Workplace Surveillance Act 2005 NSW
The Workplace Surveillance Act 2005 [NSW] covers video, camera, computer and tracking surveillance carried out, or caused to be carried out, by the employee’s employer while the employee is at work for the employer. Monitoring of personal phone calls is covered by the Surveillance Devices Act 2007 [NSW].
It imposes a strict procedure which an employer must comply to obtain permission to, not only perform covert surveillance, but also overt surveillance.
Notice of surveillance
An employer must give at least 14 days’ notice in writing before surveillance of an employee cancommence (except in the case of camera surveillance at a workplace of the employer that is not a usual workplace of the employee). Notice by email is considered notice in writing.
An employee may agree to a lesser period of notice.
If surveillance of employees at work for an employer has already commenced when an employee is first employed or is due to commence less than 14 days after an employee is first employed, the notice to that employee must be given before the employee starts work.
The notice must indicate:
- the kind of surveillance to be carried out (camera, computer or tracking)
- how the surveillance will be carried out
- when the surveillance will start
- whether the surveillance will be continuous or intermittent
- whether the surveillance will be for a specified limited period or ongoing.
Computer surveillance in the workplace
Computer surveillance of an employee must not be carried out unless it is in accordance with an employer’s policy on computer surveillance of employees at work, and the employee has been notified in advance of that policy in such a way that it is reasonable to assume they are aware of and understand the policy.
Tracking surveillance in the workplace
Tracking surveillance of an employee that involves the tracking of a vehicle or other thing must not be carried out unless there is a notice clearly visible on the vehicle or other thing indicating the vehicle or thing is the subject of tracking surveillance.
Prohibited surveillance of employees
Change rooms, toilets and showers
It is illegal for an employer to carry out, or cause to be carried out, any surveillance of its employees in any change room, toilet facility or shower or other bathing facility at a workplace.
Employee not at work
It is also illegal for an employer to conduct surveillance of its employees using a work surveillance device while the employee is not at work. An exemption is provided for computer surveillance of the use by the employee of equipment or resources provided by or at the employer’s expense. Law enforcement agencies are also exempted.
Blocking emails or internet access
An employer is not allowed to prevent, or cause to be prevented, delivery of an email sent to or by, or access to an internet website by, its employees, unless:
- it is acting in accordance with its email and internet access policy that has been notified in advance to the employee in such a way that it is reasonable to assume that the employee is aware of and understands the policy, and
- in addition, in the case of preventing delivery of an email, the employee is given a ‘prevented delivery notice’ as soon as practicable stating delivery of the email has been prevented (with certain exemptions).
A ‘prevented delivery notice’ is not required for an email if its delivery was prevented because it was believed:
- the email was spam
- the content of the email (or any attachment) would or might have resulted in an unauthorised interference with, damage to or operation of a computer or computer network operated by the employer or of any program run by or data stored on such a computer or computer network
- the email (or any attachment) would be regarded by reasonable persons as being, in all the circumstances, menacing, harassing or offensive.
Nor is an employee whose email was blocked required to be given a prevented delivery notice if the employer was not aware (and could not reasonably be expected to be aware) of the identity of the employee who sent the email or that it was sent by an employee.
It is illegal for an employer’s email and internet access policy to provide for preventing delivery of an email or access to a website merely because:
- the email was sent by or on behalf of a union or one of its officers, or
- the website or email contains information relating to industrial matters.
Use and disclosure of surveillance records
An employer must ensure any record made as a result of non-covert work surveillance is not used or disclosed, unless for:
- use or disclosure for a legitimate purpose related to the employment of employees of the employer or the legitimate business activities or functions of the employer, or
- disclosure to a member or officer of a law enforcement agency for use in connection with the detection, investigation or prosecution of an offence, or
- use or disclosure for a purpose directly or indirectly related to the taking of civil or criminal proceedings, or
- use or disclosure that is reasonably believed to be necessary to avert an imminent threat of serious violence to persons, or of substantial damage to property.
Covert surveillance of an employee at work is prohibited unless it is authorised by a ‘covert surveillance authority’.
A ‘covert surveillance authority’ (CSA) authorises the covert surveillance generally of any employees while at work for the employer but only for the purpose of establishing whether one or more employees are involved in any unlawful activity while at work for the employer.
A CSA, however, cannot authorise covert surveillance of any employee for the purpose of monitoring their work performance, or in any change room, toilet facility or shower or other bathing facility.
Exemptions apply to law enforcement, correctional centres, courts and casinos.