Employers will need to be prepared for close scrutiny of enterprise agreements that use a “small group” or “seed group” approach, following a number of recent developments in enterprise bargaining. The recent Federal Court decision in CFMEU v One Key sounds a cautionary note for the “seed group” strategy that some employers have been using in recent years.

In recent blogs, we have been looking at recent trends in enterprise bargaining including issues about how the group of employees covered by an agreement is selected. The trends include:

  • unions seeking to undermine enterprise agreements made without union involvement
  • the Federal Opposition’s proposal to prohibit enterprise agreements where the voting population is not “representative” of the agreement’s potential coverage.

The One Key case highlights the intersection of these developments and provides an example of how some enterprise agreements can be “undone” even years down the track.

What is the “seed group” strategy?

At a high level, the strategy involves an employer engaging with a small group of employees to make an enterprise agreement that will potentially cover a much larger group of workers in the future. The goal is this: establish an enterprise agreement on suitable terms which creates stability for up to four years, and can be rolled out to a larger workforce as recruitment “ramps up”.

How has the strategy been attacked by unions?

The strategy has seen some success, but has been the subject of attack from unions. Indeed, the CFMEU has said that it will “relentlessly” target deals to which it objects, and has attacked agreements made with “seed groups”.

Previously, one avenue of attack was to argue that such an agreement failed to meet the requirement that the group of employees covered be “fairly chosen”. That avenue was effectively closed in a case concerning John Holland, where the Federal Court said that there was nothing inherently wrong with a small group of employees voting on an agreement which might subsequently cover many more employees. The Court also said that the “fairly chosen” requirement does not mean that the group of employees had to be chosen in a “manner which would not undermine collective bargaining”.

A different line of attack was used in One Key, where it was argued that the relevant enterprise agreement had not been “genuinely agreed to” by the relevant employees. The Federal Court accepted that argument and determined that the enterprise agreement must be set aside (even though it had been in force for 2 years) because:

  • the agreement had been voted on by three employees with very “confined” employment experience; and
  • the three employees represented only a small sub-set of the group of employees who would be covered by the agreement – the three voting employees were covered by mining and construction awards, whereas the coverage of the agreement extended to future employees who would be covered by 11 different awards including those in the hospitality, road transport and manufacturing industries.

What does this mean for bargaining with seed groups?

Importantly, the Federal Court has not said that an enterprise agreement can never be made with a small group of employees that ultimately might cover a much larger cohort. However, the One Key decision does suggest that an employer may encounter difficulty if the employees who vote are not broadly representative of the range of different employees to whom the agreement will apply in the future.

In this way, the One Key decision emphasises that, unlike Jack trading the family cow for beans, there is no “magic seed” which will give employers quick and easy access to untold riches. While seed group agreements are legitimate, employers will still need to carefully consider the scope of an agreement and understand that a close examination will be made of whether the group of employees who vote is “representative” of the potential coverage of the agreement. This will be particularly important for agreements that cover multiple occupations and industries.

At a broader level, the debate remains whether enterprise bargaining is actually delivering a system of regulation of terms and conditions which are meeting the needs of employers and employees. That employers are seeking to adopt these strategies, and that debate has to be had about whether such a strategy is “legitimate” or not, does tend to suggest that the entire system needs to be revisited, rather than tinkered with.


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Trade union conduct is constantly changing, and our team have observed trends that are reshaping the boundaries, and that have already begun to impact our clients.

Policy Measures: increased scrutiny on trade union conduct

On the policy front, the conservative government has implemented three measures addressing unlawful behaviour by unions and their members based on the findings of former High Court Justice John Dyson Heydon AC QC in the Royal Commission into Trade Union Governance and Corruption in 2015.

Two key measures passed in late 2016.

The Australian Building and Construction Commission (ABCC) has been reformed and is expected to repeat the effective reform of union practices achieved by the previous ABCC in the mid-to-late 2000’s. The ABCC regulates building and construction industry participants its functions include implementing a code of practice to regulate workplace practices and taking action to prosecute breaches of workplace laws. Sanctions can be imposed to exclude companies from tendering for government funded building work. The return of the ABCC has generally been welcomed by the construction industry.

