Managing people

Laws on surveillance in the workplace

Surveillance in the workplace may be necessary for the safety of your business.

Surveillance in the workplace is not something that should be entered into without good reason, as the legislative requirements are complex, and the costs of implementing a surveillance system are high.

However, video surveillance may be considered necessary where it is suspected employees or others coming onto the premises are engaging in unlawful activity, such as theft or drug use.

New South Wales, Victoria and the Australian Capital Territory are the only states  to specifically legislate on surveillance in the workplace. This article explores the legislation in each state.

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

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.

Surveillance Devices Act 1999 (VIC)

The Surveillance Devices Act 1999provides a framework for workplace privacy protection in Victoria by prohibiting employers from using any device to observe, listen to, record or monitor the activities, conversations or movement in toilets, change rooms, lactation rooms, washrooms (including shower and bathing facilities) or in any other prescribed circumstances.

Installation, use and maintenance of listening devices, optical surveillance devices, and tracking devices are regulated by the Act, as well as installation, use and maintenance of data surveillance devices by law enforcement officers.

The legislation also bans the material obtained from surveillance from being distributed, with several exemptions (for example, to the police or other law enforcement officer, or with expressed consent of all parties).

Under the legislation, surveillance is only permitted in accordance with a warrant or emergency authorisation, or with a Commonwealth law. Unlike the NSW legislation, a warrant must be obtained by a law enforcement officer and only with the approval of police.

The Workplace Privacy Act (ACT)

The Workplace Privacy Act 2011 requires employers to inform and consult with employees on when their right to privacy will be limited through use of surveillance and for what purpose.

The legislation arose out of a concern security cameras and other monitoring devices were being installed without the knowledge of employees. 

Key provisions

The Explanatory Statement to the Act outlines the following main provisions:

  • Prohibited surveillance — surveillance of an area is prohibited on the grounds of an increased expectation of privacy in that area (for example, change rooms, prayer rooms and locations outside of work).
  • An employer is required to go through a process of notification and consultation prior to implementing surveillance in the workplace.
  • Notification must outline the way surveillance will be conducted and what surveillance records generated by the surveillance can be used for. Significantly, while surveillance can be used for employee monitoring and performance management, the employer must disclose surveillance may be used to do so, or else the employer will not be able to take adverse action against the employee based upon activities captured by the surveillance records.
  • Notification may take the form of a generalised surveillance policy that is issued to all workers or individual notices.
  • A consultation period of 14 days is in place following the initial notice of surveillance. An employer is required to give consideration to concerns raised by workers regarding the conduct of surveillance.

Three types of surveillance are regulated by the Act:

  • Optical surveillance — an employer is required to make visible the camera in the workplace where optical surveillance is conducted, and to place signs on that workplace indicating surveillance may take place there.
  • Data surveillance — an employer is required to develop a policy on the use of data surveillance (which can include computers, internet, smartphones or other device capable of electronic communication) and then comply with that policy.
  • Tracking surveillance — an employer is required to place a visible notice on any vehicle or other thing being tracked. It should be noted this may, in some circumstances, include smartphones where GPS data can be used to track location.

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