. It wu planning to install the video system in all its ., ../ 18 production department after a succful experiment to link an outside production hall to central facilitiea. The Worker' Council did not complain, but the trade union protested after finding out that ~Y ploy objected to being watched. Mana1-11t argued that th purpose of the ayat wu not "surveillance" but "guidance" and ''help". The acting pruidmt of the Diltrict Court of l.oermond was not impressed. Be noted tha.t the purpo1e of the video ayat was unclear and that consultation of the Workers' Council had bee a r formality. So the presiding judge ordered the system atopped until a full court case 011 the merits has been decided or parties concerned have reached a comprehmsive agreaant. Thia could be part of a collective bargainin~ agrmt, u had bem au11uted in court, but the judge warned that any collectiv~. __,/ formula should pay due respect to the fundamtal right of privacy as an individual riaht. "One of the characteristics (of this) 1a that a majority cannot deny an individual or a minority a claim to this right." 'l'be decision of the loermond court opened up nw legal grounc:l. The government privacy bill in the Dutch parliammt doea not addrua such surveillance methods. The court aaid that surveillance of ployeea by ployars in their work will not be felt as an illvaaion of privacy long u it mtail personal contact. ''Privacy protection atenda to the workplace," the court added. Of course, the personal right is not absolute and will have to be balanced against other values such as safety at work, mvirommtal ccmaideratiou, efficiency. But this should not be done without due arent with the ployees on the uae of the syst and safeguards. Source: Arrondissementsrechtbank te lloermond lCG 134/1985. BE~T COPY AVAILABLE ~I

PAGE 63

~ .,'} .: I l :r-. ; .. I .! .-l t -'-~i _,. .,:.,___ .. ,..:-.. W ,.._. ....... -_;.~ .. ._ '--....,,._,,. .. .._ ___ Telephone Monitoring u early u 1977 there ver quutiou in the Dutch lover houae of parli .... t concl'IWII the lwina of telephone aon:ltorin1 equipment to private ca11pani hy th rrr. !Ila Secretar, of Stat for the PTr defended the practice u did th lliDiater of Juatice. 'l'bey juatified thia practice becauaa it vaa mainly for wae by 811all firu. Three acceptable reasons were advancecl: (1) 110Ditorill1 tbe (technical) quality of call with external bua:lnua relationa; (2) prevmtina aiauae of telephone facilities such as uae for private calla hy aploy: and (3) uaiating caapany executives to 1:latm-in on certaill calla (concan:Ln1 arran1aata and contract with other coapania) to "vitna" vbat ia said. 'Dl Pff might varn ployers that there are privacy riaka conuctacl with thia ki1ld of ayat, the Secretary of State noted. The M:l.nister of Justice referred to a criminal code proviaion againat telephone eavesclropp:lng but indicated this constitutes an exception becaua ployera have a legal :lnterut :ln th conversations u they are placed on their equipment. Rovner, the Minister said the decmt th:Ln1 to do would be to :lnfona aployeea of this practice. Electronic Passes 'DI iaauace of electronic pu to lotterda harbor workers bu bean a controversial action. -Before they were introduced there had hn "aoonli1ht:Lna" on th docu by 11011-um.011 workers. In February, 1986, aployera and vorkara ruched a agre ... t for an electronic pus ayat to be introduced. Naber of the Trauport Union initially thou1hr. th pua aipt be uaed to check the t:lM of arrival and departure of trucks. '1'11 ployera actually did not like the syat because it would lud to accuaatiou of invasion of privacy. Revarthel-, the union called for :lllplaantation of the pa plan becau it had negotiated a strong agreement parantee:ln1 their aaber joba. Couequmatly, it wanted th pa to uka :lt :lapoas:lble for non-union worker to take work away from their aabara.

PAGE 64

. \ .. -.. ... ........ AUSTRIA AD agreent signed on April 12, 1984 between the Austrian Data Protecticm C0111iaaion and General Motors (Austria) protects individuals a1a1Dat diaclosur of personnel information 1tored in coaputerized data ba1. Conditions and regulation are specified uncler which GM can store and diaainate personal infonaation on ployHI and customers in several data ayat A rans of infol'llation is collected about cuat011era, such as car aal number, guaranteu and warranty clocuanta. the n of the customer, addr car type, re1iatration number, llar detail, paymmt tenua, any ~ or credit tera, aacl bank relation 1n,or,nation. \GM 1a pend.tted to use some of this information for market analysis. Otherwisa, customer data 1 not to be diaaminated outside the Auatrian company. Information concerning union mbership, ploy work records and vag11 is not to be disclosed. Detail.a on va1 can b released according to a1rent by both QI and th tracle union. Income details, th data protection COlllliaaion stated, must ahov real income, that 1a gro salary, with decluctiona itemized. Vqe payments also may be releaaed for raearch purpose but vacation and sick leave detail 11111~t he dleted fr inclusion of any atudi. the agreent also specifies that control over computerized data must raain in Austria. the coaputer syst cannot be changed or new progr-. :lllpl ... ted by QI headquarters in the Federal Republic of Germany without consultation with CM Austria ancl its union. Acces to computer data by foreign partiu must be strictly controlled; unauthorizd attpt to acquire t.aforaation are to be regarded as illegal. Ho diwl1enc of information to any foreign investigation or enquiry may be mad without express agreement vith GK Austria. Syst ... intended to monitor idle machine time cannot directly or indirectly be used without consultation. Data concerning time worked cannot be released nor used in any way for evaluating personnel by regional or GIi world headquarters. Source: Hew Technologies: Their Impact on E9?loyment and the Working Environment, ILO, Geneva, 1985, paqe 214-215. __...,.__ .... .--. .. ......__

PAGE 65

JJ.S '"'--',! CONSTITUTIONAL RULING Ia 1975 th Auatrian Conatitutional Court 1uecl a rulina on telephone aonitoria1 practicu by a aicl-eized ateel vorka. Th 1 Court rulecl this practice WM "againat human dignity" which 1 a general legal norm for rigbta of panonallty. 'lhat 1, individual may not have their intimate private live (sphere) intruc:led upon by the stat. It is considered a landmark daciaion "in the defense of worker rights" by trade unions. I . .. -~ ; \... .... ,.,.

PAGE 66

BILGitJM there is no national le1ialation coverin1 private sector use of electronic monitoring of worker in Belgium. Ro1Mver labor-manqemant contract have bean concluded conta1n:1D1 proviaiona on peraonnal monitoring. On such qrHllent involvu the SAIT !lectronica Company in Bruaaala and ita union. Tb agreeunt containa th followinl provia~ona: (1) Confidential data on personnel uy be proceaaed automatically only if they are illdeapmaabl to the ployer to t legal obligations; (2) Accua to personnel data banka auat be 1:lvm acluaively to aenior IU.llaamaant of th mterpria and the clat:a subject; and (3) Whan an ploy luva th company, hi data will ba removed from the databue and archived. Govermamt employeu' personal details have bean registered in a central data b~ since January 1983. A deer giving a right of access and correction of thua f'il ha been iaaued. Although critics say th procedures involved are too coarplicated, such u tho involving ace and correction, the decree hu not been -nc1ec1. Some civil servants have complained that information about whether thay can be -11y relocated in the country bu bea collected. There 11 resistance by uuy Balaian civil rvanta. about their "mb:llity for re-aaaignment.11 .r~

PAGE 67

"' ~-: ,: ,( ,I ..; ., .. 1 ~, i .. ,. :.r, .. .'--,; -. .. ~. .. .. .... . ., ,. . . ... .. M: .. SWITZERLAND 'l'ba Svi Confederation of Trade Unions (SGB) issued a report 111 March 1984 on "nn tecbnolo11 and data protection in the company." It contaiu a aoclel teclmolo11 arent. One of the proriaiou stat that the autouted collection and evaluation of data on the work-place to monitor tba conduct or parformance of th worker ia not allowed. Only a f c011paniaa, mostly tho involved in heavy industry, have endorsed thi r-ent

PAGE 68

,~ PART III BRITISH AND COlf)NWEALTH NATIONS: CANADA AND AUSTRALIA ,-.

PAGE 69

'~. .. .. ....... ''' ,i -1 j -~ f -~ i I '.I .,,---..., i 1 CANADA Background .... .: ...... _____ !_ ... .. . . ...................... Canada, with a population of 25 million, is a federal system, with 11 provinces and a national ~overnment headquartered in Ottawa. It has a labour force of 12.3 million, with 11 million employed at the end of 1984. This meant an unemployment rate of 11.31, down from the 1982 hiph of 12.81 but still constituting a serious effect of the early 1980's recession. About 351 of Canadian workers are represented by unior.s. Industry-wide collective bargaining is not common, and enterprfselevel agreements are the ~eneral rule. Though some unions, such as the Canadian Union of Public Employees (CUPE) have drafted model Technology Agreements, this has not been effectuated to the degree that TA's have in Britain. Nor does Can~da have national or proviflefal co-determination legislation creating works councils and co-determination in the European model. There are no specific provisions dealing with work monitorinp in any of Canada's national or provincial labour codes, nor have there been any repulations on monitorfn~ issued by national or provincial repulatory authorities. Under the common law, no rights to privacy for employees have been found by courts to be legal limitations upon employers, nor have p~fvacy statutes (Part IV of the Canadian Human Rights Act of 1977, the federal Privacy Act of 1982, or the Quebec data protection law of 1982) been held tocontrol employer use of monitorin~. What limitations on employer conduct have taken place have been the result of (a few) collective=:::!" clauses negotiated on that topic, or of arbitrator rulin9s fnterpretin~ rfqhts of employees under contracts.

PAGE 70

.. .. . ..... -. . . .. .. ............ ..:. . .. .. . . . ... ,. -.. ... .. .. 330 Union Positions Prior to the arrival of microelectronics and office automation, Canadian unions had enunc.iated the traditional trade union position against measuring individual worker output and using this for judgmental purposes. as well as opposition to various forms of pre~eillance --hidden observation galleries in post offices. still or television cameras photographing workers. use of listening devices, telephone service-observing, etc. Several examples of union activity on these issues, as . .:...-compiled by Ken Rubin, a Canadian student of privacy and information technology, present the Canadian union viewpoint and efforts to deal with specific types of worker monitoring: 1. Electronic Sorting Equipment r 111epallll waters' 0pp01iliaa to illdin.ti11k:iaae&t wart IIIIUUl'IIDIDt bepa ill die 1950. ..... tbeir postal euociation. rwalizld tbat tbeir qreement ta-work meuunmat ia 1953 did not simply imply die detlcdoa ol faulty operadomllldmedlada.Tileflabtwu waa by ..19j4_ wban die Poat Ofllce apNd to stDp iDdlvidull wort meuure ~~,dml employ-. tboupnat ... pan-timen. The illlll surfac:ad apiD ill 1975, wblllcalld8IIW11Willlralltldoatlicawic mlil IGIIIII tl>IDIIIUl8 illllvidull....,,_ producdYity. Followiq a .s,c-wnt a1daaal saiu die Pait Ollca apNd tbat wort IIIIUUrllllellt stuclia could be omnClldaaly.aa11aap1cf1aaqmyor more. ladiYidual wort llllUllfflllent ;dllipedtoprlllln aadlpllduppn:,duo--coadlluld, however, bl violadoaof .. colllc:tiY ....... Altboup tbe Pait Ollce bu coadallld to pna ror iDdividaalwatlllllllll'lllledle ...... '" ia t!'ect IIDdl September, lf84(0lllll41.0l)pralibitlt.bl~ Ho .. ', postal workers know thia will caadmJe to be a difllcult claw tD keep llldafon:e. 1 BtSJ CUPf AvAiLAoL

PAGE 71

''") I ; .. :j I I i :; ..___, ... .. . .. ,._ --.... _... .. . . .... __ ..,_ --. ..... 2. Closed Circuit Television 111111 a SICUrity caacem. n. union arped that if security wu the concern, cameras sbouJd be installed at poina of enuy IDd exit. f unbermore, acuoas should be taUII to prr,em filnher illepl mailopemq abuses by dll llCMP, carried oat ill coapmadaa with poatal authoritill. Thi 1980 Mada Comni,,;,,,, rnriarmy muled that maaapmat did DOC DOW wbl& etfec:t CCTV wu bavin1 oa poatal loaes. what lft'ect it WU baYUII OD employ111, wbalprmldap ~mail-lDd damap wen due to tbeft, ad wben ill tbl poatal system dleft WU OCCUffllll CCTV at om of tbe plaaa. Gaceway terminal. WU IIHd 22 times between October 1978 ud Aupst 1980. V-ideotape mJa were made of two suspected cues oftblft: oa1 suspic:ioll proved to be mdbemded, dll odmlld tD aprmec:miaa. Followiq a stria ill 1981 oa die .... amoaa odllll, warurs' surwriUIDCI, tba employer qrNd to limit CCTV to tb11 two Toraato locadou ror dllcluratiaa~tbl eaUlcdvebarpmiaa ......... ftlid midi Septamber 1984 (Clauu 36.09). Thi 11111t comrac:t Illa C:Oftbtined dw 41.02 limitilll die UN abllmdall pl1erill ill older bar"Jcffnp to llllllriq mail secmity, 111d aot for IYlhwiaa employell' perfonnnce. BEST COPY AVA\LABLE_.1 .... I

PAGE 72

.. 3. Telephone Service-Observina Ellcaaaic eavacllappiDa bu beea Mclmicllly poalibJ tar --dall. NedaneRy.lloweYer,itwuoalyial974 dllt limitl ... pia:ed -.. prKdcl wttll die PIIIIP ol die PIOlaCdaD ol Pd,., Ac&. Wllila ddl Mt spellld GIit lplCitlc pR.aCllna ad caadidalll tor llpl wu-.... bf audlGlized police ....,itlllolddada .. secdaatodll Crimiaal Codi. wbi:11 ltpffzed, witboat limillr~ .. ....,_ prK1ial cl llleuoaicllly u'Nlllrappiaa aa ....,_ far work pmductiitJ .. tllia&Aadllc:laueltalll: l .. A pmall enppd ill pnmdlaa I tllapbam, tallara,11 ar odllr CO'lnnaaielliau Nffll:l to dae public wbo iatlll'.capll I pmafl cammuaicatiaa (la able IOdDIO) ill dllcaune dviwablll ial ar radam moaitDriq IIICIIIUJ for till purpau mmecbaaical or llffice quality caaaal cmc:a." Two e1111 iDumata die caaNq11111Ce1 :cldlilSICtioa. A.irlina Ptl#.,,,,. ~-n. lnxbe, bood m Railway ud AirUus Cle,u l (BRAC). wbi:11 raprlNll1I CP Au, puullltr rellffaCioa aplltl. bu been c:aaamed witb elecaoaic moaitorina of aploylll' coavenatiou, panic:ularly ill dll V1DCOUYer rlNffldoa ofllc:e. A 10icl-lcdvatld tapiq system was ; mdlatlrally ilmoducld by manp"lent 1 to tape eu1tm1 J:alls ill onlar to moaia and coacb rlllffttioa apn11 on tbeir '11111 pia:11'. BRAC rapraenwives, 11o c:blrp tbat e&Ylldroppiq and tapiaa iDchada ilaw-ollce employ crmmllllicadaal 111d personal conv ---. u well u iaconlia1 customer c:alll, 111d tbaC die tapes an bliq used to :juadfy clilcipliury ICtioaL The union WIIICI to put a stop to sacb pnctic:es and 1111 tlnatallld Jepl ecdallM1a1pment bu rapaaded witb a promiN that only pn,badoaary empJoyea will be taped widlout dllir lmowlldae. Replar em ployln will only be taped widl prior I 'Vlrbalaodct, ... I TMJlllo,w OJlfflllOrr on ta Lin Ttltpbom operatOII IN subject to the --kiDdl ol tJlcamic Sllffeillanc:& EaYlldrappiaa oa dlair workplace commmricadau aad tbl iDaoductioD of IMlrtllmld nrirr!+ amdl baw lad tD 11r1111 111d uaioa oppasitioa. Rmota 11...,,;a, and rec:ordiq of talepbaae operauxs c:aavenadoas ii ulld to cbec:k forpolite-11111, ... cl~ and .xt pn,cedures. Mlnmem-cleimlitila Uliaiaapraced-1119 bur. ill pnlC1ice, it ii DDt Umifld ta DIW tmploy..._ Operatan m111tcouent to tba IDOlliforila ol dl8ir c:aDa u a requilita for employmem, 111d tbey are mversure wba tbey III beiqrecorded. CllltOlllen are ol course unaware tbai I 1leir conversadom an, a1IO beiq I moaitorwd aad possibly recorded. TIii ConmnmiQ&ioas Worun of Cllllda(CWC). wbi:11Np1illidlSIVll'&l tlllphom compaaia' operaan. called iD ill 1982 Coavemioa for lepl prohibadaas apimtmuapmemmeuurement m iDdl'ridual praducdoa. tbmup ellc:aaaic mamtanq. ewe acouraps operrm wbo are illformed ol eavadrappiq, aftlrthl f-=t, to automatically ftJeapavac& ewe a11o objKII ro 111e NCOrdiq ot opmo pafonam m die aewly imn> cbad au!Dmasad switdlbauda. Besides resofdaa .a job lallls 111d fturber c:ennlizllioa, dll automated switchboards an capable NCOldiaa dll time spent OD ibeadJin1 ca1II. aad tbe time spam on cba ijob 111d at 1nab. 0ffl'l'UIII uw dma 1moaitandaad ape witbiacomputlrizld ~.,...,...,_ NOardL Thi mcbinery, :Pl'Oll'llllld ICCOldiq to maaapment ;dirlcd,., se11 dll l*I w1coauo1s ma jwartlow, dllll IDlllriDs tbat tbere an ...., mrplua opllUDIS.ar 'IIIIPft)ducdve' llaboar. Macbial 1ICOldl caa allo be ~lllld to provide replaton witb semc:e ~stadllics daiped to jlll1ify telephoae'rata iDcrlua. : (' .,.. 1,..., r: V\/ -~ \.' r) l r-1 P r. t I' I I : '.' ' .. . ?I