A new regulator was introduced. The Registered Organisations Commission (ROC) was established to enhance governance and financial accountability of trade unions following multiple findings of misuse of union funds. The regime draws upon statutory duties placed upon company directors under Australia’s corporations law. Financial reporting and disclosure obligations have been strengthened, and penalties for non-compliance have increased, including criminal offences for serious breaches. New whistle-blower protections have also been introduced.

Further new laws have been proposed to prohibit making or receiving corrupting payments at the direction of unions, bringing greater accountability to unions and their office holders.

Novel application of anti-bullying protections

A recent decision of the Fair Work Commission (FWC) in its anti-bullying jurisdiction provided a novel application of existing law to address unlawful behaviour by unions in industrial disputes. The decision recognises that abusive or offensive conduct directed at other workers won’t be excused in the heat of industrial battle.

The catalyst for the dispute was a change of contractor providing maintenance services at the site on terms opposed by the unions. The dispute was heated, and a picket at the site continued for almost six months. Drawing on the power to name and shame, the union-led campaign included extensive use of social media (some against individual workers), a boycott of the targeted company’s products and fundraising activities.

A key priority for the new contractor was to protect its workers from being bullied at the site and on social media. The FWC made orders against unions and officials to restrain conduct directed at workers entering or leaving the site during the dispute.

The FWC orders prevented:

  • photographing, filming, or digitally recording any of the workers (or attempting to do such things);
  • abusing or harassing workers, including calling out offensive or insulting names, including “scab” or “dog”;
  • accosting or obstructing workers;
  • holding up any signs or material at the picket which contain offensive or insulting language towards the workers; and
  • approaching a worker, any vehicle driven by a worker or a vehicle in which a worker is a passenger.

The FWC determined it appropriate to make orders protecting the identities of workers seeking orders. This should provide comfort to workers subjected to similar tactics in future.

This matter represents the first time the FWC has made anti-bullying orders against a union and picketers in relation to protest activity and represents a novel and effective use of the FWC’s anti-bullying jurisdiction by employers. Before this decision, the FWC’s anti-bullying jurisdiction, which commenced in 2014, has most often been used by individual employees against employers and managers.

Traditional employer responses to picketing have involved seeking injunctions to stop such activity, which can be time consuming and costly. The FWC’s anti-bullying jurisdiction supplements these options with a quick and cost-effective alternative to counter intimidation during union organised picketing.


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The gig economy is only one of the reasons that workers of the future will not have close connections with one employer or business – another is the movement towards arranging their life so that they spend substantial periods of time not working at all.

The trend towards regularly spending long periods of time away from the workforce is highlighted in an article by Christine Long in the Sydney Morning Herald considering people who only work a few months of the year, and the renowned demographer Bernard Salt’s column in The Australian that looks at changes that millennials will bring to the workforce. Both identify movement towards:

  •  workers wanting to spend significant time doing other things – beyond the traditional two year stint in London, many millennials (and even Gen-Xers) want to spend months every year travelling or pursuing personal interests. Workers no longer feel a need to hold down a steady job the whole year or to take only four weeks leave per year
  • to achieve that goal, workers seek flexibility by negotiating specific employment arrangements or engaging with businesses strictly on their own terms – eg establishing their own service business and working where and when (and for how long) they choose
  • for the above reasons, workers will interact with organisations on a sporadic basis – they will not have long-term or even regular engagements with one business.

The stability employees once sought through steady employment with large companies, to support nuclear families, will be relegated to the history books for an ever increasing number of Australians. And as more and more millennials enter the workforce, we will continue to see business practices needing to adapt to these changes.

As we‘ve mentioned, substantial legislative reform will be necessary to make sure that these developments are properly catered for – and balanced against social expectations about minimum wages and other entitlements.

But, how will your organisation cope in the meantime? From our work with clients, and our own experience starting from the ground up in Australia four years ago, we have identified a need to:

Consider business need before engagement. Mindful of the nature of your business, your legal risk profile and appetite for change, consider if your current business need can be properly supported with workers taking substantial periods away. Carefully examine whether it is best to engage such workers as independent contractors or employees and if you’re ready for the administrative overheads involved in a change to the way workers are engaged.

