Employers may sometimes need to use surveillance technologies to protect workplace safety, security, assets or regulatory compliance. However, workplace surveillance is regulated by a combination of state, territory and Commonwealth laws.

 

Types of workplace surveillance

The types of surveillance and monitoring devices that might be used include:

  • optical video (camera/video)

  • tracking (e.g., Global Positioning System (GPS))

  • listening devices

  • telephone

  • computer

  • biometrics, particularly in respect of time and attendance (involving the use of technology to recognise people based on innate physical characteristics such as fingerprints, iris pattern, DNA, handwriting or gait).

 

Workplace surveillance laws in Australia

Legislation governing the use of workplace surveillance or monitoring employee activity varies between state and territory jurisdictions. In most states and territories, surveillance legislation is device-specific and applies more broadly than in the workplace. Examples of this include the Listening and Surveillance Devices Act 1972 (SA), Surveillance Devices Act 1998 (WA) and Surveillance Devices Act 2007 (NT). 

 

Workplace surveillance laws in NSW

The Workplace Surveillance Act 2005 (NSW) relates to an employer’s use of technology, including video cameras, computers and tracking devices, to monitor employees. It generally prohibits the surveillance of employees at work, by their employer, except where employees have been given notice or where the employer has a covert surveillance authority.
Note: The Workplace Surveillance Act 2005 (NSW) does not regulate listening devices. The use of listening devices is generally governed by separate surveillance devices legislation.

Permission
The Act provides for the issue of covert surveillance authorities by magistrates and regulates the carrying out of surveillance under a covert surveillance authority and storage of covert surveillance records.

Prohibited/restricted surveillance
The Act prohibits or restricts the following: 

  • prohibits surveillance in a change room, toilet facility, or shower or other bathing facility at a workplace

  • restricts and regulates the blocking by employers of emails and internet access of employees at work, particularly preventing employers from blocking access to emails or internet sites because the content relates to industrial matters

  • restriction on the use and disclosure of covert surveillance records.

General notice requirements
Under the Act, written (or emailed) notice must be given at least 14 days prior to any surveillance commencing. This 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 continued or intermittent

  • whether surveillance will be for a specified limited period or otherwise.

For new employees, notification must be given before they start work.

Additional camera/video surveillance notice requirements
Cameras used for surveillance (or camera casings or other equipment that would generally indicate the presence of a camera) must be clearly visible in the place where the surveillance is taking place. Signs must also notify people they may be under surveillance in that place and must be clearly visible at each entrance to that place. 

Additional computer surveillance notice requirements
Computer, internet or email surveillance of an employee must not be carried out unless the surveillance is carried out in accordance with a computer surveillance policy of the employer. The employee must be notified in advance of that policy in such a way that it is reasonable to assume they are aware of and understand the policy. The notification requirements are flexible so employers can meet them in different ways.

Additional tracking surveillance notice requirements
There must be a notice clearly visible on the vehicle (or other thing) being tracked, indicating the vehicle (or thing) is the subject of tracking surveillance.

 

Workplace surveillance laws in VIC

Workplace surveillance in Victoria is subject to the Surveillance Devices (Workplace Privacy) Act 2006 (VIC). Under this legislation, employers cannot use listening devices, optical surveillance devices (such as video cameras) or tracking devices (such as GPS tracking devices) for surveillance of workers in workplace toilets, washrooms, change rooms, or lactation rooms.

In addition, employers are prohibited from communicating or publishing material obtained through surveillance. These prohibitions apply to all private and public sector employers, regardless of whether they are partnerships, businesses or companies.

Permitted circumstances
The prohibitions under the Act are not absolute, allowing surveillance in three limited circumstances:

  • where a warrant or emergency authorisation has been granted to permit surveillance

  • in accordance with Commonwealth law (eg a law relating to national security)

  • where required as a condition of a liquor licence (eg in a licensed venue).

In relation to these three circumstances, information obtained from surveillance may only be used in accordance with the relevant warrant, Commonwealth law, or licence requirement.

 

Privacy considerations

Employers should also consider their obligations under the Privacy Act 1988 (Cth) and any applicable state or territory privacy laws when collecting, using, storing or disclosing personal information obtained through workplace surveillance.

Particular care should be taken when handling biometric information, which may be considered sensitive personal information and can attract additional privacy obligations.

 

Before implementing workplace surveillance

Before introducing workplace surveillance, employers should:

  • identify and document a legitimate business purpose

  • confirm compliance with applicable surveillance and privacy laws

  • provide required notices to employees

  • implement clear written surveillance policies

  • limit monitoring to what is reasonably necessary for the stated purpose

  • ensure surveillance records are securely stored

  • regularly review surveillance practices to ensure ongoing compliance.

Note: This information is general in nature. Workplace surveillance laws vary significantly between jurisdictions and employers should obtain legal or workplace relations advice specific to their circumstances.