PAGE 73

-,~ "'--'' l ] I I -~ .,.-.. 333 In each of the areas in which Rubin described union positions and efforts, employers have defended these types of necessary to insure business efficiency and productivity, measurements or observations as socially and ethically justified,/ and not used in abusive ways. While we are not aware of any Canadian public opinion studies fn which questions about these practices were included, ft seems fafr to conclude that, up to the present, fssues of worker monitoring through closed circuit cameras, electronic sorting equipment, or telephone service-observing have not prompted general public concern, nor led to the enactment of legislative interventions. Whether newer forms of electronic monitoring --particularly of VDT work --may be changing this situation is the issue we next examine. VDTs and Work Monitoring Beginning in the late 1970s, and influenced by European trade union actfvftfes relating to microelectronic impacts, a group of Canadian unions whose fndustrfes were beginning to experience office automation bepan conducting research and developing bargaining positions on new OA technology. In the private sector, lead unions included the Communfcition Workers (CWC), Brotherhood of Railroad and Airline Clerks (BRAC), Newspaper Guild, International Typographers (ITU), Graphfc Arts, and Telecommunication Workers. In the public sector, leaders were the Canadian Union of Public Employees {CUPE) and Public Service Alliance. The national labor federation --the Canadian Labour Co~gress --also became active, especially through its federally-funded Labour Education 0 and Studies Centre in Ottawa. While the primary thrust of these union concerns was, first and foremost, protection of jobs and employment opportunities,

PAGE 74

33'1 and, secondarily, health and safety of VDT operators, Canadian unions were also concerned about quality of worklife issues. It was from both the safety and QWL perspectives that "electronic monitoring" came under consideration. 1. VDT Survey by CLC1 1980 In late 1980, the Canadian Labour Congress' Labour Education and Studies Centre conducted a detailed survey of 2,336 workers at 15 workplace sites across Canada. The sites of .12 different employers were surveyed, in both the public and private sectors, in "the transportation, communications, and public service industries." The survey focused on "the health and workin~ conditions of Canadian office workers" as these were being affected by use of video display terminals. The survey report, Towards 2 A More Humanized Technology, was published in 1982. Sites represented by eight of the 11 sponsoring unfont were used in the survey. Several quotations from the Report's Summary cover the relationship of monitoring to the health problems studied: 3. Results of this study confirmed that health symptoms including eyestrain, stress and muscu-1 ar discomfort are experienced by substantial numbers of Canadian \'OT workers. These health problems ,-,ere especially pronounced fn workers making f"tensive use of 10Ts for long hours in rigidly controlled and automated work environments. While ergonomic factors such as excessive glare, poorly maintained terminals, and inadequate chairs often contributed to hfg~ levels of reported heal th problems I psychosocial factors stemming from poor job design and dehumanizing working conditions \ere a 1 so reported complaints strongly related to levels of ,_..-...__ /J

PAGE 75

i l I I :,-..,_ ) '1 :I 1 -...... .. ...... ~S. A clear picture emerged that VDT work was organized differently from traditional office work. Workers 1 n 1 ntens1 ve use appl 1 cations (which comprise the production line and data entry Job tasks) were generally requ1 red to spend the ent1 re work day sftttng at their terminals wfth little or no opportunf ty to move around or work at non-VDT tasks. The use of telephone headsets 1 n product 1 on 1; ne tasks aggravated worker feel 1 ngs of bef ng chat ned to thefr work stations 7. The degree of work monitoring by the system and the amount of control workers had over the1 r work speed varf ed cons; derably amongst the va-!' rt ous types of VDT work. One pat tern emerged very clearly, however. The most intensive and most controlled use of both VO Ts and workers was found in product 1 on 1 i ne work with the data entry group following closely behind. The most variety and flexi bility in job tasks was noted by the professional and technical group. The remaining group of conversational clerical VDT workers reported work patterns falling somewhere between t~ese two poles. ..;.

PAGE 76

Table 39 of the CLC study provided data directly related to health effects of VDT operators working under employer monitoring. (see table on next page) The CLC report commented on the table's results as follows: Wort Nonttored by Syste: Increased levels of the four stress-related health problems were found for VDT workers who reported their work was monitored by the computer syst (Table 39). About tw1 ce as many such workers reported general tiredness. 1rr1tabt11ty1 headaches, and sleeplessness almost daily. These results indicate work monitoring to be another stressor in the VDT work environment. The recommendations that the CLC made, based on the survey, included a coordinated set of proposals covering system design, ergonomics, work rules, worker participation, and further research. On the issue of employer use of monitoring, they recommended: Since stress symptoms increased greatly when workers were being electronically monitored: It ts reco ... nded tht direct electronic aonftortng of tnd1v1d worker's actfv1ties nd productivity be dtscontt-11ued. If productivity monitoring is deemed necessary, other methods of indirect or aggregate monitoring exist far this purpose.

PAGE 77

' .. .. .. ; TABLE 39 -STRESS PROBLEMS EXPERIENCED . ALMOST DAILY . BY VDT WORKERS: EFFECTS OF WORK MONITORING AND DISTANCE FROM CO-WORKERS Total IIOT -,,die.u 17421 No I NwlbeA ht tacit glt.oup I 17'SI I Null&e.11. J I I Stress Proble11 general tiredness 14651 27 23 t rritabil tty 12761 17 11 headaches 12491 15 10 sleeplessness lflOJ 11 8 ... ,: . ..... WORK MONITORED BY SYSTEM Don't Too Yes Know Crowded 11071 I 1401 1S191 I I 31 28 31 23 17 22 19 18 14 14 g 12 ----------.. . i ''\?i .Y). ._. ,, 'T DISTMCE FRCJI CO-WORKERS About Right 110551 I 24 12 14 10 Too Isolated 1551 I 40 37 35 22 ()

PAGE 78

--33!> 2. Growth of A Union VDT CampaiQn Mobilization of Canadian unions around control of "adverse VDT effects" grew stronper in 1981-84. In 1981, the Ad Hoc Committee on VOTs was formed unde~ the Labour Council of Metropolitan Toronto and began publication of a widely read newsletter, called, "Got The VDTS?" A steady stream of articles in this publication reported health and stress problems experienced by Canadian VDT workers, with monitoring a frequent topic. NEWSLETTER Vol.t,Supplementaryluue Toronto. Ontario Winter. 1983 I Gort employer abuses contract worlcbreaks I : a..t lnaka 1111ollatad by VDT operatan cm be abued by employen and work apilllt tbe iDbnlt of tba emplo,-. ~Im _Ega~ Uaiiii:TOPSIU) workin1 on ffrra IIC8Ddy WOil a to-minute mac:biae lnakaftar8V91)' baurofVDTworkintbeir new collectlw aar-ment. Tbeemploya, ti.OntartoMlnlmyof Health. however. introduced a work orpamt1on systam which violatel the whole intention of tbia macbine lnu pn,vilioo. Normally, data entry operators at OHIP (Ontario Health laaurance Plan) ue requilwd to work 345 minutes per day keyin1 in at a tenninal, and 80 minutes daily at houNkeepin1 and materiala preparation. In order to pt around tbe new to minute rest break provilion. the employer bu cut the 80 minute bouaebepin1 time in half(30 minutia), the remainin130 mi nutes to be used for rest breab. In effect. the operator spends tbe same unount of time keyin1 in (345 minutes) but now hu less time to perfonn necessary tub in preparation for machine processin. The operaton who work under strid ly monitonld quota bued on key strokes per baur haw to work even harder to maintain their quotas. Since housekeepinl time bu been cut in half. they are : under peat.er preuure now than before. r' OPSEU is in the proc:ua of ftlin1 a : pieVanat in nt1pome to tbia recent move. The moral of the story make sure the provisiom for rest brew or machine lnab are clearly spelled out and take quota systems into account In fac:t. it is just such quota svstems and machine monitorin& which sbQuld be atticbd and eiimiilit&Ct' VDT operaton can't avoid 1etttn1 the lmpresaion that employers-in this cue a branch of the Ontario government respon1 sible for health does not take recom-lmendations for the health of the VDT 1 operaton seri~':l'ly. . _;i C I :--',,L,ii-JL.i..

PAGE 79

.:,, ~. \ . I ., '1 ., I ~ '---:: .. ...;~.-'----... .... ;-~..:... Alongside such publicity, Canadian unions began a campaign to secure technological change aqreements co~ering VDTs. Two influential examples --Tech Chpnpe: .~ Hand'b.ook fo_r Negot1ations 3 issued by the Canadian Labour Congress in 1982, and a Model Contract on Technological Chanpe drafted in 1982 by the Canadian Union of Public Employees --included proposed bans on work monitoring. Excerpts are reproduced below. Canadian Union of Public Employees, Model Contract on Technological Change, 1982 Article 30 -Technological and Other Changes 30.01 Technological Change -Definition In this Article technological change" ans any change in: 'a). the introduction of equipment, material or processes different tn nature, type or quantity frcn that previously utiliZedi b) fn work methods, organization, operations or processes affecting one or more employeesi c) in the location at which the work, undertaking or business operates; d) in the work, undertaking or business carried on by the Employer including any change in function perfonned and including the removal of any part of the work, undertaking or business. 30.02 Technological Change -Adverse Effects to be Eliminated In carrying out technological cha~ges, the Employer agrees to eliminate all injustices to or adverse effects on employees or any denial of their contractual or legal rights which might result from such changes. 30.15 Technological Change -No Individual Work Measurement It is recognized that volume measurement may be necessary to obtain an objective evaluation of the level of production of a group, a section or an office. However, there shall be no individual mrk measurement.

PAGE 80

I ----------' ' 1 ' I I Tech Change: A HANDBOOK FOR NEGOTIADONS ll!.::.:;~,;:''.!l;::::11:11\l\l\i:\iif~:i\iiiii ' ll!i!i!l!!1i!l!!!i!l:;:::~:::::1::: ....... I _\ I t Canadian Labour Congress (1'l1)

PAGE 81

--~-.. :. -~ .. 1 :~ ., 'l ,, .j 3 I c ...... : .. ............. ~ .. k .a.r..:-,. .. -.... --: ...... ,-.... ... . Surveillance and privacy 31.ll Employers att now u~ing mi..:~1-=ctmnic t~hnolol?}' to ~losc:ly monitor the output of inJi\'iJual ~mplo} the: number and frec.,uency of errors. and the: time they ~IJ'=nd away from their machines. The awart:nc:~~ of ~un~lanlly bcina closely wak:hc:d and paced by a machine gn:atly incrtases the: stress le,els for thes: workers Employees should be pn,tected against such deep inva.,iun of privacy and close surveillance:. It is int1:rc:~ting to note that the pr.actice of individual electronic monitoring was pn,hibited by legislation in Swc:Jc:n in I '>71. Thi~ wa., the result of the union n:pn:~nting Swedi~h tc:lephune opmators bringing the: issue of the: inva.,ion uf priva1.:y to the Minister of Ju~tice. In Canada, the only successful attempt to prohibit individual work measurement has been the ~ontr.ict clause found in the collective agreement between CUPW and Treasury Board (expiry Dc:mber 31. llJ82): It is recoanized dud volume measurement is necessary to obtain an objective evaluation of the levc:I of production of a 1roup. a section or an office and there shall be no individual wurk anea.~uremc:nt. Anutht:r contr.act dau~ in the ~amc coll~tive ag~ment c:n~un:~ that informatiun ut,1ainc:J lhwugh surv~illance can not be u~ for JiM:iplinar')" purpo~s: The watch and observation systems cannot be used except for the purpose of protecting the mail and_ the propeny of the State against criminal acts such a:; theft. Jepredation and damage t,1 property. A_t no tu~e may systems be used as a means to evaluate the ~rt:ormance of employees. and to gather ~v,~ence an support of disciplinary measures unless such disc1phnary me~ures result from the comm1ss1on of a criminal act. Even with a guarantee of no individual work ~!asurement. pn,blems may still ari~ ~-":''!' m~agc:mc:nt u1ing to raise productivity by using competition b:tw~n Jafferent groups of employees. The Jehmtaon ot a group ma) al~o cause problems since it may be defined as two or more c:mplo)ees. The ideal solution is to n~gotiate a cnntrJct provision guarailtceing that no record of output can used. Of course. this type of protth,e dau.~ would nut he applicable in workplaces which have bonus.es basc:d on individual producti\ity . A few other collective bar9ainin~ contracts (beside the Treasury Board example above) have included clauses bannin~ electronic monitoring of individuals. Examples are the 1982 contract between the British Columbia Open Learnin~ Institute and the British Columbia Govern~~nt Employees Union and the Ontario New Democratic Party Caucus Workers' Agreement. Cited in "Appendix G, VDT Provisions in Collective Agreements (Canada)," in Bob DeMatteo, Terminal Shock (Toronto, NC Press Limited, 1985), pp. 212-213. ut~ i CUfiY AVAILABLE

PAGE 82

I ... ,. i .. -. . : -- . ,, - .... ...... ', ........ I 3. Labour Canada Task Force on Micro-Electronics and Employment In March of 1982, the Federal Minister of Labour appointed a Task Force "to examine the implications of microelectronics for all aspects of harmonious and productive industrial relations in Canada." The Task Force heard testimony from a wide ran~e of interested groups --employers, manufacturers of microelectronic technolo~y, union, scientists, civic groups, etc. This testimony covered the full range of VDT issues, with Canadian unions raising the issue of electronic monitoring in their presentations. A good example of this appeared in the Brief submitted to the Task Force by the Brotherhood of Railway and Airline Clerks, Airline Division, presented by Staff Representative Christine ff Micklewright: ELECTRONIC SURVEILLANCE Again, the introduction by CP Air of a new telephone system, was not considered to be technological change. There was no Union consultation and now that it's in place we discover that it has intensive electronic mon;toring abilities. I would like to take a few minutes to detail for the Task Force, some specific examples of the negative features of electronic monitoring in order to establish that our concerns are neither abstract nor imaginary but are, in fact, real events. Employees must sign in and out of the telephone system, not just at the beginning and end of a shift but also for all breaks taken. As well reservations agents also sign into their VDT. The computer retains a daily record of each person's activities. A complete record of an employee includes revenue production and a complexity of statistics relating to telephone calls handled. As well there ;s a sales programme and employees are exhorted to follow the format to the letter. f/ -.. _:... .. -~---/

