Findings
1 Representative step before start not recorded
Germany, the Netherlands, France and Italy put a representative body between the employer and a monitoring tool before it runs: a works agreement, the works council's consent, a CSE consultation, or a union agreement or labour inspectorate authorisation. In the Australian Capital Territory the employer consults the workers themselves during the notice period. Where the step is not recorded, the practice may be one the representatives can stop.
For HR and whoever speaks for the works council or union: Which works agreement, works council consent, CSE consultation, union agreement or inspectorate authorisation covers this practice at this location, and was it in place before the practice started?
Where it comes from, location by location
- Representative stepstatutory requirementA works agreement (or a conciliation committee award) before the practice starts, changes or is extended. The test is whether the device can monitor conduct or performance, not what it was bought for; a company-wide system goes to the central works council. (where a works council exists) BetrVG s 87(1) no. 6BetrVG s 80(2)BetrVG s 77(1), (2)BDSG s 26(4)
- Representative stepstatutory requirementWorks council approval of the general assessment criteria a scoring system applies. (where a works council exists) BetrVG s 94
- Representative stepstatutory requirementThe works council's consent to the arrangement before it is adopted: a proposal in writing with reasons and consequences, at least one consultation meeting, then written notice of the decision and its start date. Without consent or the cantonal court's permission the decision is void if the council invokes nullity. (where a works council exists) WOR Art. 27(1)(l)WOR Art. 27(2)WOR Art. 27(4)
- Representative stepstatutory requirementThe works council's consent to an arrangement on processing staff personal data. (where a works council exists) WOR Art. 27(1)(k)WOR Art. 27(2)
- Representative stepstatutory requirementInform and consult the CSE before deciding to put the means of control in place, while the consultation can still change the decision (undertakings of 50 or more employees). (where a CSE exists) Code du travail L2312-38 al3Code du travail L2312-8 II 4Code du travail L2312-14CNIL guidance ACT-6
- Representative stepofficial guidance, not lawThe CNIL adds, for cameras: inform and consult the staff representative bodies before any decision to install. (where a CSE exists) CNIL guidance VID-10 official guidance, not law
- Representative stepofficial guidance, not lawThe CNIL adds, for location: inform or consult the representative bodies before installing. (where a CSE exists) CNIL guidance GEO-7 official guidance, not law
- Representative stepverification requiredThe CNIL adds, for calls: inform and consult the representative bodies before installing listening or recording. (where a CSE exists) CNIL guidance CALL-6 official guidance, not law
- Representative stepofficial guidance, not lawThe CNIL adds, for IT tools: inform or consult the representative bodies before a control device is put in place, and inform staff through a charter. (where a CSE exists) CNIL guidance NET-5 official guidance, not law
- Representative stepofficial guidance, not lawThe CNIL adds, for access and time systems: inform the representative bodies before any decision to install. (where a CSE exists) CNIL guidance ACC-6 official guidance, not law
- Representative stepstatutory requirementEquipment that also allows remote monitoring of workers only for organisational and production needs, workplace safety or asset protection, and only after an agreement with the union representation or, failing one, prior authorisation from the labour inspectorate. Workers' Statute Art. 4(1)Italian Privacy Code Art. 114Italian Privacy Code Art. 171
- Representative stepstatutory requirementThe agreement requirement does not apply to the tools a worker uses to do the work or to attendance recorders: whether this practice is a work tool, or an added monitoring function, is the question to settle and record. Workers' Statute Art. 4(2)
- Representative stepstatutory requirementConsult the workers in good faith about how the surveillance will be run, for at least the 14-day notice period. ACT WPA s 14