Workers’ Rights through Automated Decision-Making

Submission to the Office of the Australian Information Commissioner on the ADM Transparency Obligation Issues Paper

Automated decision-making (ADM) is already reshaping Australian workplaces. Decisions about who is hired, how people are rostered and surveilled, how their performance is judged and whether they keep their jobs are increasingly made or substantially assisted by computer programs. These are decisions that significantly affect the rights and interests of workers.

For the purposes of this submission, the ‘ADM obligation’ refers to the transparency requirement on entities using automated decision-making systems that significantly affect the rights or interests of individuals, and ‘human-in-the-loop’ refers to genuine, informed and timely human engagement with, and oversight of, an automated recommendation before any decision affecting a person is made.

The issues paper does not address rights available to workers through the Fair Work Act 2009 nor through Workplace Health and Safety (WHS) legislation, nationally or through States or Territories.

Any guidance on ADM should align with Fair Work Act consultation obligations, work health and safety duties, and relevant enterprise agreements and modern awards, to prevent fragmentation and avoid gaps in protections for workers.

Workers’ professional duties and the broader public interest in safe, accountable decisionmaking cannot be displaced by ADM outputs. Transparent and reviewable decision-making is essential wherever ADM affects workers or the people they serve.

The ACTU’s submission will deal with these absences and recommends that any guidance or advice coming from Government regarding ADM be consistent across all domains.

The ACTU recommends that the OAIC’s guidance:

1. expressly recognises that decisions about hiring, rostering, surveillance, performance assessment, discipline and termination can significantly affect the rights or interests of an individual and are within the scope of the ADM obligation;
2. references the Fair Work Act 2009 and relevant work health and safety laws as relevant for interpreting the meaning of rights and interests, alongside the anti-discrimination and administrative law frameworks already cited;
3. identifies workers as a class of people whose rights and interests may be significantly affected by ADM, including in circumstances of dependence or vulnerability arising from the employment relationship, including vulnerability factors such as insecure or casual work, new entrants to the workforce, and those working in high-pressure, remote or isolated settings;
4. makes clear that human oversight must be genuine, informed and timely, that adequate time to review automated outputs must be factored into workload, and that the professional and legal obligations of registered occupations cannot be displaced by ADM; that oversight should be conducted by people with relevant expertise, with time explicitly allocated within workloads for review and explicit override pathways where rights or safety
   are at risk, and must not amount to rubber-stamping under workload pressure; and,
5. confirms that public sector use of ADM does not diminish the accountability of the agency or the responsible officer.

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