PAGE 83

.:1-:. --. ' l 'j .; ~, ,,--., \ ..... ,._.. .. ..,._._ .. .,,., --, _.---.h .._ ..:_'-_,.:,..a A~ ..... ,_. .. ._.. ... ....... : .. 343 Deviat;on from the format has resulted in harassment and intimidation. One employee was the subject of so much pressure to produce according to format, that follow;ng numerous monitoring and tape recordings of phone calls, she finally passed out on the job and ended up hospitalised on a medical leave. Thanks to Union intervention, the aass of documentation was removed from 1 her ,1, but only after much resistance from the company. Despite such blatant abuse of an employee, this type of harassment 1s continuing. Another employee rece~tly confided to the Union that she had produced sufficient revenue in 1981 to place her in the top ten in the office a total of a million dollars in sales -yet in the last six months she has become the subject of intensive monitoring and harassment. She is berated for failing to conform completely with the desired sale~ patter and has expressed fear that like her co-worier she will suffer a nervous brtkdown. The employer has suggested to her that adherenc, /-ta the s a 1 es patter co u 1 d do u b 1 e her s a 1 s product i on. Fr om be i n g -.; ~-: a ~roud and happy employee, heronly objective now is to secure a transfer ta another Job within the bargaining unit. The cost of an unnecessary lass of such a valuable employee cannot be understated. The employee told us that what the company really needed was robots. not human beings. The issue of electronic surveillance will become a major item at the bargaining table. Just as the postal workers invoked I their right to strike last summer aver issues that included electronic surveillanc& so other Unions will be forced to take similar action against such dehumanisation~of the workplace. We strongly support the Convention resalution of the / Communications Workers of Canada which calls for the prohibition of electronic monitoring to measure the productivity and performance of workers. Computers which have the ability torecord for all eternity the sma 11 est of c eri ca 1 errors which become the subject r-. 0 of disciplinary action simply cannot be tolerated 1

PAGE 84

., I .. i i 'i j i 1 ..... .. ... "' .... .. .:.. ... : .... ___ ... -......... ... :. --_ .... --. -...... The Task Force issued its report in late 1982, under the title, In The Chips: Opportunities, People, Partnerships:1"'1t ur9ed a comprehensive program of action, covering policies on industrial relations, quality of workin~ environment, health and safety, women's issues, training and education, and research. Among its recommendations was that "Close electronic monitoring of work be prohibited as inconsistent with human rights legislation throughout Canada." In its detailed discussion of this proposal, the Tast Force stated: (iii) Electronic Monitoring The most serious manifestation of the introduction of new electronic office equipment is its utili zation to monitor the quantity of work performance. For example, we heard about the added stress on telephone operators --primarily women who hardly ever have time to breathe, being cautiht in endless loops" and being machine supervised to produce more. This type of electronic monitorinR also attempts to place limits on workers' freedom to move around. They appear to be tied to their machines under the ever-watching and ever-recording devices. The Task Force re11ards dose monitorin il of work as an em ployment practice based on mistrust and lack of respect for basic human dignity. It is an infrin~ement on the rights of the individual, an undesirable precedent that might be extended to other environments unless restrictions are put in place now. We strongly recommend that this practice be prohibited bv law.

PAGE 85

', -~ ., ,j ' ., .~ .i j '-.-, I ,~ :., 1 -~ -:, ..,. The recommendations of the Task Force were submitted to the Minister of Labor, but proved to be too sweeping, too costly, and too "pro labor" for the Minister of Labor to endorse. In fact, the Report was expressly disavowed by the Minister, and no action was taken on its proposals. 4. Bills in Provincial Legislatures Between 1981 and 1981 and 1985, private member bills were introduced in the provincial legislatures of Ontario, British Columbia, and Saskatchewan to set ergonomic and work condition regulations for use of VDTs. The bill introduced by Richard Johnston, of the left-of-center New Democratic Party, contained the following provision: "No employer of an operator shall use a terminal to to monitor the productivity of an operator on an individual basis." None of these bills were enacted. The 1983 Bill introduced by Mr. Johnston was Bill 83, "An Act For the Protection of Video Display Termfnal Operators," Private Memberts Bill, 3rd Session, 32nd Legislature, Ontario.

PAGE 86

5. Continuing Union Advocacy and Public Discussion During 1982-86, the issue of VDT work monitorin~ has been discussed at a series of national and local workshops, both those sponsored by union-affiliated groups and general conferences on.work, privacy, technology, and industrial relations. Typical of such meetings was a Workshop on Information Technologies and Personal Privacy in Canada, organized by the presti~ious Science Council of Canada and held in Ottawa fn October of 1984. Two presentations by union leaders at this Workshop provide both the current outlook of leading unions and information on the strategies they believe need to be followed to control electronic monitoring. The president of the Communications Workers of Canada, Fred Pomeroy, reviewed developments since 1979 and then criticized current employe~ practices in work monitorin~.' rt In 1981 the Canadian Union of Postal Workers, Pomeroy pointed out, negotiated wo~k measurement by group, prohibiting individual measurement. Canada Post had begun to introduce closed-circuit televtsfonequipment in 1974, installing systems in 26 major postal facilities as part of a billion-dollar program of technolo~ical improvement. nte union also was successful in seeing that monitoring systems could only be used for the protection of mail and not for any disciplinary or work performance evaluation of employees. In another agreement the Telecommunications Workers' Union was able to gain a conmitment from the British Columbia Telephone Company that any data collected on computerized cash registers at Phone Marts could only be used for inventory purposes and not (~r individual work-measurement or -9erformance evaluation. ........._, \ ..... ___,;' 85

PAGE 87

:1 .. :,,--\ '"-.-' I ,j 1 l ;~ {' .... ~\ \..::_.,. / .. ---. . . .... --.... :_. -. . .. .. ~loyee Survei11ance The ~ain purpose for collecting this quantity and type of information, Pomeroy asserted, is to speed up and ~ain greater control of the work process. Frecuently, a manager will sit down with a data-entry operator, a telephone operator or an airline-reservation clerk and say "you made 1,000 key strokes/answered 2,000 calls/ sold $30,000 worth of tickets last ~ek -let's set a new objective for you to improve that by 10% in future." With this kind of sneed-up there is no end. As soon as the objective is reached, a new one is set. P.omeroy fee1s the quality of the work itself, and the health of the worker, suffer. Customers are not given the service they require, because the employee is not allowed to spend sufficient time on a call. The worker is more likely to make errors, and has been known to break down, under the increased pressure of surveillance. Not only is this form of surveillance taking place for telephone operators, machinists, airline-reservation clerks and postal workers, it also has implications for those professionals working with computer-based systems. Lawyers, researchers and engineers can have similar data collected on them: the kind of searches they make, how long they spend on each, how many keystrokes they make, whether or not they made any errors, and so on, according to Poroy ~other case, involvin Air Canada, resulted in upholding the right of the employer to monitor airline passenger service agents' conversations. It was ruled that the employee's right to privacy in this situation is not infringed by electronic eavesdropping equipment, providing the intent is for purposes of productivity ,, and efficiency, not to cause emotional distress. Air Canada and C.A.L.E.~. {Simmons), unreported.

PAGE 88

The second presentation was made by the staff expert from the Brotherhood of Railway and Airline Clerks. A story in the Toronto VDT Newsletter reported her presentation as follows:? Management control Electronic surveillance threatens workers' and customers' privacy Editor's Note: The foJlowina Gltide Im .... amrpflld from o speedt liven by CJuiltinl Vice General Chairparmn o/ die BIOfherllood o/ Rail-, and Auiine Clem (IRACJ, to a Sciencl Council of Canada worbllop on In ~an Tedanololi and Penollol Pri,acy. n. speach pointl out once aarain .._ Mn ot a VDT can I misUlld, a ...... o/ boda worbr and Cllllallllr. ID die c:aune of their dutiel su~son .._ lilmdy to convenatiam of workers. ... CGDVSlltiODI ... taped and (N,..,.., dUIUII perfarmuca appnial .. n.. warbn .,. cau1ht in dHemrne If tmy lie pievance or protest tbisinvuionolthair~vacy in someodw wn,..., they draw further attention to themalva. and the details of the nature of thlir 1ftioD1 become the sub;ect of offk:e ... p. Fortunately. union action identified thal the new telephone syllem. which w voicl activated. wu a violation of the Pri vacy Act and c:omequently manaaemant WII bead to 1WVamp a system. that recarded evay ward spobn. We will never know the extent of private convers11ion llll'Wtillanca .. but we have eliminaled that particular ability of the system lo record private conv.,.tiom batween employees. and learned a leaon for other workers in the future. Workplace lllff8lllaacl: MaM--riplT Telephone workers and airline apnts work la a highly controlled environment where workplace surveillance is an 11-lllllled riaht of manapment. 11111 surWillanc:e of each worker beains the moment he or she sips into the telephone aystem. An account of the worker's actiom throuah the attachment of the umbilical telephom card ii recorded down to the 18CODd the number of calls. duration. time between calls and time uapluued from the system. It is fair to uy that no mana.would tolerate his business calls beina secretly monitored b) superior.nor his bathroom breaks recordad. It is also fair to uy that most manapment maJce personal phone calls duriq their wark.ia1 hours -a privilep that tends to be denied to their employees. s.n.illaace ........... The intensive and wide ranging natwe of the surveillance now imposed on workers ld lo tremendous stress on the job u worbrs ue exhorted to increase produdivity. There can be no doubt that such workina environment leads to health problems for IDID8 workers. 11le me al computer terminals as a work tool alto allows an employer to o~ mve the transactions of an employee from IDlll8 remote offk:a. Such surveillance raises all kinds of feanabout the privacy of electronic mail The ability of one worker to communicate with anoth ii &ustrated by the lack of -=urity. Repettably. the inten surftillance of work.era.by electronic means in an effort lo quantify work fails to tab into account the human upect of work. There can be no Na1 measurement of customer rvice; no real evaluation of whether a repeat cus tomer wu 1enerated because of &iendly helpful service: no real 1'9C01nition that a worker's smile brouaht business. never mind how fut ar slow the employ work ed. Quality i1 beina replaced by quantil}-. ,,,.-~ \ ._1 BEST COPY AVAILABLE ----S:l!llfi ....... ~;p~.""'"'-..,,i;9~u~ .. ff'l;r',,...! "!!'t,"'io:l.\"'ll',;'4'.'or.,f*!"'.':""."'Jr.)li.C'.1';",;._,~,."T"ll+""':21"""W~ .4.~---.... i;f"':"'......-,-...._,..__...,......__,...,......,_,...._ _____ .,,,_ ___ .. __ -_ ... _, _______ .... l}

PAGE 89

1 i f \ ,, ., '/ Another presentation at the Science Council Workshop discussed strategies that opponents of electronic monitoring could follow. After reviewing bargaining and legal developments, Ken Mazur argued that amending existing federal laws represents the most effective approach. Amendments to the following statutes he believes to be the most effective strategy: Employment Standards Act, Labor Relations Act and Human Rights Code. Specifically, Mazur suggests: -Th Employment Standards Act could be amended to cover lctronic surveillance, but, he notes, "the only difficult part would be that there are no affirmative orders to con-ect specific violations;" -The Labor Relations Act might be amended to cover non-unionized businesses as well as unionized firms; and -The Ruman Rights Code could be expanded to cover electronic surveillance if the right to privacy were extended to the workplace. Labor's success, it is argued, will be conditioned on greater public awareness of electronic-monitoring issues. f In 1985, theCo-Ordinator of Occupational Health and Safety for the Ontario Public Service Employees Union, Bob DeMattec. brought out an expanded and updated version of a book he first authored in 1981, Terminal Shock: The Health Hazards of Video Display Terminals~ DeMatteo linked close electronic monitorin~ to the filing of worker compensation claims for stress, and strongly endorsed the monitorin~ ban included in the International ,--.. ,0 Labor Movement Guidlines on VDTs adopted by representatives from 14 international labor federations in Geneva, Switzerland in 1984. These said~"No video based system should be used to

PAGE 90

While we are not aware of any public opinion data on how the Canadian public feels about individual worker monitorinQ, our strong sense is that this has not been an issue of major public interest nor has it been hf~h on the political agenda of Canadian public affairs. The protests by Canadian labor leaders and intellectuals parallels that in similar U.S. circles in 1984-86, and, in both countries, has not produced leaal action from governmental authorities. One possible avenue for government examination of VDT work monitoring --and other forms of worker monitorin~ -in the next few years may be the current review and updating of the Canadian privacy law under way in 1986. There are informal reports that experts working on modernizina the Privacy Act may have specific lan~uage authorizfn~ the Privacy Commissioner to examine electronic monitoring in the workplace, by makin~ this a ground for citizen complaints. Since it is not clear yet how this move will proceed, OTA will want to stay in contact with the office of the Privacy Commissioner to obtain definitive information. .,--. i?

PAGE 91

. l .. ... ~, __ f -~\ I .~ I ,, _,_ / \.. ___ .......... '. ............... !!. ... --...... .., .... ...... : .. -........... t REFERENCES 1. Ken Rubin, "Electronic Monitoring in the Workplace," Perception, March-April, 1983, pp. 25-27. '35\ 2. CLC Labour Education and Studies Centre, Towards A More Humanized Technology: Explorino the Impact of Video Diselay Terminals on the Health and Workino Conditions of Canad1an Offfce Workers, Ottawa, December, ,982. 3. CLC Technolo~y Committee, Tech Chanae: A Handbook for Negotiations, 1982, Educational Services, Canadian labour Congress, Ottawa. 4. 5. In The Chips: Oaportunities, PeoRle, Partnerships, Report of the Labour Cana a Task .Force on icro-1ectronics and Employment, 1982. 6. Presentation Dy Fred Pomerov, President, Communications and Electrical Workers, Science Council of Canada. "A Workshop on Information Technologies and Personal Privacy in Canada," Ottowa, October 1-2, 1984. 7. "Management Control: Electronic Surveillance Threatens Workers' and Customers' Privacy," VDT Newsletter, Labour Council of Metropolitan Toronto, Ontario, October, 1985. 8. Note 6 supra. 9. Bob De Matteo, Terminal Shock {Toronto: NC Press, Limited, 1985).

PAGE 92

. -.. --..... -----.... -. .,,,... . ............. ~--'". ,--. .. .. -~ AUSTRALIA / ../ The Law Reform Commission Australia (ALRC), established in 1973 by Act of Parliament, with reference to personal privacy was given the mandate to look into "the extent to which undue intrusions or interferences with privacy arise or are capable of arising under the laws of the COIDIIIOnwealth or of the Territories, and the extent to which procedures adopted to give effect to those laws give rise to or permit such intrusions or interferenc-1s." The commission issued its report in June 1983. Among the main rec011111endations were the enactment of statutory privacy princ\les, I creation of a permanmt statutory Privacy C01111iasioner, formation of a Human lights COlllllission, and "n legislation to control the use of devices for secret intrusion into privacy by (a) listening devices; and (b) optical surveillance devices." New Threats To Privacy The comiaaion concluded that privacy in Australia is in danger due to growing official powers, new business practices and new information technology. In addition to new legislation, it called for administrative remedies for interferences on privacy, specifically: a) conciliation and negotiation should be conducted by the Privacy Commissioner involving disputes in the public sector; b) publicizing the names of "those who flagrantly or persistently violate privacy II principles; and c) undertake a public education program so people will be aware of their information privacy rights. The commission specifically addressed optical surveillance in public and outside public places among its recommendations: -Public places So far as public places are concerned, there should be no regulation of optical surveillance. For the purposes of legislation, a "public place" ,/ \ should be defined in the same terms as it is defined in police offences, summar:~ offences and like legislation.