Think about how the arrangements will work in practice. You need to examine the legal implications of the treatment of time away from work. If you use employment arrangements, consider how unpaid leave can be handled, as there may be impacts on length of service (which may impact things like accrued leave and access to unfair dismissal). Think about ways you might be able to build connection and loyalty so that the worker is willing to be there for you at short notice.

Re-visit your contracts and workplace policies. You will need to ensure your contracts and policies clearly and comprehensively deal with the organisation’s expectations about long-term absence and when it is prepared to enter into flexible arrangements, preferably at the organisation’s discretion.

Business continuity. While no business is assured continuity, you must consider how you will manage operations on critical processes and projects when workers want to take substantial periods away, including how you will achieve satisfactory knowledge transfer. You will need to look at whether you can support business continuity by covering long periods of absence with another flexible worker – including, perhaps, using job share arrangements or short-term engagements.

On-boarding and off-boarding. Resources should be allocated to processes to on-board and off-board workers on these arrangements. For roles that have critical safety risks, you must ensure you fully understand your duties to protect yourself from legal risk.


Our ‘future of work’ series has been considering how businesses will need to grow and adapt to changes to the way in which work will be performed in the future. Many of these developments flow from significant advances in technology that we have seen over the last 20 years – for example, increased automation, increased use of robotics and increased computing power have made many traditional roles redundant, while Increased communications potential has meant that many workers can perform their roles flexibly. We understand these developments as the law firm known for our role in transformational legal industry and labour and employment issues, we believe it is our responsibility to harness our knowledge, experience and relationships to forge a path for the Future Employer.

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We have been watching with close interest the exponential expansion of crypto-currencies. These instruments, such as Bitcoin, Ethereum and Litecoin, are methods of secure, electronic transfer of value between individuals using advanced digital encryption techniques – without any central regulation by government.

Recent research published by The Conversation suggests that crypto-currencies are showing no signs of being merely a speculative bubble. With their recent translation from purely online origins into tangible interfaces, for example, the establishment of Bitcoin ATMs in Australia, employers need to consider not only the future of work, but the future of the ways in which businesses will be able to, or might want to, reward contribution.

While crypto-currencies remain in their infancy, the likely speed of growth of direct, electronic-based, decentralised, financial interactions between individuals mean that they are likely to grow in relevance as consumers become more comfortable and familiar with their use – and possibly overcome their fear!

As more transactions occur in crypto-currencies, businesses may find that they collect some of their revenue in crypto-currency or that their contributors ask to receive reward in crypto-currency. In both these scenarios, the business will be under pressure to use a currency that may be rather different to what they have been used to.

But what does this mean for the way in which a business will interact with its contributors? There are two separate groups of contributors that need to be considered at the moment:

  1. where a business employs a worker in Australia, a business will generally need to pay the worker in “cash” for the work they have performed, as result of particular provision in the Fair Work Act. This provision was originally designed as a protective system for employees – it prevents an employer trying to implement a system where an employee is paid “in kind” a prohibition which originally from the old UK “Truck Acts”, preventing employers paying employees in goods (but that’s for a future blog to explore). Payments in kind present obvious challenges in relation to the value that is placed on the good or service that the employee would receive – requiring cash payment reduces the prospect that the employee might be short-changed.
  2. where a business engages a worker as an independent contractor, there is significantly less regulation in Australia. There are no express prohibitions on businesses giving contractors reward in something other than cash – arguably reward could be given in Bitcoin or other crypto-currency.

Obviously, as crypto-currencies become more widely accepted (though the total market capitalisation across crypto-currencies already well exceeds USD 100 billion), we may see the employment legislation develop to allow alternative payment methods – but this may well be a decades-long evolution rather than a Che Guevara style revolution.

Importantly, though, viewing the workforce through this lens reflects the trend we are seeing – as the basis on which the workforce is engaged shifts over time away from traditional employment and towards independent contractor gigs, it is likely that even without legislative reform, businesses will have increasing flexibility in the way they pay for the services that are provided.


