Q. Our company is currently reviewing its policies and procedures. We are looking at one of these policies - monitoring company-supplied equipment such as computers and mobile phones. The policy states the company has the right to monitor emails and mobile phones, but there are concerns regarding how far the company can intrude so as not to breach our privacy policy. Does the employer have a unilateral right to monitor any employer-supplied computers and other electronic devices or would this breach privacy laws? 


A. Generally, employers have a right to monitor company-supplied computers and other technological devices, such as mobile phones, provided this is in accordance with any relevant policies or procedures. Other than where a magistrate has issued a covert surveillance authority, the surveillance must be carried out in accordance with a policy that refers to workplace surveillance of employees. Also, the employee must have been notified in advance of that policy and the employee is aware and understands the policy. 

 

Workplace surveillance statutes

State and territory legislation that regulates the use of electronic surveillance or monitoring of employees differs between jurisdictions and is normally device-specific. In a workplace context, legislation exists in New South Wales (the Workplace Surveillance Act 2005 [NSW]) and the Australian Capital Territory (the Workplace Privacy Act 2011 [ACT]) which regulates the privacy of email and internet communications at work. Both statutes restrict employers from blocking employees’ emails and internet access at work. This means employers cannot block access to emails or internet sites because the content relates to industrial matters.  

Generally, ‘industrial matters’ means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry. This would include workplace surveillance. 

 

Listening & surveillance statutes 

Listening and surveillance devices legislation operates in each state and territory and usually prohibits the use of a listening device to listen to or record private conversations to which the user is not a party without the consent of all parties. Surveillance and monitoring devices used in the workplace that may be covered by such state or territory legislation include: 

  • video cameras 
  • global tracking systems (GPS) 
  • listening devices 
  • telephone 
  • computer, and 
  • biometrics, eg. finger prints, iris pattern, DNA, handwriting, etc. 

 

Telephone monitoring 

There is also federal legislation that regulates the monitoring of telephone communications in the workplace, including mobile phones. The Telecommunications (Interception and Access) Act 1979 [Cth] prohibits listening to or recording communications passing over a telecommunications system without the consent or knowledge of the parties to the communication.