PAGE 93

I .. ,j I l ,---, '-:_ _, -. .. ,._._..., ...... -.. ,-~--~--..... !I,., ; ... ..... -- ;.;..;";., ___ __ : _._ : _.,:, ...._.. ,. ..... 3S3 -Outside public places Outside public places the use of optical surveillance device to observe people who could otherwise reasonably expect to be safe from observation should be prohibited. Thia prohibition should apply to all Commonwealth officers. It should also apply In relation to the Territories, by prohibiting optical surveillance by Territory ruidents, or of Territory residents. 'l'bia prohibition should not be drawn in such a way as to protect wrongdoers who take step to ansure that they are out of sight. Accordingly, where the surveillance device is used by a person for the purpose of observing what he had rsonable grounds to believe was the c011111iasion of an of fence, the use of the device should be excused. Further, if the person using the device had reasonable ground to believe that the use of the device was known to those whose activities were being recorded or observed, the uae of the device should be excused. Finally, there should be the overriding requirement that the particular use of the surveillance device was, in all the circumstances, reasonable. This should apply even if those observed or recorded knew about the surveillance device. The onus of proving these matters should be cast on the person using the surveillance device. Intrusive Employment Practices With rupect to intrusive employamt practices, the AI.RC cited weaknesses in basic protection in Australia. "The weakness of the coaaon law rules protecting the liberty and privacy of the individual from invasion by private security guards and agents also renders largely nugatory its protection in institutional settings, particularly that of employment. An intruaive interference with the person is not tortioua where consent has been obtained. Consent in certain settings, while it might appear to have been voluntary, will very of ten not be real. The weaker party, whether a shopper, employee, applicant for employment or institutionalized person, vill often not be in a position to deny a request to search property or person. Consent may be au appropriate bar to aa. action for assault, but it is not necessarily a bar to the invasion of privacy, especially in relationships of unequal power. When the search is of the investigator's property, such as a search by an em~loyer or institution of a locker or desk drawer, the law is of no assistance to the person whose privacy has been invaded. 11 After describing how optical surveillance systems are used, ALRC asserts that "sueh practices constitute an invasion of human rights, including privacy." It further observes that "there is at present no legal pr~hibition upon secret optical surveillance (in Australia)." In the employment contacts, ALRC refers to a state~:=:nt ,(A

PAGE 94

--.... ,, .. ........... ; .. .. ., ~I ....... J ., ' -_, ~-, ._,.._ ; 1.-: .,.. which by the Committee of Inquiry into Technological Change in Australia,1in a 1980 4 report expressed concem at developing surveillance practices and recommended that "th parties directly involved in electronic systems that monitor individual emplo~e'!S should consult on appropriate standards to be observed." Offtctal Guidelines Issued Th Australian Public Services Board issued Guidelines on Official Conduct of Coonwealth Public Servants in August 1982. 5 The guidelines state: "Unless exceptional circumstances apply, covert surveillance devices should not be used ... .... .,,/ in relation to departmental staff, on the grounds of both privacy and good staff relations. Open surveillance methods should be used only where the overall public interest in efficient and economical administration or preventing the misuse of Coaaonwealth property and facilities outweighs the privacy and other considerations involved. Staff mambers and staff associations should be briefed on the purpose and use of any such syst before it is introduced." The ALllC report was submitted to the government in 1983, and as of February 1986 the comprehensive privacy legislation it recommended has not been submitted to parliament. Periodic statents from the Commonwealth Attorney General's office indicate that in due course a bill will be put forward. At the state level, however, Uew South Wales (NSW) established the Privacy Committee Act, that came into force on May 2, 1975. The NSW Coaaittee has four major functions: (1) research-to develop a general policy toward privacy and advise on particular issues; (2) complaints-to mediate on complaints of unjustifiable invasions of privacy; (3) public education-to act as a clearinghouse for information privacy issues and to stimulate informed public data debate in this field; and (4) recOIIIDlendation-of changes in the law and administrative and business practices. Although it h4s authority to mediate disputes, the co1111ittee has no power to enforce its recommendations. After nearly a decade of operating without enforcement power, the committee in 1984 urged the government to revise the act,giving it such authority. In March 1980 the committee issued a background paper on the use of electronic monitoring of telephone calls. The research focused on "employing computers to keep a record of the details of telephone calls made from particular extensions, including the originating extension, the time of day, the duration of the call, the number of the call, and cost of the call." It pointed out five main purposes for _____ __ p __ ,.., . ____________ ,._~-----.---------~------'/3

PAGE 95

l" -~--. ... ..... ---..... j ... ---... -.... --. ..... -~--,. --i i I '\......_.,. i 'i / '.. J I 365 operating such systems: (a) cost allocation between different parts of an organization; (b) control of staff personal calls; (c) system design and mana~ement; (d) correction of telephone misuse; and (e) checking on reasonableness of non-itemizec charges. After the completion of the paper, the committee issued a set of y,uidelines to apply to this type of equipment, covering: collection of the minimum necessary data; care in supervision of business calls; recording only the duration of personal calls; security and destruction of the data generat~d; prior consultation with staff and warning that the system was connected. Some aspects of the guidelines were objected to by the Labor Council of NSW as inadequate. The Council opposed all use of telephone-surveillance devices. Typical Employee Monitoring Complaints the NSW Committee's Annual Reports contain accounts of ~ypical complaints. Among the examples provided from 1975 to 1984 are the following: (a) Recording telephone conversations for training ur oses A company wished to measure how n::i:;;~_~e~ly its staff dealt with complaints from the public. People ringing in were asked whether they objected to the conversation being taped "or training purposes" and advised that if they did o~ject no r~cordin1 would be made. Most peopl! did no~ object and the recording was then listened into by the supervisor and if appropriate, discussed with the staff member. After discussion the recording was erased. The Committee had no objection to this procedure particularly as the staff were advised of its existence. (b) Control of abuse of Subscriber STD ac1 1 1 es ome arge organ, za 1 ons ave installed a device which can be attached to particular extensions and will record the time of the making of the call, the area code and the telephone number, suppressing the last two digits and the period of the call. Without the last two digits there is adequate information to request particulars of the call to ensure it was for business purposes without being able to check within the 100 possible numbers as to who the actual recipient was. Provided staff are made aware of the existence of the system the Committee has no objection.

PAGE 96

;, '. -~ (d) (c) (1979) Is surveillance of employees Objastign tg AD Intarsm799~ ut to the committee by a unreaaonable? This waa the l !din collecting money from union repreaenting employeesb;::::d to their surveillance by the public. The employee~ ~l as thoy were already monitored an intercom sytem, eape~ a lt that the intercom, which was by televiaion camera= eyd life on the job too intrusive. operated without warning, ma e h C ittthat the intercom was Th employer informed t e Ollllll ra surveillance and make doubly required to auppl-nt1rtc:":a. not diverted en route to the sure that any money co e~ d to enforce a rule that collectors till. The intercomiathl~e~r ~allow employee must not converse w thetic to the need to prevent Whilst the Coanittrfwa:_s~iaalso considered that employees misappropriation o un e were being monitored. The were entitled to k": :::: !1'w!rning should be given whenever Collllllittee reC01aende that employees would not feel that the intercoa was in uae 0 them this would still enable the aaployer wa~~ut to4 !!:upervte the collection of money. the intercom to ww use to inatal a flaahing light to indicate The employer agreed when the system waa in use. S UJL vu.llanc.e. o 6 .Sta 6 6 b q Telt vi...6.lo n Came..Jta.6 CI e; PI) In our backgroind raper on employment, the Comm~ttee set out its concerns about surveillance of employees by various methods and partic_ularly secret surveillance. In i;his instance, the employer quite openly in~roduced television cameras primarily to prevent -or observe burglariea in a highly sensitive area. The Union involved,and the Committee, had raServations as to the value of the System, but in view of the fact that the Union had not objected,. and of the highly sensitive area subjected to scrutiny, the Committee did not reco-end removal at this stage. The Committee did, hovever, stress to the industry its concern that unnecessary surveillance systems sh~uld not be installed. Individuals do not like to be subjected to surveillance by mechanical or electronic methods, particularly where they are not aware who might be observing them at any particular time. The Committee will closely observe installation of such systems and request employers to discusa proposals with the Committee in advance. The Committee would also be interested to hear from unions or employees about current or.proposed systems. The Committee notes with interest the continual monitoring of diamond sorting, proposed in Western Australia.

PAGE 97

,.,,,.-....... .... / "'""---I _,J --.: ....... ,. .... --........ .. .... -------'------...... --.... "" .. . -.... --.. ... .. .. . (e) .. 357 T. V. S.tuc:Uo '.6 Own Candid J.f..lc.1to phone A film studio connected a recording device to record all conversations between producers, sound, film crews and other employees involved in a production to isolate co-ordination problems.and correct them. The union involved did not object to this but rightly objected to it being connected without the knowledge of or prior discussion with the staff. The company apologised for its lack of consideration. It was agreed that the recordings would be kept in a secure place and only used where there was a specific problem which required solution. They would not be used for spot checking of conversations between employees and would be erased after three months. A switch was also installed so ~hat, at an appropriate time, employees could have a private discussion without its be~ng recorded. ~.....-.---~-------------

PAGE 98

~.. .... : .. _. ..,,,,.. ..; .. ..... .. .. Trade u n i on Ac t i v i t i es Australian trade unions have paralleled the British unions in assailing the negative impacts of new office and factory automation ~n workers and the workplace. Bill Richardson, General Secretary of the Australian Council of Salaried and Professional Associations said that current automation practice had three main consequences: it destroys jobs, deskills and de~rades the jobs that remain, and is designed to increase managerial control, through worker monitoring. In early 1986, the Australian Bank Employees Union wrote the .. Au s tr a l i a n At to r n ey Ge ~-er a 1 a s k i n g for the n a t i on a 1 gov er nm en t to take action on "the ever increasing use by employers of data on their employees, and particularly on the automatic collection of data permitting the monitoring of individual work performance and workplace behaviour." The ABEU forwarded a copy of the November, 1985 FIET Guidelines on "Personnel Data Collection and Processin~ Systems," ** which call for such monitoring to be legally prohibited. Mike Cooley, "New Technologies: Some Trade Union Concerns and Possible Solutions," in Bjorn-Andersen, op. cit., p. 194. ** FIET Newsletter. No. 3, March, 1986, p. 7. .. ../ .. ."'\ --.. J

PAGE 99

Complaints relating to employee .surveillance were not sustained after 1982 becoming less teclmology related, as reported by the NSW committee. These were of two types: (1) insrusive questions on ployment application forms, such as frequency of church attendance, how earnings are spent, political party affiliation, and disclosure of assets and liabilities; and (2) complaints about staff evaluations, access to medical examination results and requests for details on reasons given for dismissal from pervious jobs. Employee-management differences over collection, handling and access to personal information, however, rained an active source of complaints throughout the nine hear period.

PAGE 100

--~ _..,._ ....... ------. .,,;, ....... .. __ .. ----~ ...... -Australia Notes 1 Terms of Reference of the Law Reform Commission Australia, issued by R J Ellicott, QC, Attomey General in a letter to the coamission dated April 9, 1976. 2 Privacy, Volumes I and II, Report No 22, Law Reform Cotmnission Australia, Sydney, June 30, 1983. 3 ~, page LXI 4 Technological Change and its Consequences, Committee of Inquiry into Technological Change in Australia, Report Volume I, para 7.216 (1980). 5 "Guidelines on Official Conduct of Commonwealth Public Servants", August 1982, Personnel Management Manual, Volume 3, 4 7. 6 Telephone Usage Monitoring Systems, NSW Privacy Committee, Report No 53, March 1980. ,, /

PAGE 101

r PART IV FAR EAST DEMOCRACIES: JAPAN /'--.. 1 ,__J

PAGE 102

JAPAN Popular Attitudes Toward Privacy As already noted, and contrary to assumptions among many Western observers, national public opinion surveys show that Japanese society and its leaders now hold concerns about invasion of privacy and register support for data protection measures at levels similar to those in Western OECD nations. In July of 1985, a representative national survey of 3,000 men and women aged 20 or over (a successor to a 1976 privacy survey) produced the following findings:1 1985 poll: 61% interested in protecting privacy and 25% not interested. In 1976, only 25% said they were interested in protecting privacy. 1985 poll: 481 believe cases of privacy violation are on the rise, and 341 do not. In 1976, only 31% believed violations were on the rise. While 71% in 1985 believe such privacy violations will increase in the future, only 57% thought so in 1976. 76% of respondents in 1985 believe there is an "urgent need" to take "appropriate measures to keep personal information under protection. 11 In the detailed sections of the survey, Japanese respondents complained about the f1~od of direct mail they were being subjected to; inaccurate information circulated about themselves and their families; and collection of personal infomation "by outsiders" without their knowledge. Information respondents felt it was important to secure privacy protection for included: "annual income, personal property or assets, and the amount of taxes they were paying"; family life; and political or religious creed. While 51% of respondents in the 1976 survey said they had no particular personal information they wanted to keep secret, this percentage dropped to 40% of respondents in 1985. .~ _/ < "'\

PAGE 103

In the questions relating to computers and privacy, Japanese respondents shared the generally positive attitudes towards information technology voiced by respondents in most OECD nations. 85% of Japanese respondents fn 1985 said the computer makes work and daily life easier, and 78% said computers were "indispensable" for modern life. However, 51% said there i-1as danger of private life being violated by the spread of computers, and 69% believe that increasing computerization would increase violations of privacy. No questions about privacy at work or of surveillance/monitoring of employees were asked in the 1976 or 1985 surveys, or on other national surveys about privacy conducted over the past decade. Attitudes Toward Privacy Protection Measures As of early 1986, there is no national privacy protection law in Japan, comparable to European data protection statutes or the U.S. Privacy Act of 1974. However, over 125 Japa~ese cities and towns have passed privacy ordinances on protection of municipal data (which are among the most sensitive in terms of containing citizen and family data). 2 Since 1974, reports by the Administrative Management Agency (AMA) of the Prime Minister's Office have discussed privacy protection and stated that this could become an issue in Japanese life.3 In 1983, the AMA issued a thoughtful report enunciating principles for national legislation; 4 this followed issuance of privacy-oriented findings by a 1982 Conmittee on the Protection of Privacy (chaired by Professor Kato of Tokyo University). 5 During the 1970's and early 1980's, there were public discussions of privacy concerns over computerization of family registers; automation of the

PAGE 104

"Green Card" for savings accounts; access by patients to their own medical records; creation of automated alien registration files; and creation of a citizen identification number. Again, no public discussion dealt with employee monitoring. Misuse of credit information was highlighted with a well-publicized story in May, 1983 of the leak from a credit data bank ("Japan Data Bank") of debt information about two television directors, and the subsequent hann done to their lives. This incident helped dramatize the dangers to persons when personal data are released improperly. 6 How Japanese saw government protection of privacy interests was captured in a 1981 national public opinion study sponsored by the At-AA.7 It found that while Japanese citizens were very positive toward computers and their improvement of life, they were also concerned about collection of too much personal information and how it might be used, especially by government agencies. The poll found very strong support for "measures" to be taken to protect privacy in the public and private sectors. Support in the 84-94% range was expressed for requirements to obtain approval to collect personal information; to forbid uses other than the purposes for which collected; to give individuals a right of access and correction; to create an "inspection institution" for databanks; to compensate individuals for violations of personal privacy; and (by 761) to provide criminal punishment for violators. Worker Monitoring in Japan Sources from both employers and unions agree that employers in Japan do not make it a practice to collect performance statistics on employees and use these for compensation, discipline, or tennination purposes. Japanese unions replying to a FIET questionnaire on privacy at the workplace reported the situation as follows: 8 ./