Our ‘future of work’ series has been considering how businesses will need to grow and adapt to changes to the way in which work will be performed in the future. Many of these developments flow from significant advances in technology that we have seen over the last 20 years – for example, increased automation, increased use of robotics and increased computing power have made many traditional roles redundant, while Increased communications potential has meant that many workers can perform their roles flexibly. We understand these developments as the law firm known for our role in transformational legal industry and labour and employment issues, we believe it is our responsibility to harness our knowledge, experience and relationships to forge a path for the Future Employer.

Subscribe to receive the next blog in our Future of Work series direct to your inbox.

One of the more interesting recent developments in relation to work has been the continual rise and development of the gig economy – that is, workers developing niche areas of specialist expertise, but having careers characterised by a series of interactions with various organisations, rather than being employed by one company for many years. This doesn’t just mean a person working in multiple jobs over the course of their life, but that they are much more likely to be running their own independent business providing services to customers.

Over the last 15 – 20 years, many businesses have made the distinction between core and non-core functions, using that distinction to drive and make judgment calls about the nature and form of their relationships with those contributing to their business (including employees, contractors, suppliers or others). With the development of the gig economy, businesses will need to be more sophisticated in their analysis, taking a much more fundamental and holistic view of how they want the business actually to operate – entrepreneurs, leaders and managers need to consider how the emerging gig economy will impact on the structure of the business’s relationships with its contributors.

So, how can your business make the most of the opportunities that a gig economy offers, while also managing the legal, reputational and business risks of dealing with multiple independent contractors?

Employment and industrial law may be slow to catch up with these developments – indeed, it has only been within the last five to seven years that the industrial tribunal in Australia revisited the whole way in which awards work (with the result that a simplified system has been developed, albeit one still focussed on a traditional employment model). But sophisticated businesses with an eye on long-term success will be looking at a range of issues now to make sure they are ahead of the gig movement:

  • how to ensure that customer experience (“CX”) remains consistent over time if customers interact with different personnel each time (perhaps, for example, by using CX metrics as part of the contractor reward system)
  • how to ensure that the business is properly resourced and able to respond to urgent customer demands with a workforce that does not necessarily have any particular loyalty
  • which labour markets the business will use to source gig workers – will we have a “Beta vs VHS” winner or live with an “Apple vs Android” solution? Will the business accept the standard terms associated with using markets like Airtasker?
  • whether to develop a standard form for the engagement of contractors/gig workers, and how to ensure that the right type of engagement is used in each circumstance
  • how safety systems and processes need to adapt as the pendulum swings from workers being employees to workers only lightly touching the periphery of the business from time to time – will you need to re-evaluate your risk profile?
  • how the legal risks associated with gig workers are managed and ensuring that systems insulate the business as far as possible from legal claims, such as sham contracting
  • the increased interest by regulators in how businesses are interacting with their workers.

Our ‘future of work’ series has been considering the ways in which businesses will need to grow and adapt to changes to the way in which work will be performed in the future. Many of these developments flow from significant advances in technology that we have seen over the last 20 years – for example, increased automation, increased use of robotics and increased computing power have made many traditional roles redundant, while Increased communications potential has meant that many workers are able to perform their roles flexibly. We understand these developments as the law firm known for our role in transformational legal industry and labour and employment issues, we believe it is our responsibility to harness our knowledge, experience and relationships to forge a path for the Future Employer.

Subscribe to receive the next blog in our Future of Work series direct to your inbox.

Enterprise bargaining is down. That’s the big call out from the Department of Employment Report on Enterprise Bargaining February 2017. Comparing private sector agreement numbers from 2014 there is a reduction by a third overall, with close to 50% less in retail and construction and around 20% in most sectors.

As a result, the number of employees covered by current agreements (ones that haven’t expired) has declined. The decline is felt in respect of both union and non-union agreements.

