Negotiating the new economy: The effect of ICT on industrial relations

7. Widening the negotiating agenda: On-line rights

We turn now to consider ways in which the negotiating issues of industrial relations have been broadened to include new concerns as a consequence of new technology.

The first such issue is that of employee access to corporate email services, corporate intranets and the internet itself. Many companies have recently begun to address this area, for example by introducing email and internet policies for their employees. There are examples from a number of countries of cases where recourse to employment law has been required to resolve disputes.

The trade union federation FIET (now UNI) was one of the first international organisations to identify this issue as one needing attention, in its On-line rights for on-line workers campaign launched early in 1998. FIET set three demands:

• The right of free access by employees and by trade unions and works councils to corporate e-mail systems, so that employee members can receive information and communicate with their representatives.
• The right of free access to the Internet (and to corporate intranet networks) by employees, to enable them to access trade union web sites and other information relevant to their rights at work.
• No electronic monitoring by employers of e-mail sent or web sites visited by employees.⁸⁵

The campaign has been endorsed by the International Confederation of Free Trade Unions (ICFTU).

There are, in fact, a number of separate issues here.

• Firstly, there is the demand of workers’ organisations to have access as of right to electronic means of communication to reach members and potential members and to engage in the normal process of industrial relations. This includes the right of individual workers to use facilities such as email and the internet to reach their representatives.
• There is another issue, as to the extent to which individual employees should be able to use corporate electronic facilities for personal use. This is analogous to the tacit acceptance by some employers of use of the telephone at work for private calls.
• A third issue arises if employees are accused of using these facilities to access objectionable material, such as racist or pornographic web sites.
• Finally, there are questions of employer surveillance of email communications and internet usage, and the degree to which this could conflict with employee privacy and basic human rights.

FIET developed its campaign with the production of a model electronic facilities agreement, discussed in detail by participants from about twelve countries (primarily European, but also including Australia) at an ICT Forum held in France in late 1998 and then subjected to further debate via an internet discussion forum. Based on this work, model electronic facilities agreements have now been published by FNV Bondgenoten (Netherlands),⁸⁶ MSF (UK)⁸⁷ and the GPA (Austria).⁸⁸ Collective agreements covering electronic access rights have been signed by, among others, Deutsche Telekom/DPG (Germany), Digital-Compaq/LBC-NVK (Belgium), Société OLSY/CFDT,CFTC,CGT,CGC (France) and Digital Equipment/CGIL,CISL,UIL (Italy).⁸⁹

In Australia, the right of union delegates to ‘reasonable access to telephone, facsimile, photocopying, internet and email facilities’ is included in the Charter of Workplace Union Delegates Rights, adopted by the Australian Council of Trade Unions. A Code of Practice, giving this right to public sector employees, has already been introduced in the Australian state of New South Wales.⁹⁰

This demand has also been taken up in South Africa by COSATU, the trade union federation. COSATU’s Special Congress in August 1999 adopted a Declaration on Organisational Renewal, which included the following action: "To specifically launch a campaign to ensure dedicated access for each shop steward to computer, internet and e-mail facilities at each workplace".⁹¹

Trade unions argue that access to electronic facilities is an integral aspect of the right to worker representation. As UNI put it, "The traditional forms of communication among trade unionists, works councils and their members are no longer sufficiently effective in the electronic workplace. A notice on a notice board in the canteen or a newsletter for distribution in the workplace, for example, will not reach those employees working flexibly with the help of new technology, such as teleworkers based at home or at outside telecentres or mobile workers."⁹² UNI [held/is holding] an international conference on on-line rights in Brussels in November 2000.

Perhaps the most striking example of the issue being subjected to scrutiny under employment legislation can be found in Australia, in the Maria Gencarelli case. Ms Gencarelli, a delegate of the Australian Services Union, was sacked by her employer the airline Ansett for distributing a union bulletin to her colleagues by email. In April 2000, the Australian Federal Court found in her favour, ruling that the employer had breached the Workplace Relations Act in dismissing her. The ASU claims that the ruling effectively gives workers the right to use new technology to communicate with each other.⁹³

The issue of email or internet access by employees for private purposes is perhaps more problematic. In 1999, a British firm of management consultants dismissed a member of staff who had made 150 searches over a four day period on the internet to look for a holiday. This decision was subsequently upheld by an employment tribunal.⁹⁴ In the United States, twenty-three staff were dismissed by the New York Times in November 1999 for emailing jokes or pornographic pictures. The newspaper’s policy declares that ‘communications must be consistent with conventional standards of ethical and proper conduct, behavior and manners’.⁹⁵

At least in the USA and United Kingdom, companies are increasingly aware that they may also be held legally responsible for the content of emails sent by employees. In the UK, an insurance company paid £ 450,000 (US$ 650,000) to a rival insurer after its staff were found to have sent libellous messages about the other company.⁹⁶ It is perhaps also worth recalling that private emails written by Microsoft chairman Bill Gates were used by the US Justice Department as part of its anti-trust case against the software company.

However if employers are to have the ability to know if their employees are using electronic communications for inappropriate or illegal purposes, they require some way of monitoring the usage. In practice, most web browser and corporate email software comes with sophisticated monitoring and tracking features already built in, so that there are unlikely to be technical difficulties. There is, however, the issue of privacy to address.

This is an issue which currently remains very confused. For example, within the European Union member states, there have been suggestions that the European Commission directive on telecommunications data protection effectively prohibits employers from monitoring emails. This interpretation was the subject of a dispute between the British government and the Confederation of British Industry during debate on controversial new legislation proposals introduced by the government.⁹⁷

On a practical note, UNI’s Model electronic facilities agreement offers one suggestion for a way forward:

"The employer undertakes that e-mail will not be routinely read or monitored. E-mail will be monitored and retrieved only if the employer is legally obliged to do so or has reasonable reason to believe that an employee has committed a criminal offence or serious disciplinary offence. In these situations, e-mail will be monitored and retrieved only in the presence of a trade union representative or employee selected representative".