PAGE 105

,i w ~-\ I \..,_..:. . -......... .,.. __ .. ............ ', ........ --------.. -........ Some Japanese companies operate personnel information systems which include: (1) Payroll records. (2) Listing of qualifications held. (3) Inhouse service records. (4) Listing of applicants for relocation. The union's view is that data is used for reassignment of workers, and for education and training. In almost no case is it used to the disadvantage of workers e.g. by measuring work speed or error rates. The main exception to this is attendance records. Although these records are collected primarily to calculate overtime payments, ft is clear that a consistently poor attendance record will affect an employee's efficiency rating. No action has so far been taken by unions to regulate these matters. Interviews conducted in 1985 at one large Japanese affiliate of an American computer firm .confirme~ this judgment. A Japanese staff expert fully familiar with the practices of Japanese industrial and service companies remarked:9 Individual work monitoring is not an issue in Japan. Employers do not measure individual output and make individual judgments on that basis. If they tried to do that, unions would complain, because ft would violate the union-company attitude toward worker productivity. The climate in our workplaces is for employees to work hard, and for the whole work group --employees and managers --to strengthen the norm of hard work. We would not measure each person. In fact, the only example of Japanese employers counting keystrokes of individual workers involves a very different purpose and use than the typical monitoring situation. In the early 1960's, key punch jobs in new data processing operations became very desirable work, especially among young women. :1 EDP was seen as a critical industry of the future, and very important for the :., ,:: 1 Japanese national interest. However, a wave of repetitive strain injuries (RSI) broke out among Japanese keypunchers, based on the high number of keystrokes being performed daily and working conditions at the key equipment . ;,:-,..._ Some companies (including IBM-Japan and UNIVAC-Japan) set voluntary '.0 i guidelines to limit the number of daily keystrokes, and the Japanese labor L

PAGE 106

. ._,._,..,...r,.,; . ..... ? I ... .,.. -,.,. __ _,__,.,,,;. _._,.. federation covering this area of work (SOHYO) also proposed guidelines. In 1964, the Japanese Ministry of Labor (MOL) issued Guidelines (representing a compromise between the employer and union standards). These set a maximum of 12,000 keystrokes an hour for keypunchers. To enforce these guideline limits, employers could and did conduct test monitoring of individualworker rates and totals. The 1964 MOL Guideline also set keypunch working time at a maximum of 300 minutes aday; required 10-15 minutes an hour rest period for all workers in the same work room at the same time; set standards for noise, lighting, temprerature, and space in the work environment; and called for medical examination prior to assignment for key punching, with periodic checks there after (yearly). The "voluntary MOL guidelines" of 1964 were widely followed in Japan. They are currently being used as a model for "consensus" building by industry, labor, and government for similar.MOL guidelines to be issued in 1986 for VDT work. lO ,,-....._ / ... _,,,,

PAGE 107

1 ,--, \: .. \ ----..J:\~w..:......:__ ..,. .. ; .. ~.._ .. ..,.. ...,_,_,._. ... ._..""'-'" ... ----".; FOOTNOTES 1. "Invasion of Privacy by Computers Feared," The Japan Times Weekly, Saturday, November 16, 1985, p. 10. 2. Tsuyoski, Hiramatsu, "Japan's Privacy Protection Measures," Transnational Data Report, VII, No. 2 (1984). 3. "Japan Readies Privacy Protection Pol icy, 11 Transnational Data Report, IV, No 8 ( 1981 ) 4. Administrative Management Agency, Study Corrmittee on the Protection of Privacy, Protection of Privac in the Processin of Personal Data (Sunmary), u y, 1 &,lt U.t ('IVa ~&-,_ fU'f_f.4 ~C,,.,..,,( Note 2, (----~,...., """' -~l'z-,J1 ~e...;.,f 5. suera. 4.~--~-z:.!~..zt:-c~ ... -~-6. Note 3, supra. ~.CR ~-pe,-~.., !'fn-,,,,s-(~., :rL01 ,~rrJ_, 7. 8. Ibid. n. J!-ao. FIET Report of "Personnel Information Systems," Submitted to the Ad Hoc Meeting on the Follow-Up to OECD Privacy Protection Guidelines," Paris, 26-27 June, 1985. 9. Interview conducted in Tokyo by Alan F. Westin, May, 1985. 10. Information compiled by Alan F. Westin, from interviews with industry, legal, and academic experts, Tokyo, May, 1985.

PAGE 108

. I ..... .. . .. ... ,\ ... ,,;~ ..... ,...:.., . __ ........,._.. . _... ... .. ...,. -.. ~-..;.. .............. ~-....... -j. PART V INTERNATIONAL TRADE UNION ACTIVITIES

PAGE 109

'r', 1' .. International Trade Union Activities The international trade federations that have been demonstrating the greatest activity and are most directly concerned with issues of work monitoring are the International Federation of Canmercial, Cleri~al, Professional and Techni_cal E~loyees (FIET) and the International Confederation of Free Trade Unions (ICFTU). The two international unions have conducted surveys, prepared studies and held conferences on COIJJPUterized personnel information and work monitoring. They have urged the International Labor Conference, the annual meeting of the International Labor Organization (ILO) to take up these subjects and consider adopting appropriate international labor standards to address them. ICFTU Position The ICFTU brought its concerns to the attention of the UN CaJ1111ission on Human Rights Subcanmission on Prevention of Discrimination and Protection of Minorities at its 38th session in 1985. As a result of circulating draft guidelines for the regulation of canputerized personal data files, ICFTU found strong support for such action by the Con111ission. The following is an excerpt from a statement by Oscar de Vries Reilingh, Director of its Geneva office:

PAGE 110

i I ; I i .. J -~ : ., ', __ ......._,.s...~ . ..:_._ ....... J ... .. ; _..,.. ______ .,. _____ -Our interest in the subject relates, of course, in particular to the use of computerized personnel data systems, i.e. data relating to employees collected by their employer, as distinct from personal data systems in general, which include the first type of data systems but go much wider to cover any data relating to individuals collected by any institution for any purpose. It is fodeed very fortunate that the Special Jt ,orteur has clarified this distinction in his introductory statement-and that the English title of the draft guidelines has been modified accordingly. The importance of the protection of data privacy in respect of computerized personnel files is growing because of three factors, namely: the increasing use of cheap data processing hardware by small and medium sized enterprises, in addition to the large ones; -new developments in data base software which makes it easier for users of such systems to change their requirements for infonnation after the system has been set up rather than having to build all such requirements into it from the beginning. the growth in new automated methods of collecting data on the performance and behaviour of individual employees, such as telephone monitoring and the use _of badges and identification cards to control movements. General laws on the protection of personal data are very nec essary to preserve individual liberties in the face of the increasing use of computer data bases. The regulation of personnel files through such legislation alone is, however, very difficult, because of the need to be specific enough to cover all aspects of data collection, processing and the use at ,., the level of the individual enterprise or worlcplace. In a number of countries ; .1 ._:; l 1< :i .. : .. ,: .. . ? i ' l j I the legislation therefore provides for the right of worker representatives to be fnvo)ved in the regulation of personnel files within the overall legal framework. In many instances this right is further elaborated in collective labour agreements between the employer and the trade union or unions concerned, regulating the establishment and operation of and changes in computer ized personnel information systems and recognizing the principle that not only the individual should have the right of access to and correction of data fn a file, but that the trade union or unions involved should have a collect ive right to monitor the use of computerized personnel files and to approve any modifications made to them. 3:0

PAGE 111

--~--:.-...n---"..-,. .... --.......... ...... .................. _...._. ___ -----: f A clear eAample of the importance of regulating certain aspects of the protection of data pr;vacy ;n respect of personnel files r .through collecthe barga;n;ng and the conclusion of collectivt labour agre~\....__ ments is the provision in the draft guidelines which prohibits the storage of information on trade union membership. Such a prohibition would run counter to the practice in several countries, both developed and developing, to have check-off arrangements at the enterprise level, i.~. arrangements through which lht employer deducts trade union dues from the wages and trans fers these dues to the trade union or unions concerned. In such cases it is absolutely crucial to store infonnation on trade union membership in the data files. Quite naturally, we agree that employers should be prevented from collecting infonnalion in order to use it to discriminate against unionized employees. However, it is almost impossible to define in legislation when it is and when it is not necessary. Th h under 1i nes the need to a 11 ow spec i a 1 regulations through collective labour a9reements which would be best adapted to the requirements in each individual case. Tl~ proposed draft guidelines are necessarily of a general 1 nature. We therefore strongly support the suggestion in the report that the \. __ .. !}eneral principles could be supplemented by so-called "sectoral rules" for activities involving special risks and that the ILO should draw up appropriate guidelines concerni~g personnel files. As a matter of fact, this id~a was again included in a resolution adopted by the ILO Advisory Conmit~ee on Salaried Employees and Professional Workers, adopted last April, and in a resolution presented by JCFTU delegates to the last ILO Conference in June this year which, unfortunately, could not be taken up due to lack of time. As J have already stated, the JCFTU supports in general the revised draft guidelines as presented by the Special Rapporteur. In this connection, J have only two specific remarks to make: we hope that it is clear that, under the principles of fairness and or accuracy, the employee, who is responsible for the operation and maintenance of the personal data files.should be guaranteed the right of non-/' ........ compliance when the employer orders the employee to carry out unlawful ... activities in connectf on with these data files; under the prindple of interested-person access, we would prefer that th, phras~ ;f the need arises be deleted as it would unduly aualifv th@ strPnot.h nr thi; nr;nrinl -~-~--~ --~----,------....... ----...... ______ ,, _. ________

PAGE 112

,l J. l 1. ..... -~."---..... __,.__ --1 _...__.,_.,_ __ .. -~-FIET ACTIVITIES The International Federation of Commercial, Clerical, Professional and Technicnl Employees (FIET), composed of unions in 90 countries with a combined membership of 8.3 million, has demonstrated a keen interest in applying privacy restriction~ ;o the collection and use of personnel data. In November 1985 FIET organized an International Trade Union Conference on Personnel Information Systems, attended by delegates from. 27 FtET-affiliated unions in 12 countries. A back~round reoort described its position "that an effective response is required to meet the specific and growing problems presented to workers by the operation of personnel 1 information systems." Intrusive Practices Identified This response, FIET indicated, should go beyond the provisions of the OECD guidelines and Council of Europe convention. A particular concern identified is the "possibility that advanced computer technology may be used to collect additional (personai) information which does not traditionally enter personal files but which can now easily be correlated with such data." Four categories were identified: a) automatic collection of information on attendance and work performance; ~) telephone monitoring; c) security-system monitoring; ~-i d) electronic payment systems used to trace employee buying habits J I i:. : : l. t. I .... On the latter point an example given related to a worker being reprimanded for absenteeism after a payment record showed he had purchased seven beers the previous lunchtime in the company canteen. P.hks of t1on i t'Jr ing Hi suse High With respect to automatically collected information, the report notes that word processors, numerically controlled machine tools, point-of-sale systems and other computer-driven devices permit the collection of large quantities of data personally identifying individual employees. On the one hand this is "justified by reference to the need to avoid misuse of systems and breaches in confidentiality." On the other, however, "it also makes possible the collection of information on such matters as: time work began; time work finished; length of rest pauses; ///

PAGE 113

.. ....... --,"t ...... '--~----- _.....-: .... .......... ______ -.... "'...... -number of key depressions per minute; number of error corrections made, all of which can be recorded automatically against each employee's name. This permits much closer supervision and control of individual attendance and performance than is possible with manual systems. Some systems now in operation make it impossible for an operator to leave a machine without specifying for the machine's records the precise reason for the pause. This may well be in the interests of costeffectiveness for the employer. It is certainly not in the interests of a humane work environment." FIET recognizes that there are acceptable uses for such electronic monitoring, such as to make it possible for employers to know the reasons for periods of inactivity in a factory or office so that efforts can be made to eliminate bottlenecks in the supply of work elsewhere. Equally, information on work speeds and error rates in theory can be used to identify areas where employees have an excessive workload and where additional personnel are needed. Unfortunately, these are not the most common applications of this type of work-related data. '~ore often it is used tc:> classify employees as above-or below-average performers, to fix salaries, to influence promotion prospects, etc. It can also sometimes be used to determine salary levels directly (as in payment-by-results systems) or to justify disciplinary action taken against employees for bad attendance or unsatisfactory work performance. Limitations on Monitoring Urged FIET believes a number of conditions should be sought by trade unions, to ensure that monitoring is fairly conducted: 1) that no personal data should be collected automatically by machines without the knowledge and express approval of the works council/unions; ii) that a complete specification of the programs to be used in connection with any computer-based equipment should be furnished to worker representatives, together with similar details of any subsequent amendments to such a pro~rmn; iii) that the purposes for which automatically collected data are to be used should be agreed in advance with the union/works council; iv) that a timetable for the erasure of automatically collected data should be agreed.

PAGE 114

.:a I.. ... -~-............ Telephone monitoring With regard to telephone systems, FIET points out that "computer-controlled telephone switchboards can be used to monitor the personal use of telephones by members of staff and to prevent unauthorized personal use." There can be a ''significant degree of stress for employees," the report continues, "if they know that every telephone call is being monitored and that they may be called on to justify calls made. On occasions trade-union representatives have found em?loyers using such systems to invoice their union for calls made on union business. Where such systems monitor not just external but also internal communications they can be used also to monitor normal social contacts between t-1ork colleagues and to detect any signs of worker discontent which results 1abnormal patterns of telephone use. For all these reasons trade unions should insist on strict controls on telephone monitoring systems. Unless they are essential for invoicing purposes, systems which identify the destination of calls made by individual employees should be banned. Only aggregated data should be stored for any length of time. u Security systems control and identification .. ./ ~ecurity systems, by using access/devices, allow management to know where employees are within a facility. FIET observes that such devices can not only be used to prevent authorized personnel from entering certain areas, but also trace the movements of all personnel. "The potential for such systems for disrupting trade-union oraanization within the enterprise has certainly not escaped many employers," the federation concludes. Electronic payment systems Magnetic and microprocessor-based cards used in company canteens and for other purposes can be a monitoring device, F'IET claims. "Unscrupulous employers," the union argues, may use information collected about employee purchases against them, as was noted in the incident cited earlier. FIET personnel data guidelines Guidelines on Personnel Data Collection and Processing Systems, distributed by FIET at the conference, are "intended as an aid for trade unionists engaged in --~ '.._/.

