The rise in working from home and artificial intelligence has driven a sharp rise in workplace surveillance, with Australian laws struggling to keep up, a new report has found.

The University of Technology Sydney’s Human Technology Institute this week released the report on “surveillance creep” investigating the products and tools on offer to employers to observe, track and assess their workers, arguing laws need to be updated to protect the rights of employees.

It found the rapid shift to hybrid and remote work during and following the COVID-19 pandemic, coupled with the rise of generative AI technology, has led to a huge uptick in the surveillance of workers in ways that may breach human rights.

This is a major concern for Australian workers, with a recent survey finding that three-quarters of respondents think that workplace surveillance should not be used unless it is clearly communicated and strictly necessary for job requirement.

From wearable neurotechnology to sophisticated spyware

The report outlines a wide range of tools that are now available, including email tracking software, sophisticated spyware, wearable neurotechnology, audio recordings of laptops, and tools that assess facial expressions using AI.

Some tools claim they can draw inferences about a worker’s performance based on their biometrics and other personal information, as well as their emotional or physical state, while facial and speech recognition software analyses tones of voice.

According to the report, Fujitsu has developed an AI model that claims it can measure how much a person is concentrating while working, based on facial expressions.

“These tools are capable of more pervasive and intrusive surveillance: workers’ homes, bodies and emotions are all capable of being observed and assessed,” the report said.

“For people working from home or outside of a conventional workplace, the boundaries between work and home are eroding as surveillance is used to peer into workers’ private spaces and family life.”
Survey respondents were most concerned about audio surveillance, live screen monitoring and emotion recognition technology.

The impact on workers

The report warns that surveillance technologies can blur the boundary between work and home, expose highly personal information and lead to a near-total loss of privacy.

“Some of the new forms of worker surveillance are unprecedented in how they intrude on workers’ private lives,” Human Technology Institute co-director professor Edward Santow said.

“Australian workers expect employers to conduct reasonable monitoring to make sure they’re doing jobs safely and well, but they’re deeply concerned when employers go beyond this into highly intrusive surveillance,” he said.

The report argues there is an “urgent need” for reform, describing current laws as inadequate.

“Our laws are complex, ambiguous and contain important gaps in worker protections – making reform urgent and important,” it said.

“Urgent action is needed to protect workers from the harms of unreasonable surveillance, and guide employers to adopt practices that meet their business needs without harming their workers.”

Worker monitoring is currently governed by what the report calls a “complex, confusing and gap-ridden patchwork” of federal, state and territory privacy laws, workplace surveillance laws and work health and safety regulations.

“These laws haven’t kept pace with the rise of AI and related technologies, or new working arrangements since the pandemic,” the report said.

Reliance on consent

A central weakness in the current framework, the report argues, is its reliance on employee consent — often through broad disclosures or clauses in employment contracts.

“Workers are often taken to ‘consent’ to highly intrusive surveillance when they sign their employment contract,” Human Technology Institute senior responsible technology policy specialist Sarah Sacher said.

“But these contracts are often vague about what forms of monitoring are used.

“Consent cannot be free and informed when a person’s job is hanging in the balance.”

Santow said that the laws are currently “complicated and dangerously out of date”.

“Too often employers simply don’t know where the line is between lawful monitoring and unlawful surveillance, and workers don’t have robust protections where an employer engages in harmful surveillance,” he said.

The report called on the federal government to clearly spell out what is “fair and reasonable” in legislation when it comes to worker monitoring.

The Victorian government recently backed the recommendations from an inquiry into workplace surveillance, and agreed to develop new legislation that will require it to be reasonable and proportionate, and for workers to be given two weeks’ notice of any new surveillance.

The New South Wales government has also introduced legislation cracking down on the use of artificial intelligence and automated systems to allocate work.