If fewer agreements are being made or perhaps, more accurately, are taking longer to be replaced, why? The economic environment has a big part to play particularly in some key sectors. Unions are finding it harder to secure deals – obviously. Is this a function of the economic environment or is it a function of a longer more systemic trend borne out of declining union density, and therefore union organising power? Probably both.

The agreement making numbers are down, particularly in smaller enterprises. Unions are best placed to focus their resources on larger employers where the potential membership pool is larger. On the employer side, the cost of making a new agreement (2% per annum plus wage increases) outweighs the pain (union pressure/employee discontent) of not doing so. An employer’s “BATNA” (best alternative to a negotiated agreement) is the status quo. There is more leverage for employers in an environment where the termination of expired agreements is more readily available than once thought.

When this occurs employers start thinking about a concept that gets revisited every decade since the dawn of enterprise bargaining: “beyond bargaining”. How can we, the employer, operate in a sustainable, risk-free way without enterprise bargaining? The solutions here are well known, but long term and resource intensive. It relies on two key premises:

  • First, there is nothing to be gained operationally by enterprise bargaining. The “productivity lemon” has been well and truly squeezed. Employers consistently tell us this.
  • Secondly, bargaining can be avoided with manageable risk. Put another way, any risk associated with the bargaining process (read “industrial action”) does not outweigh risks associated with making an agreement which, in the longer term, risks the viability of the enterprise.

A photo by Thomas Kelley. unsplash.com/photos/hHL08lF7IkcThe Aurizon decision handed down on 22 April 2015 and endorsed by a Full Federal Court on 3 September 2015 has created a viable option for employers needing to move away from legacy industrial arrangements that are bad for business.

The Aurizon decision was a watershed ruling because it swept away a longstanding presumption that agreements should not be terminated whilst bargaining negotiations for a new agreement are occurring (see our earlier blogs about this decision here). The mere fact the option exists has given employers more leverage in bargaining, as well as providing an opportunity to change arrangements other than through a union-resisted employee ballot for a new agreement.

Figures released by the Department of Education last week show that applications to terminate agreements have almost doubled. The Fair Work Commission terminated 416 agreements in Q1 – Q3 2016, which represents an increase from 275 in 2015 and 156 in 2014.

Of course, not every agreement is a good candidate for termination – a lot depends on the context, the reasons for the application, what has occurred during the bargaining process, and a list of other factors. An employer making an application to the FWC without the consent of employees covered will need to show that termination of the agreement is not contrary to the public interest, and is appropriate in all of the circumstances.

The union response to these recent developments has been multi-layered, with the following key strategies observed:

  1. Deal with it “on the ground” using traditional IR tactics and weapons (including ramping up protected action and/or taking covert unprotected industrial action)
  2. Go after the “brand” with media campaigns and the like
  3. Lobby for changes to the legislation – unlikely at present
  4. Look for suitable test cases to run to try to overturn Aurizon, and / or
  5. Try to agree restrictions in the agreements currently being negotiated to the effect that if the employer applies to terminate the agreement in the future, specified terms and conditions considered particularly important will be maintained by way of undertaking.

This fifth strategy is itself a result of a recent development. Late last month, VP Hatcher stayed a decision of DP Clancy to terminate the Loy Yang Power Enterprise Agreement 2012. The stay was issued on the grounds that termination was ordered despite a specific clause in the EA requiring the Company to maintain a suite of conditions until a replacement agreement was negotiated. While AGL gave an undertaking it would maintain certain conditions, the undertaking was narrower than the list of conditions specified in the clause.

The appeal will be heard on 21 February 2017. The appeal will look closely at the effect of this clause and particularly whether AGL moving away from it impacts on the “appropriateness” of terminating the agreement. This part of the test requires the FWC to consider a range of discretionary factors.

The impact of the AGL stay has been immediate. Across our partnership, we have seen unions ask for a similar protective clause in over half a dozen separate bargaining negotiations in the past week. Major employers will increasingly need to deal with this kind of claim and the public campaigning that results if there is a rejection of the claim. Of interest over the next month will be how far the AGL appeal goes – and whether it has ramifications beyond the specific facts of that case.