PAGE 115

--...,_ \ / 375 negotiating collective agreements on the introduction and operation of personnel data collection and processing systems." (Appendix A) The guidelines stress the full involvement of workers' representatives in planning and operation of information systems that collect data or can otherwise be used to monitor employees. Addressing automatic data collection, the guidelines state: ''The automatic collection of data in a !Jlanner that would permit the monitoring and recording of individual employees' work performance or workplace behavior should be strictly forbidden. It is unacceptable that the application of EDP techniques in the workplace should be used to collect info:cmation, for example, on individual work patterns and error rates, or on normal social interaction in the workplace. If an employer can show a legitimate need to collect automatically data on output and productivity, workers' representatives should insist that such information be capable of being handled only on an aggregated basis so that it is impossible to break down and attribute data to the behavior or performance of individual employees . In this way employers should be prevented from using automatically collected data as the basis of decisions in respect of discipline or promotion." Surveillance Conditioned on Agreed Practices No telephone monitoring system should be put into operation "which is capable of recording the origin, dastination or duration of individual calls by or to employees.". Direct interception and recording of calls by management, FIET states, should be strictly forbidden. Employers who prove a legitimate need to control the movement of employees may do so but where electronic devices are in operation "workers' representa tives should ensure that their use is restricted to meeting well-defined and agreed security needs, and not exploited as a pretext for the establishment of a general system of surveillance of employ movements." However, "data no longer required to meet agreed needs should be immediately erased." In a statement issued at the conclusion of the conference, the participants: -welcomed OECD, CoE and UN data-protection initiatives and "strongly empha-sized the pressing need to extend protection of intemationally recognized basic human rights at the workplace itself", -called on the ILO to "make a crucial contribution", through the elabora tion and adoption of a convention on persoMel data processing; -reiterated the view that "the automatic collection of data pexmitting the .. _....~..,.':""1.4511!!!'.~91'1'~~'1Sl4tlfr,S\~l.~J?l"".ff!""'*"'~':.oe]-t;!!!!"-j .... CIIIIJl.-,.4,.....,_.4.., ..... .. IIIIII( ti I. 4 T. A .. Z_4___,,._,.__ II~

PAGE 116

"' "?:'' . 411' ..~ ...... .,~:...:~~4 .... -.., ~---. ...... '. _..._ .. __ --'. monitoring of individuals' work performance and workplace behavior should be legally prohibited;" and -stressed that "legislation alone was unlikely to offer sufficient protection to aployees, and needed to be complemented by trade union or works council involvement in the control of personnel data collection and processing." Notes 1 2 ,.:'\ Personnel Information Systems, document prepared by FIET, Geneva, for Internatic ,./ Trade Union Conference on Personnel Information Systems, November 28-29, 1985, 30 pages. .. J-//J

PAGE 117

.......... ...... .. ... ,_ ....... .. -------~-----------GUIDELINES ON PERSONNEL DATA COLLECTION AND PROCESSING SYSTEMS INTRODUCTION Th international trade union guidelines are intended as an aid for trade unionists engaged in negotiating collective agreements on the introduction and operation of personnel data collection and processing syst-. They may be regarded as complementary to the FIIT Model Technology Agreement published in 1983 which sets out in 40 clauses the general, procedural, and substantive issues with which trade union negotiators will have to deal in the_field of technology. Moat of these principles are fully applicable to the specific case of personnel data collection and processing, and are not repeated in these guidelines which may, therefore, be used most effac::tively in conjunction with the model agreement. 1. GENERAL The basis for negotiations between an employer and workers' representatives should be a COllllllitment that no innovation in respect of personnel data collection and processing should be implemented without agreement between both parties on all aspects of its introduction and operation. Until such agre ... nt is reached no modification of existing arrangents should be made. 2. SYSTEMS SPECIFICATION Workers' representatives should be fully involved, from the earliest planning stage, in iMovations in all areas of electronic data processing. All relevant information should be made available by the employer, in intelligible form, on the specifications of the software packages, and the overall capabilities of the systems under consideration. 3 TYPE or PERSONNEL INFORMATION TO BE COLLECTED, STORED AND PROCESSED The categories of personnel information which the employer is permitted to collect should be set out in the collective agreeMnt. On no account should the employer collect any type of information other than those listed. 4. PURPOSES FOR WHICH INFORMATION IS HEID 'ftle precise purposes for which information is to be held and used should be specified in the agreeme~t; Workers representatives ahould ensure that they are restricted to directly work-related issues and legally prescribed objectives. 5. MINIMUM DATA VOLUME The volume of,data stored should be kept strictly to the minimum required for the attainment of the agreed objectives. Provision should be made for the regular erasure of material which is surplus to that requirement. The time intervals agreed for eraaure will depend on the nature of the data, but particular attention should be given to the case of employees' disciplinary records. //~

PAGE 118

.. .... : .. .;:.. :. ...... ~-.......... --....... .,_ ........ .;.::;s; __ ,:___..!,_.a..,__....,._ .......... ... 6. AUTOMATIC DATA COLLECTION cThe automatic collection of data in a manner that would permit the monitoring and recording of individual employees' work perfonanc:e or work place behaviour should be strictly forbidden. It is unacceptable that the application of EDP techniques in the workplace should be used to collect information, for example, on individual work pattems and error rates, or on nonwal socialinteraction in the workplace. If an employer can show a legiti mate need to collect aut011atically data on output and productivity, workers' representatives should insist that such information should be capable of being handled only on an aggregated basis so that it is impossible to break down and attribute data to the behaviour or performance of individual employees. In this way employers should be prevented from using automatically collected data as the baais of deciaiona in respect of discipline or promotion .J 7. COLLECTION OF INFORMATION The general principle that information should be legally and fairly obtained should be strictly observed. Information should be obtained only in ways known to, and agreed by, employees. 8. THE ACCURACY OF INFORMATION It should be established that the full burden of responsibility for the accuracy of data held should rest with the employer who, equally, should be liable in respect of any adverse consequences for an employee arising from inaccuracies. The employer should also be responsible for ensuring that data is up-dated with sufficient regularity. 9. EMPLOYEE ACCESS TO PERSONAL RECORDS Every employee should, at any time, have the right of i11111ediate access to all data held on him, or her, at no personal expense. Workers' representatives should also secure agreement that a full print out of each employee's data file should be made available to him or her routinely at regular intervals. 10. RIGHT '1'0 CORRECT DATA Any employee who finds, on inspection, that data held on him or her is inaccurate should have the right to have erroneous items corrected. 11. LIMITATION or ACCESS TO DATA The right of access to the personal files of any employee should be limited to a minimum number of individuals named in the agreement. They should be identified on the basis of the strict requirement of their job responsibilities. 12. SAFEGUARDS FOR DATA SECURITY In negotiating the specifications of the persoMel data collection a.nd processing systems to be introduced workers' representatives should ensure that the system selected incorporates sufficient technical and organisational safeguards against access by any person other than those authorised in the agreement. In addition, any data run carried out in respect of an individual ployee should be recorded with details of when it took place ///

PAGE 119

........ ::.;.~ .. ... .,, and on whose initiative. Information on such data runs should be made available to the individual concemed on request. 13. TELEPHONE MONITORING Workers' representatives should insist that no telephone monitor inCJ system should be put into operation which is capable of r recording the ori9in, destination, or duration of individual calls by, or to, employees. Direct "listening in on calls should be strictly forbidden.~ 14. AUTOMATIC MONI'l'ORING OP EMPIDYEE MOVEMENT Employers may be able to prove a .legitimate need to control the mvement of employees, particularly for security reasons and when access to s0111e areas is restricted. Such control is increasingly achieved by the use of personal identity cards or badges. Where such devices are in operation, workers' representatives should ensure that their use ia restricted to meetin9 well defined and a9reed security needs, and are not exploited aa a pretext for the establisment of a general system of surveillance of mployee movements. Provision should be made for the immediate erasure of data no longer required to meet agreed needs. 15. COMMUNICATION OF !NPORMA'l'ION TO OtJ'l'SmE PARTIES The c0111111Unication of persoMel data to outside parties should be strictly prohibited. Any possible exceptions to this principle should be set out in the agreement and take place only with the consent of the employee concemed. The employer may also be legally required to disclose information to third parties. 16. PROVISION OP TRAINING POR WORXERS RBPRESDTATIVES Effective control of personnel data collection and processing systems in accordance with the tezms of these guidelines requires that workers' representatives are in possession of sufficient technical knowledge to enable them to understand fully the working and capabilities of the syst in question. Therefore, agreement should be reached that such representatives should attend appropriate EDP training courses at the expense of the ployer. It is important that this training should be undertaken at a sufficiently early stage in the process of the introduction of any syst tq allow representatives to participate meaning fully in consideration of its specifications. Trade unions should also give attention to Metin9 education and training needs arising from personnel data questions. 17. RIGH'l' OF INSPECTION The provisions of any agreement are liable to remain a dead letter unless they can be effectively enforced. Therefore a right of inspection of the operation of personnel data collection and processing systems should be included in the agreement. This should provide that designated workers' representatives or, on their request, members of an independent data inspectorate, should have the power at any time, and without previous notice, to examine the functioning ot a syst. They should be guaranteed free and unrestricted access to all aspects ot the system and be able to report their findings to the relevant works council, trade union, or, where appropriate, data authority.

PAGE 120

... -------------. ..... ---.. -----------. .#-~),.- : ~~.,..:. ~ -~--,&._ ...... '"'Ji..,, .. ____ ,. ,.....__.,_.,..,,._____....:. PART VI INTERGOVERNMENTAL ORGANIZATIONS: UN, ILO, AND COUNCIL OF EUROPE

PAGE 121

The intergovernmental organizations that have expressed an interest in r""'': employee privacy and/or worker monitoring have done so because of their '~--mandates in human rights or labor-management relations and working conditions. The early and continuing leadership om the field of personal data protection by the Council of Europe, strongly supported by many member states, clearly influenced the UN Comnission on Buman Rights initiative in this field. The Council of Europe (CoE) a regional body with 21 member countries, was established in 1948 to implement the European Convention on Human Rights. Beginning in the early 1970s the CoE Committee on Legal Affairs took up how personal privacy may be affected by the introduction of computerization in member countries. This led to two recommendations on how the public and private sectors should treat personal information and finally in 1981 approved a legally binding convention on the subject which came into force in October 1985. The UN Commission on Human Rights has been concerned about how science and technology have been affecting human rights since 1967, and first took up the question of whether special attention should be given to the computerization of personal records in the mid-1970s. The matter has been under con&ideration by the Subcommission on Prevention of Discrimination and Protection of Minorities since 1982. Louis Joinet, a French magistrate, former chairman of the Council of Europe Conmittee on Data Protection, was asked to prepare Draft Guidelines for the Regulation of Computerized Personal Data Files. This report was approved, with modifications, at the subcomission's 1985 session. It is being distril>uted to UN members and should be ready for final consideration when the subcoDIDission meets next year. If approved, the guidelines would be submitted to the full Commis sion on Human Rights and then the UN General Assembly .. The importance of employee information privacy and worker monitoring being considex,ed human rights issues subjec1; to international guidelines and codes governing acceptable behavior and national legislation, is that they cut these issues in a moral and ethical context. Proponents of extensive employee rights vis-l-vis applications of information technology by manage ment can exploit endorsements by human rights organizations to demonstrate the rightness of their case.

PAGE 122

-. ---------------------------------. --; .. .,, .. ..._.~... .. '~,-. ..._ .... ___ .....,..,_.,._ t)~~(~ The International Labor &13 I n (ILO), a UN agency with some 144 member countries, has a 65-year record of "promoting international action aimed at achieving full employment, the raising of living standards and i111rovement in the conditions of labor." The means of collection and uses of employee information are within this official ILQ purpose statement. Howewr, employee privacy is only one of a host of issues that face this organization. The camnunist bloc and a number of Third-World countries show little interest in such issues. On the other hand, if and when an ILO policy statement is negotiated at the full International Labor Congress, this could boost the unions which have been in the vanguard of establishing controls over information technology in the workplace. --~ _/ ""'\ I /

PAGE 123

---....... ___ ,,,,. ... __ .. / ....... j ,..__./ \ tlt COMilSSION ON HUMAN RIGHTS The UN General Assembly in December 1968 (Resolution 2450(XXIII)) asked the Secretariat and other agencies to study "uses of electronics which may affect the rights of the person and the limits which should be placed on such uses in a ~aocratic society." The C011111ission on Ruman Rights, Subcommiasion on Prevention of Discrimination and Protection of Minorities, undertook a study into whether "~uidelines in the field of computerized personal files111 should be adopted by the full Commission and possibly by the General Assembly itself. The study was prepared by Special Rapporteur Louis Joinet of France, who participated in drafting the French 1978 act on Data Processing and Liberties, and served for a term as chairman of the CoE Data Protection Committee. Draft Guidelines for Personal Files The study's conclusions were endorsed by the subcommission in 1983, and the provisional draft guidelines were aaopted at its 1984 annual session. The UN Secretary General, however, was requested to transmit the guidelines to all member states and relevant international organizations for comment. Revised guidelines, taking into account suggested amendments, were approved by the subcommission in August 1985. 2 The guidelines contain many of the principles embodied in the CoE convention, with the addition of a principle of non-discrimination. No enforcement mechanism was proposed to supervise their eventual implementation. Among the suggestions received by the subcommission was that the "possibility should be left open for supplementing its general principles by 'sectoral' rules." One sector "involving special risks" was identified as personnel files. The International Confederation of Free Trade Unions (ICFTU) in a statement on the guidelines stressed the importance of protection of data privacy with regard to of, computerized personnel files, because1among other reasons, "the growth in new automated methods of collecting data on the performance and behavior of individual ployees, such as telephone monitoring and the use of badges and identification cards to control movements of ployees." Final Approval In 1986 The period for c011111ents and suggestions from governments and international bodies has been extended into 1986 when the Special Rapporteur is to integrate them into a final report. The subcommisaion is expected to complete consideration of the guidelines at its 39th session scheduled for August 1986.

PAGE 124

---~' - -..,A._,__._, __ UNCH1l Notes 1 Draft Guidelines for the Regulation of Computerized Personal Data Files, UN Commission. on Ruman Rights, Subc0111Dission on Prevention of Discrimination and Protection. of Minorities (E/CN.4/Sub.2/198S/21),June 23, 1985. 2 Report of the Subc0111Dission. on Prevention of Discrimination and Protection of Minorities on its 38th session (E/CN.4/1985/5), Geneva, August 5-30, 1985, page 55 \ ':L) '\ __ j ',J_

PAGE 125

.. ... . ... .. _...,_. :.~. lt'--,. ....... ' .--:.-....:...-~-f .. urrERNATIONAL LABOR OFF ICE ( ILO) At the urging of the Intemational Federation of Conunercial, Clerical, Professional and Technical Employees (FIET), the International Labor Office's Cormnittee on Salaried Employees and Professional Workers meeting in Geneva during April 1985 adopted a resolution on "Personnel Information Systems and Data Privacy in Commerce and Offices". 1 The resolution invites the "Goveming Body of the ILO to request the Director General to carry out studies with a view to establishing, in consultation Pith other appropriate United Nations agencies, a compendium of principles and good practices for safeguarding the rights of individual workers at the enterprise level." Compendium of Principles Asked A resolution along similar lines was introduced at the 1985 ILO Conference in May 198S but not debated or .1dopted due to time limitations. Its operative provisions, in addition to (1) calling for studies on problems concerning the collection, storage and use by employers of individually identifiable data relating to their employees, also calls on ILO to (2) organize a tripartite meeting of experts to prepare rules and guidelines governing the regulation of data privacy at the workplace; and (3) include the question concerning regulation of computerized personnel information systems and data privacy in the agenda of a forthcoming session of the annual ILO Conference.2 Possible New Standards Within the current review of the Working Party on International Labor Standards of the classification of existing Conventions and Rac011111endations the ILO's -Governing Body, at its 232nd session (March 1986) included in its draft revised clnssifications of standards two items under the Industrial Relations topic as possible subjects for new international instruments: (i) Standards on the protection of workers in matters of discipline, and (ii) data protection of workers. The item was included on the suggestion of the Worker members of the Working Party. The Employer members considered that this subject might be regarded as an aspect of conditions of employment. The draft will be discussed at the November 1986 session of the Govf:!ming Body. i.

