Like too many employment law issues in Australia, the answer is that: “it depends”.
The rise of the personal smart phone
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When I was a young man, it was common for employers to issue employees with IT-approved “work” phones. Many of us had two phones: one for business, and another for personal calls.
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These days, it seems like many (if not most) private practices no longer provide staff with phones. Instead, employees access their employers’ email and other systems through their own, personal smart phones.
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Like most speech pathologists, on my phone, I have a mixture of business and personal information contained in emails and through various client and IT management systems accessible through apps. My employees are in the same boat.
Work information belongs to employers
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Information employers provide to staff during the course of their employment belongs to employers.
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Client information is, of course, confidential. Express and implied terms of employment protect employers’ ownership of that information, even if it is stored on an employee’s phone.
Read your contracts and workplace policies
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There is no general legal right for an employer to search an employee’s phone. But employers can take steps to ensure employees are meeting their obligations under their employment contracts and workplace policies.
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Employers can only inspect employees’ phones if:
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they have an express right to do so under:
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an employment contract; or
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a workplace policy (e.g. an Acceptable IT Use Policy, or Investigations Policy, or Code of Conduct); and/or
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where they instruct an employee to hand over their phone and it is a “reasonable and lawful instruction”.
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Workplace investigations and privacy considerations
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Employers will have good grounds for instructing an employee to hand over their phone for inspection if they have reasonable grounds to suspect that evidence of a breach of a workplace policy, employment contract and/or other misconduct will be found on the phone, e.g. that the employers’ intellectual property or confidential information has been stolen, or that workplace safety or anti-discrimination laws have been broken.
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Because an employee’s phone will probably contain personal information about the employee that has nothing to do with work, employers need to think about the Privacy Act 1988 (Cth) when accessing an employee’s phone. But exemptions exist for “employee records” and also where the employer “has reason to suspect unlawful activity or misconduct of a serious nature” and “reasonably believes that the collection or use is necessary to take appropriate action”, which, together may cover most of the employment-related material of interest to the employer. (Remember that the Privacy Act applies to private practices of any size, because we are health businesses.)
The employer owns the work WiFi system
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The employer owns the practice’s WiFi system, and so will have the right to monitor employee access to practice systems using personal devices. But care needs to be taken to comply with State and Commonwealth workplace surveillance laws. For example:
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in NSW, employers cannot carry out surveillance of an employee’s phone/computer without prior notice in writing and a policy (see s10 of the Workplace Surveillance Act 2005 (NSW)); and
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under Commonwealth laws, employers have to notify employees of any listening to or recordings of workplace communications, including phone calls and emails (Telecommunications (Interception and Access) Act 1979 (Cth)).
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The Federal Court held in Griffiths v Rose [2011] FCA 30 that an employer’s monitoring of its employees use of work-provided IT equipment to ensure compliance with the employer’s code of conduct, was lawful under the Privacy Act. Logically, some lawyers think this would apply to an employee’s use of a personal device via the practice WiFi system.
Bottom line
Employers and employees should review their employment contracts and workplace policies to assess whether employers have the express right to access employees’ phones and, if so, in what circumstances. If there is a workplace investigation into an employee’s conduct, it is very common for the employee to be asked to give the employer access to his/her phone for the purposes of conducting the investigation. When an employee refuses, the key legal issue is whether the request was lawful and reasonable in the circumstances. Employees should be aware that, generally, employers own information created by employees during the course of their employment, and own workplace WiFi systems.
Disclaimer: The information in this article is for general information purposes only and is not legal advice. This article is current as at the date of its publication. This article does not constitute any kind of legal advice, opinion or recommendation about rights, obligations, remedies, defences, options, or strategies. It cannot be relied on by any person for any purpose. If this article raises any issues for your practice, you should seek independent legal advice based on the facts and circumstances of your situation.
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Key source: De Flamingh, J. & Magness, P. (2018). The limitations of a modern day bag search. Law Society Journal, 48(76-77).
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