CPSU believes that email and internet facilities provide important business and communication tools.
CPSU requires employers to establish agreed policies on employees access to email and internet facilities and make the policy known to all employees. These policies should also recognise employee rights to limited private use of these facilities.
Policies established by employers must include fair and transparent processes for investigating breaches.
CPSU does not condone the use of email or the internet for illegal, offensive or inappropriate purposes and expects members, activists, delegates, staff and officials to use these facilities in a responsible, effective and lawful manner.
CPSU believes that workers should be consulted and informed about issues affecting their working lives and that all employers should acknowledge the rights of members to communicate with their delegates and the union on those matters.
CPSU does not accept that the circulation of authorised union material is inappropriate, and usage agreements and access to facilities are negotiated with employers to cover this situation.
The CPSU supports the ACTU statement of Australian Union Values on fairness, equality and opportunity in the community that were established at the ACTU Congress in 2003.
CPSU believes that all officials, staff, delegates and activists should conduct themselves in a manner which is consistent and supportive of this statement.
National Council notes and endorses the proposed CPSU statement on email and internet usage. In addition, NC endorses the CPSU members check-list and guidelines for circulation and publication to members. In so doing National Council believes that CPSU activists, delegates, councilors and officials have an obligation to adhere to, support and promulgate this policy in their workplace/agency. National Council requires all CPSU Divisions to incorporate the email and internet policies within Division and agency plans.
Moved: ANS M Gillespie
CPSU email and internet check list for members
As an employee, the CPSU expects that you will abide by your employers email and electronic information policy and guidelines. If you don't know what those guidelines are, you must find out.
In particular, the CPSU requires that you will not circulate material that is offensive, derogatory, or unlawful. You and your employer can both find yourselves liable to legal proceedings if you circulate such material. You also risk termination of your employment.
The fact that you do not think something is offensive or derogatory is not relevant. The rule of thumb must be that if you would not put the email and its material on a workplace notice board then you must not circulate it. This approach should in fact be applied to every email you send.
Most employers’ policies contain a statement that whilst they will not monitor email routinely, they reserve the right to monitor mail to ensure compliance with their use policy. You need to be aware that this will likely occur.
The Federal Privacy Commissioner acknowledges the right of employers to monitor and check employees email or internet holdings and usage.
Most employer policies also contain a general prohibition on circulation of inappropriate material. This does not mean that all material circulated by a CPSU member is either authorised or appropriate. The access agreement will be the determining factor. In circumstances where one does not yet exist, you must not circulate material in your capacity as a representative of the union that is not authorized.
What is inappropriate material?
In the main common sense should prevail in determining what is inappropriate.
Although there has been a justifiable media focus on pornographic and offensive material, there is other material that can be just as inappropriate.
Slanderous and derogatory material is inappropriate if it is used against another person or organisation and can lead to claims of defamation. Emails are a very unsecure method of communication and an employee should always be aware that their email may end up being read by third parties or in the public domain.
Conducting illegal activities at work on email or the internet has the same inherent risks. Employers have summarily dismissed employees for using email for illegal activities, like arranging and selling drugs.
It is also inappropriate to create or transmit material purporting to be from an employer or organisation which was not in fact from, or authorised by that organisation. As an organisation, and an employer, the CPSU has this basic right to protect its name and reputation.
Determining what is offensive material can sometimes be problematic. Employees accused of receiving or having pornographic or offensive material normally in the first instance argue that they do not believe it is pornographic or offensive. As general rule there are a series of measures that can be established to determine what is offensive. These are described as the subjective and objective tests.
The subjective test asks the question whether a person is offended by the material; if the person says they are offended, then they are offended.
The objective test asks whether a reasonable person would say the material is offensive.
The objective test can be taken further by asking the question whether any reasonable person would be offended if the material was placed on display on a notice board in a tea-room or other public area.
Implications for receiving and/or on-forwarding inappropriate or offensive material
There are various avenues open to employers and employees to pursue complaints about receiving or holding inappropriate or offensive material. These include:
The AIRC:Numerous unfair dismissals pursued in the AIRC have established a reasonable benchmark. It would seem that if the employer has a policy on inappropriate use of email, and that policy is accessible by employees, an employee caught with significant inappropriate material more often than not would be dismissed. In these cases it would seem that the AIRC would not overturn that decision. Cases in the AIRC where employees have been dismissed for receiving and on forwarding inappropriate material almost certainly will not be overturned by the AIRC.
Over the last few years private sector employers have generally become more confident in summarily dismissing employees caught with inappropriate material. In the public sector it would seem that employees who are accused of having and / or circulating inappropriate material are suspended pending an investigation.
The Human Right and Equal Opportunity Commission: The HREOC Sex Discrimination Commission, Pru Goward, in a recent article in the Canberra Times was reported as saying that ‘E-mailing a dirty joke to a colleague can be as sexually harassing as unwanted advances”.
The Sex Discrimination Act prohibits sexual harassment. To support the Act, HREOC have developed a Code of Practice. The Code recognises sexual harassment ‘includes the display of explicit or pornographic material, relentless sexual banter, crude conversations, innuendo and offensive jokes’. The Code also establishes responsibilities of employers, employees and unions amongst others.
A person who has been subjected to sexual harassment can make a written complaint to HREOC. Some complaints go to a public hearing for determination. In these cases Commonwealth Government respondents must comply with HREOC determinations. Breaches of a Code of Conduct
The Australian Public Service Code of Conduct: is contained within s13 of the Public Service Act 1998. Normally, where an APS employer believes that an employee has received and /or on forwarded inappropriate material the employer would initiate an investigation. Penalties for breaches of the Code of Conduct range from a reprimand to dismissal.
It is also possible for another APS employee to complain about receiving inappropriate material using whistle- blowing provisions. At this stage it is not know whether any APS employee has pursued this path.
Most other employers in the Public Sector have established comparable codes of conduct, some of which are established in their certified agreements.