PAGE 126

__ .. ..,,.~-.., .. Technology Threats Raised The ILO Secretariat supports such projects, if the organization's press office ~nd official publications are any guide. ILO Information (October 1985), the monthly bulletin of the organization, carries headlines "electronic spies threaten workers' privacy, M explaining that "there's basically nothing wrong with those technological wonders which boost productivity, ti~hten security or help end boring work. The trouble starts when they are used to spy on workers, invade their privacy and divulge personal data to anybody who presses the right key." These statements are offered by way of introducing the ILO publication Technological Change: The Tripartite Response 1982-1985. 3 It is a compilation of studies and country reports on the impacts of computerization-illustrating the technological dilemma facing the world due to computerization. . ../

PAGE 127

,, ., ........ -~, . .. ... .. -. .. .. ... . . . -:. ... ., -. -. .... _.__.1' Notes 1 Text of resolution concerning follow-up to 1978 Compendium of Principles and Good Practices relating to the Conditions of Work and Employment of Professional Workers. Resolution on personnel information systems and data privacy in commerce and offices The Advisory Committee on Salaried Employees and Professional Workers of the International Labour Organisation, Having met in Geneva, in its Ninth Session, from 17 to 25 April 1985, Observing the growth In the use by employers of computerised systen1s for personnel management in certain countries, Observing also the Increasing use of new technol ogies In commerce and offices for this purpose, Aware of the dangers which the misuse of such systems could create, Noting the work already carried out in other International organisations in the field of data privacy. notably the Convention of the Council of Europe for the Protection of Individuals with regard to Automatic Processing of Personal Data, the OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data, and similar guldel Ines on computerised personnel files currently under discussion by the Subcommission on Prevention of Discrimination and Protection of Minorities of the United Nations Commission on Human Rights, Considering the Importance of protecting the rights of workers in the workplace, Considering the usefulness of I LO studies on the use and disclosure of personnel data, Adopts, this twenty-fifth day of April 1985 the following resolution: The Ad_vlsory Commit~ee on Salaried Employees and Professional Workers invites the Governing Body of the I f'.'ternational Labour Office: to request the DI rector-~e,:-eral to carry out studies with a view to estabh~h1ng, in consultation with other appropriat~ Unated Nations agencies, a compendium of principles and good practices for safeguarding the rights of individual workers at the enterprise level. __________ ......,_.~----. --

PAGE 128

2 Resolution concerning computerized personnel information systems and data privacy, International Labor Conference, 71st session, Geneva, May 25, 1985. 3 Technological Change: The Tripartite Response 1982-1985, International tabor Office, Geneva, 1985, 355 pages. ; ;.-

PAGE 129

. . . . International Lab~ur Con~erence ... .. ~ ~isiOiialRSCOrd < ... : Seventy-first S~ion~ _G~neva, _1985: ~: . : :, ,' ' . I . .. \ ,, ; I~.: ", ,: I 1 I I:, \ ...... .... o ff t t I ... -.. ~ f ~- I t t:; t o I ~; . . . .. ; : I ,' '. : i ... . . .. ; .. . .. . =~ .. ; ... I R I ti _. . ,. .-.. :.. . . . eso U ODS I I I .._ .. .:., ... ( . . . ". . ,.,, f ... '.-; .--~.:.~:: I . -R~u~o~ S~adlted. :ia. A~~-witb Ard~ ... 1 : .. 1r_ of die. S~diag 9r~~ of die ~oafe~~ce -~:.. J . . . ; -. . ... .. : :.~... . ': .. : : . \ -"-.---~-) I. : '. .... :. .:': . : I ,, I' . .. -~ . . ; '.t 't :, I ...... : . . f, . ' . . . .. . . ,. ,., .. f I . '! l i I ' ' o I \ , ......... I I t I REsoLU110N CONCERNING COMPU1'UISSD PERSONNEL .: . Pro. f . f u d N' Co . . . INfoRMAnON SYSTBMS AND DATA PRIVACY, SuBMnTBD. ; : . t~1on o MIDont~es o the m_te ations m~ . av MR. AHMID, WotUtERr. DELEGATB. PAKISTAN; ML .-: DUSSJon on Hwnan Rights, .: : ., : : .. ~: .;. <~ ... BENYA. WolUCERS' Dm.aoATB. AUSTRIA: Mu.. Cua. Consideria1 that the protection of the rights of .. :: '. : Woaaas-DBLEOATL ~ADA; Ma. Doi.AN, WoAICBRS' employ~ in, the workplace:against the misuse of ... ....... ... ,-: < 1, OeuOAn. AUSTJWJA: Ma. 'KARLSSON, Woauas.~ personnel data collected by employers raises specific : : .. OEI.EOATB.SWBDEN;Ma.MIIITA. WoRKERS'Der..EoATB. problems of importance to the lnte~tional Labour. .-:. ~:--r. INDIA Ma. MUHR. WoRK111rD1LE0AT1. FEDERAL. .Organisation, ,. .. :.: .... .-: ,.-_.,..~ :.:. .i I I 0 1 J t I ., t 0 REPUBLIC o,, GERMANY; Ma. SANCHEZ MAoAIUAOA. Considering also. that regulations governing the. : .. WolW.RS' DELEOATI, MEXl~O; AND MR. SVENN~SEN. . collection, use and disclosure of I personnel data .. : .. I .. r : : : WoRICERS'.OELSGA~.D~~ ... !_ :_ should be established bo~_by law. and.by collective .... ; .. .. .. : I aor~-ent I .. M .. .. .. .. ...a.a '.. . . :. ... .. ........ _,_ ' ~ The Oene~ !=onference 9~ ~e In~emational !'i. Invites the Governing, Body of the lntemational .. .. : : 1 -~ : : Labour Orgamsauon, . . .. . r Labour Office. . . .... : I ..... I. : ,J. : ': .:, ~: Noting the rapid wo!ld-wide growth in th~ uie. by .. ; \ (a)' to request; the Director-Gene~ to' day out.~-~~ ~? \: ~-: l i! ~mploye~ of co!Dp~t,nsed systems to _store .info~: :. s~uclies on the pro~le~ concemin1 the re4ula~ ,: :,. : i :~: .i:. :_i taon relating to mclivadual ~~ployees, . . .... . : . uo,;a of the collection, storaae and use by em!~ ..... :.-:. .: : / .Noting a1sothe increasing use of new technologies j .. ployen of-individually identiO.b~e data ~~ting. .. '::::..'~ .; to ~llect. data on individual. pe~~~-ao~ be. .-. to their employees;-. . : : :, ..: _! ;:,_.. .:,: : : :: hav1our, . : ,. :.: ..... -~ (b) to organise as soon.as poaible a'tripartite: .. ~--~.-.. ~-.. :-:.:: Considering the dangen to which freedom of: ..... meeting of experts to prepare.rules and guide-. .: ::= .. ~. wociation, freedom ~f expression, freedom of . . lines governing th~. reguJatioo_ of data privacy at ... -. : I: ~movement and privacy of the individual worker can . the workplace; .. 1 : ;, ~. .-r .. . ; ... : .!>e ex~ by the mis~ _of cosnp_~terised personnel -~ (c) .to include the question concerning the regula~:.:-:. :. : .... :: ; information systems~ . j : . tion of computerised personnel. infonnation sys-,, ; .. :--. \i' :: ; Streaing that any data on workers held by an i : tea. and data privacy. in ... the agenda of, a :~ :-: ., :.~ employer should be accurate, should be collected by.l .. ; forthcoming session of the ln~mational La~ur .'. : .-v_.-~ .. '.: .. fair means and should be restricted enti!ely t~ those. : .. .! Confere~ce with a. view to. the adoption. .. _o~ _.,, \ : .. ~; necessary for the. worker/employer relauons~ap, .'. appropnate antemational Jabour standards.: . :'., : :.~ ,' Stressing also.that the existenceof such data .. :. :.,. .. .. : .. I ..... .... ::.:- :.:.:.;: .. ".:.::, ,.: __ L.::.:::..'.,.j should t;e known to the individual worker and to the f .-:I worker representatives, and that such data should be :. freely available to the worker concerned for verifica.. "t tion, should be protected aaainst unauthorised access . ; .. 7 within the enterprise and should not be transferred to I:'~ 1 privateo_rg~isations or public-authori~~ .without.: BEST COPYA""ILABLE /I tbepenmssaoo of the work.er concerned, : : V/1 ~., Noting the work alrea~y carried' out in ~ther :: "'j intematioaal organisations in the field of data pri. f. ( vaq, notably the Convention of the Council of r::."1 Europe for the Protection of Individuals with regard I; :. to Automatic Processing of Personal Data, the .i Organisation for Economic Co-operation and Devel.. '. opment's Ouidclincs on the Protection of Privacy and 1 : 1 Transborder Flows of Personal Data, and similar . : pide-lines currently under discussion by the -Sub. 1 ; commissioa oa Prevention of Discrimination and :_'_,. t o --~, ~o ----.......,..._; .~1:..-.,,.,~."}""'~L9Q4"" .. 'M; e ... 1 .. ... sct . 4111t1.tll!llt!IIIII. l!llt. .. ,. 7.111!1'~ .'!'!II . """~~ """*~-.Z!9'". ,......,..<~ _.. '" .,. .... -

PAGE 130

t}t ... .............. -:.P : .... I be Iotemational Labour Office is tbe permanent secretariat of tbe 150-member International Labour Orpnisatio"9 a specialised agency associated with the 1aited Nations. This bulletin is publisllld fiv, limn a ytar. Volumt 21, No. 4, Octob,r 1985 Electronic spies threaten workers' privacy r .th nere's bllically aothina wroas wt daose tedmoloaical wonden whida boost prod11cdnty, dpt secarity or help end boria& work. ne trouble starts when tlaey ue ued to spy worken, invade their pmacy and dmdle penona1 data to any-body who presses tbe right key :J Thus some enterprises have introduced card-readers in place of door handles. To leave or enter their workplace emp~oyees must insen ID badges into an electroruc slot. The stated purpose is protection of the company's sensitive processes '?r secrets .. "You have a feeling that Bag Brother lS watching you," a union official complained. The computer even knows when you go to the toilet. A similar spectre looms in offices where word processors can, besides speeding up efficiency and improving working condi tions, produce daily statistics showmg _the number of operations performed., the ~e worked, the number of errors comm1tt~d and even graphs indicating operator capability on which to set performanc~ standards: Electronic spying on workers 1s bad, but 1t can be identified and remedies exist on the collective bargaining shelf. Invasion of worken' privacy is a more serious and more com plex matter. It is difficult to prove and effec tive antidotes are in a laboratory stage. Today details of a whole life can be squeezed on a few centimeters of tape. Hence the temptation and the risk to record personal information that is wholly irrelevant to em ployer-employee relationship .. Some data may be subjective based on dubious sources or secretly recorded by an unauthorised person. However, once they find their way into c<;>mputer memory they are later treated as obJec tive facts. The realisation of the danger is growing. A recent international opinion poll showed that 75 per cent of people interviewed in the United Kingdom feared computerised infor mation could invade personal privacy. ln France the figure was 71 per cent. in Norway 56 per cent. in the Federal_ Republic of Gc:_rmany St per cent. in Japan ,o per cent. and an . r approaches vary, legal provisions usually cover such aspects as the purpose of personaJ data collection. access to computerised information and restrictions on its disclosure, the right of individuals to verify their files and request changes. as well as penal sanctions for unau thorised divulgations or misuse of computer ised personal information. In Sweden anyone wishing to set up or operate a computerised filing system contain ing personal data must first. obtain a permit from a governmental authority which specifies the purpose of data collection and decides whether or not those who are registered in the file must be informed of its existence. Any individual has the right to obtain a printout of : his file and ask for rectifications if necessary. : In Italy access to personal data banks needs express authorisation of the judiciary. All civil servants who illegally use or divulge such information are liable to imprisonment. A British Data Privacy Act imposes obliga tion on employers to protect workers against misuse of data held in computers. It also gives data subjects" the right to apply to the couns for compensation in the case of incorrect use of personal computerised infonnation. Another common feature of the existing legislation in this field are restrictions imposed on access to and collection of data on race. religion. politics. affiliation to trade unions. co-operatives, cultural associations or any other legally recognised organisation. Questions of workers' privacy are increas ingly discussed at the bargaining table. A pace setting collective agreement was signed in 1984 at a General Motors subsidiary in Au stria stipulating the conditions under which the firm can deal with personal information on workers. It contains severe restrictions on disseminating employee data. some of which cannot be released without prior agreement of the trade union. the ILO survey reports. At the 1985 International Labour Confer ence several trade union leaders expressed the view that national measures against possible misuse of computerised personal data needed to be bolstered by international action on a tripanite basis. Earlier this year the ILO Advisory Commit tee on Salaried Employees and Professional Workers passed a resolution inviting the ILO to carry out studies with a view to establishing a compendium of principles and practices for safeguarding people s privacy at the workplace. Th~ ILO Governing Body at its next meeting in No.-ember will decide on the effect to be given to this proposal. .. / /Jj

PAGE 131

comtCIL OF EUROPE The Council of Europe, established in 1948 to draft and implement the European Convention on Human Rights, took its first initiative with regard to "privacy and the use of computers" in 1971. An expert group mandated to investigate "automated processing of personal data" suggested that new legislation was necessary in European countries and that the Council of Europe ''would serve a useful function by helping member states avoid unnecessary divergence between their laws on the subject." In 1972 a conference of European ministers of justice adopted a resolution calling for the CoE to "consider the possibility of elaborating a draft international convention (treaty) on the protection of 1>rivacy in view of the increasing compilation of personal data into computers." Personal Data Convention Ratified A decade later, the ministers of the 22 member governments opened a convention for the protection of personal data for signature. The agreement required ratification by five countries in order -.... ~. to come into force. On October 5, 1985 the convention became effective with Sweden, France, Spain, Norway and Luxembourg having ratified it. The convention embodies a number of fundamental principles of data protection, almost identical to those set forth in the OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data. -,-:-.. The Committee of Experts on Data Protection which prepared the convention, rather than disband when the convention had been approved, was instructed to consider more specific practices for various sectors or types of users of personal data. From 1980 to 1984 the committee completed recommendations on social science and direct research data, medical information,1mail and marketing data and social-security records. These recommendations are non-binding but usually seriously considered by governments when drafting or amending national data-protection legislation. Employment Sector Records Examined Th Committee's present activities involve personal data in police and law enforcement, employment and the "new technologies". The working party on the "use of personal data in the employment sector" distributed a questionnaire to _j member governments in 1985 "to learn of the texts of laws on regulations concerni:1g the collection and use of personal information within the framework of employer/ employee relations, in both the public and private sectors, as well as any important judicial decisions in this field." The questionnaire asks what personal /30

PAGE 132

details are normally collected, if limits are placed on collection of sensitive dat~ (such as data concem~ng political opinion, religious conviction, intimate life, race). for what purposes the information may be used, if it is disclosed to third parties, and whether ployees have access to their records. One item addresses "surveillance of employees," asking for details about "methods of monitoring, if there is (ployee) consultation before the introduction of such methods, and what forms of monitoring should be prohibited." The Working Party is expected to examine questionnaire results in March 1986 and then decide whether to simply prepare a report describing employee-record practices in Europe or draft a recommendation that may become the standard or model for collecting and handling of such data. It is recommended that OTA establish contacts with the Working Party to obtain the results of the questionnaires, which would contain useful materials from member countries. \ _./ -..........._,, ) i 14 Wt. AC .#.,4-...At,.~1;;9 (.14.4# ... -$} . 1.~ f #.*if4 .. . CJC .. _;_SS,41?( .. ?\J,4F.'A .. ~P-.. ,'l:C.W._.. ) ,? ; ; ,4.A ; .. :;;, ;.. z .a. {

PAGE 133

o - "' -, ,, ., J _., ....... ~. .... ._. ___ !" -I', ......... : -I -~ J PART VII OBSERVATIONS

PAGE 134

.. :-,. .. . OBSERVATIONS Surveying the national reports and the international union and intergovernmental activities, several main observations seem warranted: 1. No industrial democracy has adopted a conscious and comprehensive approach to employee privacy and worker monitoring through all of its various technological forms. Rather, issues are taken up on a topic-by-topic and situation-by-situation basfi, and generally with a prapmatic, accomodatfon-of-conflictingsoc1al-1nerests approach, within the social norms of that society and the specific le~al and industrial-relations mechanisms it has in place. No nation has under consideration a comprehensive approach to worker monitoring issues either, at this time. 2. The West German concept of "information self-determination" (from the Census constitutional decision of 1983), when linked with the "protection of the personality" and the "legitimate interest" or "purpose" principle for evaluating employer concerns, seems to offer the most explicit and up-to-date approach to balancing new-technology uses with evolvfn~ employee-privacy values. 3. The issue of worker monitoring is clearly being articulated and driven in public discussion by the trade unions. They have articulated a variety of bases for seeking bans or limitations on worker monitoring. These correspond to the five bases of social challenge to employer use of monitorin~ discussed in Part I of this report: a. Non-surveillance {"privacy"} b. Health protection (stress im~acts} c. Group solidarity (work group and union value) d. Struggle over employer "power" and "control" e. "Dignity" claim \~3 ----.. ............. ..,.. _____ .'\ -.~/

PAGE 135

. .i --.. -.- ... .,.,,. ....... -- .a 4. Given the shrinkage of union membership in most industrial democracies durin~ the past decade, the loss of prestige that unions have faced with the general public (and younger workers) in this same period, and the heavy pressures both leaders and the publics of industrial democracies feel to increase productivity and wuality-competitiveness in production, the influence of unions to win either collective bargaining or legislative bans on work-productivity monitoring seem quite limited in the near future. However, the fairness, openness, and "decency" with which employers conduct electronic work monitoring seems to be an issue that will prow, since it has the dignity, privacy, and health aspects that are stron~ values in most induJtrial democracies. Therefore, how employers use monitoring rather than whether they should be allowed to do this at all, may be the central issue that reaches beyond union advocacy. 5. As the uses of location-control, telephone-call-surveillance, and personnel-information-systems expand in the next decade, these will most likely generate public discussion and probably some lepal/regulatory action. It fs here that the data protection laws and commissioner activities of other industrial democracies are likely to prompt specfffc policies. A major issue will be what employers are actually dofna with these technologies. There is little empirfcal data on that issue, partly because these technologies are still quite new {or not used widely as yet)