SurveillanceTechnological advances in monitoring and surveillance call to mind the lyrics of The Police’s widely misinterpreted hit, Every Breath You Take. But how will this emerging new frontier play out in workplaces and work practices? As technology continues to accelerate, many employers are starting to think about how to harness these developments in order to achieve greater workplace productivity and consistent health and safety outcomes.

When we think of workplace surveillance, it’s easy to get stuck thinking about the traditional measures that have been widely used for the last 10 years or so – email monitoring, CCTV and the occasional dash-board camera. These methods have historically been used for safety, security and compliance. But as workplaces become more remote and isolated and there are lower numbers of employees on any one site, organisations are looking beyond traditional methods and embracing the latest monitoring technology – both to deal with safety and security, but also as a direct way of measuring employee productivity.

The new frontier of workplace monitoring includes the use of:

  • drones to monitor inaccessible work sites;
  • caps worn by employees operating heavy duty machinery or vehicles which use infra-red technology to identify fatigue indicators such as yawning and prolonged blinking, and where such fatigue indicators occur, send an alert to either the employee or a manager;
  • satellite monitoring of speed limits for employee driven vehicles in remote locations which instantly alert drivers and managers to speed limit infringements; and
  • without getting too Matrix-y about it, there even exists headwear which can measure the electrical activity of the brain in order to determine when your mind, quite literally, isn’t on the job.

Some innovations haven’t even been applied to the workplace yet. For example, in the tech industry, it is common for companies developing apps and websites to road test new developments with consumers by using eye tracking technology to monitor where a tester’s eyes are drawn on a computer or tablet screen (and how long the user spends looking at particular parts). It is not a great leap to think that employers could use similar technology to measure employee productivity – for example, in call centres where time efficiency outcomes and work outputs are intrinsically linked. This technology could measure the workplace productivity (and therefore focus) of each employee by tracking their vision on a computer screen. There may also be compliance benefits for companies that require their employees to provide disclosures regarding transactions – this technology could measure whether an employee looked at those requirements on a screen prior to carrying them out. Or, simply, monitoring whether or not an employee looks at their mobile phone whilst driving a vehicle in the performance of their role.

Closer to home, technological advances continue to make us reassess and update our personal practices to allow devices to monitor our location and behaviour (hello exercise trackers, Find My Friend and the new Parked Car feature in the iPhone’s iOS 10 – trust us, it’ll weird you out when you get an unsolicited notification as to where you left your car). So is it only a matter of time before these technological advances, and the general comfort and acceptance of them, translate into the introduction of new monitoring and surveillance practices in our workplaces?

We think the answer is yes, particularly where there is little doubt that new technology could provide information that will deliver increased productivity and health and safety outcomes. However, putting to one side the legal implementation questions, these developments raise some serious operational questions for employers:

  • what is the best method to measure productivity in your workplace and is there a technological advance that will make this easier? Simply introducing a new technology for the sake of appearing ‘cutting edge’ may be counter-productive and expensive.
  • how will you balance the introduction of new technology with the cultural impact this might have on your employees? Employees may be reluctant to allow this sort of Big Brother monitoring and have legitimate concerns about how the information from new monitoring systems might be used. How you start the conversation with your employees regarding monitoring (especially in regard to the reasons why you are doing it) will be an important step.

Balancing increased workplace productivity and consistent health and safety outcomes with a positive workplace culture is not a new concept for employers, but we think that advances in technology (and our attitude towards technology) mean that a new frontier in workplace monitoring and surveillance will be a critical feature of the future of work and how employers measure productivity. The big question is, are we ready for it?

Working with many of Australia’s leading employers has given us strong insights into the planning and habits of the leaders of high performing organisations.Measuring performance

It is virtually an absolute that these organisations have a clear view of what business success looks like for them – they have a clear but flexible strategy and are relentless about executing it.

Importantly in managing their workforce and its culture – they know what high productivity looks like for their business and workforce.

It sounds like a statement of the obvious: on the docks crane lifts per hour are a standard productivity measure. Performance can be measured against competitors domestically and globally. Best practices are transparent and something to be aimed for.

