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E L E C T R I C A L CO N N E C T I O N

A U T UMN 2 0 17

8 5

time without being aware of it. Saying

the word ‘shit’ or using words such

as ‘pissed off’ would be considered by

most to be fairly mild swearing. Even

the word ‘f*ck’ may be considered

acceptable in some workplaces.

However, you’d be unlikely to use such

language with a new client whom you’ve

never met before. It’s all about context.

All of this raises a dilemma for

employers: as we have seen, the law

takes a flexible approach to workplace

language. It does not require you to

“sanitise” the language used by your

employees beyond what is considered

normal in your workplace. Indeed, any

attempt to do so is likely to be unpopular

with your workforce.

However, if you are serious about

protecting your business from risk,

you may need to apply a different

or a higher standard than that

required by the law. The key here is

reputational risk: you need to set your

organisation’s standards of conduct

at a level that reflects how you want

your organisation to be perceived. This

includes you, your employees, your

customers, and your competitors.

We see this dilemma being played

out in the media almost every week:

what one person believes to be

harmless workplace banter is often

reported in the media as evidence of

an organisational culture of bullying or

harassment. Regardless of who is right

or wrong, the reputational damage is

irrevocable. The larger your business

– or your aspirations – the greater the

weight which needs to be placed on

reputational considerations.

So, consider these questions when

drafting your Code of Conduct: what

are the values you wish to foster in

your business? What are the risks? And

most importantly, what stands up to a

‘commonsense’ test of behaviour?

No-one is going to judge your

organisation harshly because someone

let slip the F bomb after dropping a

heavy tool on their foot. But if they are

habitually using the same language to

abuse junior staff members, that could

be a completely different story.

Context and commonsense are

paramount. They’re the key to protecting

your business – and your reputation.

It’s a familiar sight in any public

space – that ever-present black dome

suspended from the ceiling, a single

red light blinking away somewhere in

the premises.

We’ve become accustomed to security

cameras operating in public places

and increasingly, they’re becoming

part of the workplace too. Contrary to

popular belief, video surveillance is

not just for ‘spying’ on employees: if

you have a fleet of vehicles on the road,

or if you have third parties – suppliers

or contractors for example – entering

your worksite, camera footage can

potentially provide crucial evidence to

protect your business from a claim if an

accident or an injury occurs. Depending

on who is at fault, having surveillance

cameras in place are the ultimate ‘cover

your arse’ safeguard.

But cameras will always generate

paranoia of the ‘Big Brother’ variety and

if you intend to go down the surveillance

path, you need to be prepared for

resistance from employees – and

importantly, you need to operate within

the confines of the law.

So is video surveillance actually

legal? Unfortunately there is no black

and white answer on this point. This

issue falls under state jurisdiction,

which means that different laws apply

according to your location. NSW,

for example, has strict laws which

require the consent of the majority

of employees before cameras can be

installed. The cameras need to be

visible and their presence flagged with

warning signs. Similar laws also exist in

the ACT, but no other state has specific

laws relating to workplace surveillance.

Keep in mind that video surveillance

is a separate issue from recording

actual conversations within the

workplace. As a general rule, you

need permission from a party to the

conversation before doing this, although

this permission can be implied – for

example, if you’ve plonked a digital

recording device in the middle of a table

at a meeting, your team should take this

BIG BROTHER IS WATCHING