PAGE 136

. . ~. . .. . ~..,. .. __ ..... _. --I . .... ,.,. .. .-.. BEST COPY AV,~HJ\S:.E RequNt for Rep :l~ 1. Numberof Coples: ____ 2. Numberof Paa:_ .. S:.._ __ 3. Reproduce Both Sides: /I( Yw. C No 4. Collate: ?4 YH C No S. Binding Method: C 3-Hole Punch;_ ; C Staple; CJ Bind In Seta; C Velo Bind; 1J. Perfect Bind; CJ No Binding I. Reduction Required: C Yes; es(No 7. DateNNdect: nme __ & Delivery: C WIii Walt C Call When Ready: Phone No. I. Special l~ructlon-g~ Side. :::tt\~r+ i,...,d,o "~ :. D~ e.~'4(.~ ............. r-q,c,,-~ \ re.~ ....... .., Total No. of Unite Q 5 ---.... __ -----------... ----~----------

PAGE 137

\ What Does Foreign Experience Suggest for the U.S.? Concentrating on electronic work monitoring~the centerpiece of the OTA inquiry --what does the experience in other industrial democracies have to suggest about U.S. policy choices? 1. Much of the struggle between unions and managements over individual work measurement and personnel decisions is a direct function of the bi-party, bi-pJlar, zero-sum-game nature of organized labor relations. This model of workplace administration --often called the "industrial democracy" model --is built upon assumptions of conflicting interest and of an inevitable tension between management's drive for increased control of work processes and workers and the union's protection of workers against unfair exploitation. In this context, the work-monitoring issue we have called the "struggle over employer power and control" is the driving force of the challenge to "Big Brother monitoring." Especially in the European and British-Conmonwealth nations, the key issue is the traditional, socially institutionalized political struggle over workplace authority applied now to the new setting of office systems technology. 2. This model is not close in either political or institutional elements to the great majority of U.S. offices in which VDTs are being installed. About 90-951 of.private-employer offices are not unionized. Perhaps 25-35% of local, state, and federal offices are union-represented. This means that the basic relationship of employee to employer in the great majority of U.S. offices is one in which there is no organized entity representing employees -no professional staffs to counter management-staff expertise; no continuing source of data collection independent of management about workplace condi) tions and effects; no union educational and mobilization process directed

PAGE 138

_.-:', at employees; no demand for advance notice to unions of technological change; J and clearly no institutionalized bargaining over the terms and conditions of work. And, union organizing efforts to create such bi-polar, organized re lationships in American offices have not had significant success during the first decade of office automation. If anything, dominant social trends suggest that the overhwleming majority of U.S. office workers do not feel a need for unions to represent their interests in working conditions --including issues such as work monitoring. This is tacitly recognized by the new thrust of the AFL-CIO's outreach to non-union workers --offering credit card options, insurance programs, legal services, and other non-representational benefits for joining unions. 3. Therefore, to the extent that the conflict over work monitoring in many other industrial dmocracies arises directly out of the bi-polar conflict model of labor relations, it has relevance only in the small minority of U .. S. offices where workers are union-represented. Even here, our field work at 10 such union-represented organizations, both public and private, suggests that it is the health effects dimension --the hannful stress created in some types of intensive VDT work by the combination of close monitoring, oppressive work quotas, and job insecurity --that most concerns American workers. Management's measurement of work per se, even with new electronic techniques and continu ously, is not seen by American workers as either an illegitimate method or a necessary threat to individual dignity, as is often the cultural norm of workers in European social democracies. In the U.S., we found the cultural / -~ nonn to accept employer work measurement on an individual basis, as long as it is fair, takes into account qualitative as well as quantitative aspects of the job, helps produce objective comparisons among workers for allocation l37

PAGE 139

-~ ., j) of special rewards (premium pay, promotion, etc.), and is conducted in an open, "due process oriented" process. 4. It is also important to observe the effects that office systems technology is having on the nature of office jobs, and how this may affect the "union model" of no-individual-measurement. The large mass of clerical workers doing data entry and customer service work is steadily being divided into two sectors of VDT operations: one sector with highly-repetitive and low-skill keyboarding, lt\w-level customer-relations and low-discretion claims processing and a second sector of higher-level customer-service and claims analysis work. The former types of jobs are the closest to the "office factory" milieu --production work, measured output, low pay, quota-based supervision, etc. --and the jobs where union appeals against oppressive, high-stress monitoring would seem to have the greatest potential. However, it is precisely those jobs that are most likely to ~e significantly reduced by advancing computer and conununication technologies, and by employer business trends. Optica~ scanning and direct customer-input from their premises are already reducing the data entry sector; along with the shifting of such work from urban locations to exurban U.S. sites or to off-shore production, there may be a steadily diminishing set of jobs for U.S. unions to address on the "close monitoring" issue. This leaves the second sector --customer-service and higher-level claims analysis jobs. If U.S. employers were to apply a heavy-handed Taylorist approach in collecting and using individual measurements in these jobs, this could become a potential sector for unions to raise the banner of "anti-Big-Brother-monitoring." While some private and public employers may adopt such practices, the importance of quality elements in satisfying customers or citizens in VDT-based jobs provides IJf ----~--~------~---------

PAGE 140

a strong element of business or government-service self-interest that works against the Taylorite tendency in most employment settings. 5. Recent experiments in employee involvement and quality-circle participation are sometimes cited as the "U.S. answer11 to those urging that the European/British model of trade unionism or government-intervention is needed to avoid "oppressive work monitoring." While the use of employee participative mechanisms has not been as common in U.S. offices as it has been in factory settings, such mechanisms have been growing in the past 5-10 years in office work. Almost 40% of the 110 ornanizations we examined in late 1985 and early 1986 were using employee participation in various aspects of their VDT opera tions, from involvement in equipment selection to job-design or work-organization matters. However, American labor laws limiting employer associations, the absence of any non-union institutional fonns for such efforts, and a lack of enthusiasm by managements for meaningful employee participation in many white collar sectors are factors that have, thus far, kept employee participation from being the dominant model in office work. This is especially true at the clerical and administrative levels where work monitoring is most often practiced. This suggests that making work monitoring acceptable to most VDT clerical and administrative employees through participative mechanisms is not yet the pre vailing practice among American employers, and may not become so in the near future. This makes the future of work monitoring practices as a potential source of employee discontent less easy to predict than if the grievance resolving presence of meaningful employee participation programs could be taken as the emerging trend in U.S. offices. 6. Finally, on government interventions in foreign nations of either the quality-of-worklife or data-protection type being applied to U.S. work monitor ing, there are no signs that we have seen of either a need for such action /,Jf

PAGE 141

\ j '-i,o \ being perceived by U.S. policymakers or the desirability of U.S. governments adopting a pro-active role in these areas being registered in national public opinion. The situation here is quite unlike the worker's right-to-know movement. There, U.S. unions convinced the public and policymakers that legislation was indeed needed to disclose the identity of chemicals being used in production, and to provide a process by which harm and potential harms at the workplace could be identified by workers and their representatives before the "gravestone count" indicated problems were present. As a result, state right-to-know laws have been enacted in several dozen states despite the general "anti-regulatory" mood of the electorate. The inability of proponents to win enactment of anti-monitoring laws reflects, we believe, their inability to demonstrate the presence of widespread and harmful health effects as a result of VDT work, or to convince lawmakers and the public that collecting output data and using it for personnel administration is a violation of U.S. privacy norms. ..I 7. The observations made above should be read in tandem with the parallel report we submitted to OTA on work monitoring techniques, practices, and policies in the United States, historically and today. In that report, and in the observations we have just made, our judgment is that the approaches and experiences that trade unions and some government bodies in other industrial democracies have taken toward work monitoring are not in basic harmony with American employee values, U.S. legal and institutional approaches, or the general directions of American public opinion. Therefore, U.S. approaches to VDT work monitoring ought to be developed with the sense that there is more difference than similarity with our sister democracies on this issue.

PAGE 142

-. ~! -What Does Foreign Experience Suggest for the U.S.? Concentrating on electronic work monitoring~the centerpiece of the OTA inquiry --what does the experience in other industrial democracies have to suggest about U.S. policy choices? 1. Much of the struggle between unions and managements over individual work measurement and personnel decisions is a direct function of the bi-party, bi-polar, zero-sum-game nature of organized labor relations. This model of workplace administration --often called the "industrial democracy" model --is built upon assumptions of conflicting interest and of an inevitable tension between management's drive for increased control of work_processes and workers and the union's protection of workers against unfair exploitation. In this context, the work-monitoring issue we have called the "struggle over employer power and control" 1s the driving force of the challenge to "Big Brother monitoring. u Especially in the European and British-Conmonwealth nations, the key issue is the traditional, socially institutionalized political struggle over workplace authority applied now to the new setting of office systems technology. 2. This model is not close in either political or institutional elements to the great majority of U.S. offices in which VDTs are being installed. About 90-951 of.private-employer offices are not unionized. Perhaps 25-351 of local, state, and federal offices are union-~epresented. This means that the basic relationship of employee to employer in the great majority of U.S. offices is one in which there is no organized entity representing employees -no professiona-1 staffs to counter management-staff expertise; no continuing source of data collection independent of management about workplace condi tions and effects; no union educational and mobilization process directed 1 Lf \ -----------.... -.. ,---'\ _./ _, ..

PAGE 143

-; I \ at employees; no demand for advance notice to unions of technological change; and clearly n~ institutionalized bargaining over the tenns and conditions of work. And, union organizing efforts to create such bi-polar; organized re lationships in American offices have not had significant success during the first decade of office automation. If anything, dominant social trends suggest that the overhw1eming majority of U.S. office workers do not feel a need for unions to represent their interests in working conditions -including issues such as work monitoring. This is tacitly recognized by the new thrust of the AFL-CIO's outreach to non-union workers --offering credit card options, insurance programs, legal services, and other non-representational benefits for joining unions. 3. Therefore, to the extent that the conflict over work monitoring in many other industrial dmocracies arises directly out of the bi-polar conflict model of labor relations, it has relevance only in the small minority of U.S. offices where workers are union-represented. Even here, our field work at 10 such union-represented organizations, both public and private, sugges.ts that it is the health effects dimension --the hannful stress created in some types of intensive VDT work by the combination of close monitoring, oppressive work quotas, and job insecurity --that most concerns American workers. Management's measurement of work per se, even with new electronic techniques and continu ously, is not seen by American workers as either an illegitimate method or a necessary threat to individual dignity, as is often the cultural norm of workers in European social democracies. In the U.S., we found the cultural nonn to accept ~~ployer work measurement on an individual basis, as long as it is fair, takes into account qualitative as well as quantitative aspects of the job, helps produce objective comparisons among workers for allocation __,. _____ __,._..,.-~ -,.-----.. -------

PAGE 144

of special rewards (premium pay, promotion, etc.), and is conducted in an open, "due process oriented11 process. 4. It is also important to observe the effects that office systems technology is having on the nature of office jobs, and how this maJ affect the 0union model" of no-individual-measurement. The large mass of clerical workers doing data entry and customer service work is steadily being divided into two sectors of VDT operations: one sector with highly-repetitive and low-skill keyboarding, low-level customer-relations and low-discration claims processing and a second sector of higher-level customer-service and claims analysis work. The fomer types of jobs are the closest to the "office factory" milieu --production work; measured output, low pay, quota-based supervision, etc. --and the jobs where union appeals against oppressive, high-stress monitoring would seem to have the greatest potential. -~ ,.J ""' However, it is precisely those jobs that are most likely to be significantly ../ reduced by advancing computer and co111111nication technologies, and by employer business trends. Optical scanning and direct customer-input from their premises are already reducing the data entry sector; along with the shifting of such work from urban locations to exurban U.S. sites or to off-shore production, there may be a steadily diminishing set of jobs for U.S. unions to address on the "close monitoring" issue. This leaves the second sector --customer-service and higher-level claims analysis jobs. If U.S. employers were to apply a heavy-handed Taylorist approach in collecting and using individual measurements in these jobs, this could become a potential sector for unions to raise the banner of "anti-Big-Brother-monitoring." While same private and public employers may adopt such practices, the importance of quality elements in satisfying customers or citizens in VDT-based jobs provides .. -.J 11/3

PAGE 145

a strong element of business or government-service self-interest that works against the Taylorite tendency in most employment settings. S. Recent experiments in employee involvement and quality-circle parti cipation are sometimes cited as the "U.S. answer" to those urging that the European/British model of trade unionism or governrnent-fntervent1on 1s needed to avoid "oppressive work monitoring. 11 While the use of employee participative mechanisms has not been as conmon in U.S. offices as ft has been fn factory settings, such mechanisms have been growing in the past 5-10 years in office work. Almost 40S of the 110 organizations we examined in late 1985 and early 1986 were using employee participation in various aspects of their VDT opera tions, from involvement in equipment selection to job-design or work-organization matters. However, American labor laws limiting employer associations, the absence of any non-union institutional fonns for such efforts, and a lack of enthusiasm by managements for meaningful employee participation in many white collar sectors are factors that have, thus far, kept employee participation from being the dominant model in office work. This is especially true at the clerical and administrative levels where work monitoring is most often practiced. This suggests that making work monitoring acceptable to most VDT clerical and administrative employees through participative mechanisms is not yet the pre vailing practice among American employers, and may not become so in the near future. This makes the future of work monitoring practices as a potential source of employee discontent less easy to predict than if the grievance resolving presence of meaningful employee participation programs could be taken as the emerging trend in U.S. offices. 6. Finally, on government interventions in foreign nations of either the qua11ty-of-work11fe or data-protection type being applied to U.S. work monitor ing, there are no signs that we have seen of either a need for such action

PAGE 146

being perceived by U.S. policymakers or the desi'rabil ity of U.S. governments adopting a pro-active role in these areas being registered in national public opinion. The situation here is quite unlike the worker's right-to-know movement. There, U.S. unions convinced the public and policymakers that legisla tion was indeed needed to disclose the identity of chemicals being used in production, and to provide a process by which hann and potential harms at ,-' the workplace could be identified by workers and their representatives before the Hgravestone count indicated problems were present. As a result, state right-to-know laws have been enacted in several dozen states despite the general "anti-regulatory" mood of the electorate. The 1nab11 ity of proponents to win enactment of anti-monitoring laws reflects, we believe, their inability to demonstrate the presence of widespread and harmful health effects as a result of VDT work, or to convince la\lallllkers and the public that collecting output data and using it for personnel administration is a violation of U.S. privacy nonns. 7. The observations made above should be read in tandem with the parallel report we submitted to OTA on work monitoring techniques, practices, and policies in the United States, historically and today. In that report, and in the obser vations we have just made, our judgment is that the approaches and experiences that trade unions and some government bodies in other industrial democracie~ have taken toward work monitoring are not in basic hannony with American employee values, U.S. legal and institutional approaches, or the general directions of Amer;can public opinion. 'Therefore, U.S. approaches to VDT work monitoring ought to be developed with the sense that there is more difference than similarity with our sister democracies on this issue. .:-\ .. _.../ ... .../


xml version 1.0 encoding UTF-8
REPORT xmlns http:www.fcla.edudlsmddaitss xmlns:xsi http:www.w3.org2001XMLSchema-instance xsi:schemaLocation http:www.fcla.edudlsmddaitssdaitssReport.xsd
INGEST IEID ESEDFNX8M_9YKUBR INGEST_TIME 2017-06-05T17:07:50Z PACKAGE AA00055679_00001
AGREEMENT_INFO ACCOUNT UF PROJECT UFDC
FILES