But in other businesses the notion of productivity is a murkier one. The productivity of a senior banking professional or a teacher can be harder to measure, particularly if their role is not clearly defined or their performance not linked to an overall business strategy. There may be no universal or even widely applicable standards of high performance for benchmarking purposes.

This is where we see leading employers stand out. These are organisations that know what high performance means for their business. They have their own understanding of what productivity means to them and how to improve it. They can then make decisions about how their labour arrangements will facilitate higher productivity. They are conscious of hand brakes on productivity and work to remove them. We have the privilege of working on projects – sometimes brief, sometimes with work streams that run for years – to constantly move organisations to their desired frontier of high performance.

Whilst the productivity of Australia’s workforce overall has steadily increased (climbing approximately 10 index points to 104 index points since 2011 – good but not great) the picture looks different when we look through a magnifying glass at particular sectors or organisations. There the performance is more mixed – with factors such as legacy labour restrictions and underinvestment in capital resulting in some organisations being well behind the eight ball.

The positive story here is that productivity can always be improved – and the lower the starting base the more room for improvement!

But the first and most fundamental step is to know what it means for your organisation and to have a system to measure it. From there, the metaphorical sky is the limit.

In a world where smart phones and apps are evolving faster than you have time to update them, it’s important to take a moment to reflect on the potential for inadvertent disclosure and self-sabotage in the workplace.StockSnap_JUC6R3PPLE

Here are some issues to consider:

Dating apps in the workplace

Dating apps like Tinder, Happn and Grindr have a GPS function, so if a person has logged into them at work or anywhere near work, any colleagues who also have the apps will see the profile and potentially be suggested as a ‘match’. This can be not only embarrassing for employees who wish to keep their private life private, but may present discrimination risks if employers inadvertently come across personal information and it is perceived that the information influenced some action taken (or not taken) by the employer against an employee or potential employee.

To post or not to post, that is the question

It is much easier to find out when an employee who has called in sick is lying when their every move is recorded on social media. For example, each photo on Facebook can be assigned its own level of privacy and some people (consciously or unconsciously) allow their photos to have a public setting. This means that anyone can view the photos. Similarly, not everyone on Instagram has a private profile and most people assign a geotag to photos meaning that an employee may say they are in one place but a geotag on a photo will indicate another location.

Oversharing and privacy

‘Liking’ posts or adding friends on Facebook or LinkedIn where the settings allow a user’s activity to be shared, means that people following a user will find out any new connections they make and other information based on the posts they are liking, such as their political persuasion. Employers following their employees on LinkedIn for example, will be able to tell if the employee is connecting with recruiters and liking job posts.

Spotting the fakes

Anyone can easily make fake accounts on Facebook, Instagram or Snapchat, masquerading as someone else either to collect information or troll with negative or abusive comments. It can be difficult to track down and prove who is behind these accounts without the expense of digital forensics providers.

Our Advice

  • Employers may consider cautioning employees to exercise care when using dating apps that have a GPS function. There are no guarantees of remaining undetected given the popularity of dating apps and common social areas where people congregate, including work sites. But if a person is really wanting to keep their dating life private, they can make a point not to log in anywhere in the proximity of the workplace and consider not using an identifiable profile picture.
  • Employers should be careful of what they do with personal or confidential information about employees that they inadvertently come across through social media or apps. It’s a privacy and discrimination minefield out there depending on what an employer does, or is perceived to have done, with that information. If unsure, employers should seek advice before they act.
  • Employers and employees should understand the privacy settings for every app they regularly use and be vigilant about the constant updates that can change the privacy settings. For example, WhatsApp recently shared users’ contacts with Facebook by default unless individual settings were changed.
  • Ensure employees are warned to be cautious about adding colleagues on social media and that they verify it is not a fake account or a troll before accepting requests.
  • Employers should be clear in workplace policies about what is and isn’t appropriate conduct ‘at work’, keeping in mind that ‘at work’ no longer just means physically at work. It’s about what has an impact on the workplace.

This isn’t an exhaustive list and as always, we would love to hear from you, so let us know if you have any cautionary tales or advice.