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Code of Practice on Workplace Surveillance
Code of Practice on Workplace Surveillance
Comments by the Hong Kong General Chamber of Commerce
1. The Chamber supports the safeguarding of the employees' rights to privacy. It is the Chamber's long standing position that good industrial relations is based on mutual trust and respect.
2. We appreciate the need to provide some advice and guidance on employee monitoring, both to clarify the application of the Ordinance and more generally to outline “best practice”. We are not sure, however, that this is best achieved by a code of practice under the Personal Data (Privacy) Ordinance. According to Section 13 of the Ordinance, failure to observe a code under the Ordinance may be deemed admissible evidence for the purpose of indicting an alleged offender of the Ordinance. This makes the code a legally-backed regulatory weapon besides being a guidance document.
3. In our view, it will be more appropriate to introduce the document as a neutral and non-regulatory “Guideline”, rather than a code of practice under the Ordinance. We believe there is a current provision for criminal charges on unlawful surveillance, which should suffice as the main legal sanction.
4. We would emphasise that for many businesses workplace surveillance is undertaken not for employee monitoring but to meet a necessary operational need. For instance, real time surveillance is needed for security reasons for jewellery shops, open storage yards and supermarkets. In other cases such as banks and data processing centres, electronic surveillance is mandatory as a matter of international standards and best practice.
5. We would also point out that real time surveillance technology via Internet's is being developed in Hong Kong as a leading edge service. It is also contributing to the wider economy by increasing the efficiency of the business owner to check conditions remotely. A Code may undermine the prospect of the development of such a sector.
6. More generally, it is a matter of good corporate governance for a system to be put in place to ensure the proper and effective utilisation of company resources, to prevent possible abuse and to avoid jeopardising the competitiveness and image of the company. Workplace surveillance is one of a number of measures needed to prevent loss of corporate assets and lower associated risks. Such losses if not avoided will eventually damage the shareholders' interests and ultimately the employees' due to higher business cost.
7. A code of practice under the Personal Data (Privacy) Ordinance will mean a tightening of the regulatory regime for workplace surveillance, thus putting pressure on companies to switch to other complementary forms of corporate loss-prevention, such as external and internal audit, internal control and insurance. In practice, however, many SMEs would not be able to spare resources or manpower for these measures. It is unrealistic to expect SMEs to engages larger resources whilst they even find it difficult to borrow working capital from banks. They are thus more likely to rely on workplace surveillance.
8. The protection of employee's privacy should be weighed against employer's legitimate concern for risk-avoidance and loss-prevention. A balance needs to be struck to ensure that reasonable monitoring by employers can take place whilst respecting the dignity and rights of employees in the work place. We believe it a good balance for the Privacy Commissioner to develop a set of user-friendly and constructive Guidelines offering clear and concise guidance.
9. An important advantage of Guidelines over a Code of Practice is that the Guidelines can be revised from time to time whereas a legal Code is more permanent. For a subject as complex as workplace surveillance, we believe it is premature for a Code to be contemplated.
10. We have no problem with the principles of transparency, fairness and proportionality etc., as guiding principles in developing the Guidelines for workplace surveillance. In our view, they all accord with the overall principle of balance and reasonableness. The important part, however, lies in the details. The Guidelines should be as specific as possible and eliminate gray areas, whilst at the same time give due recognition to the need for flexibility in actual business situations.
11. In conclusion, unless there is conclusive proof of rampant abuses in workplace surveillance, we consider that a Code will not be necessary.
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