Surveillance in the Workplace

In a workplace, it is normal for employers to monitor their employees. However, employers should also be clear about the level of privacy an employee can expect. Ultimately, employers have a responsibility to ensure they’re ethically and morally using surveillance in the workplace. Read on to learn the basics.

If you have any questions about workplace privacy and surveillance, Owen Hodge’s expert employment lawyers can help clarify employers’ (and employees’) legal rights and obligations.

What is surveillance in the workplace?

Surveillance in the workplace is when an employer uses surveillance methods/tools to monitor and collect information about employees. It can involve monitoring employee email, internet or other computer resources and/or the use of CCTV videos.

What is the purpose of workplace surveillance?

There are a number of reasons why workplace surveillance may take place:

1. To protect company property or detect theft
2. To ensure workplace safety
3. To determine if employees are engaged in unlawful activities (however, this must comply with both the Workplace Privacy Act and Workplace Surveillance Act in New South Wales)
4. To ensure staff are doing their work and using resources appropriately

However, the employer must ensure they follow all relevant Australian state or territory laws when conducting surveillance.

Workplace Privacy Act 2011

The main purpose of the Workplace Privacy Act 2011 (Act) is to regulate the collection and usage of workplace surveillance information. The Act regulates three kinds of workplace surveillance, namely:

1. Prohibited surveillance

The Act prohibits surveillance in places like toilets, parent rooms, and showers.

2. Notified surveillance

The Act requires an employer to give a prior written notice to the employees and surveillance should be conducted in accordance with the notice. The notice must be given at least 14 days prior to the commencement of the surveillance activity.

The written notice must state:

• The kind of surveillance device to be used
• The manner in which it is to be conducted
• Who will be subject to surveillance
• The duration of the surveillance
• Whether the surveillance will be continuous or for a stipulated period only
• The purpose for which the employer may use and disclose surveillance records

3. Covert surveillance

The Act permits an employer to conduct surveillance without the consent of employees to find out if any of the employees are engaged in unlawful activities. Before conducting any covert surveillance, the employer needs to seek consent from a Magistrate authorising such surveillance and ensure the retention and use of any information gathered with strict control.

The Magistrate shall grant the covert surveillance authority only when they are satisfied that there exists a reasonable ground for such surveillance in the workplace. A reasonable ground can include monitoring any unlawful act of an employee, such as:

• Workplace bullying
• Sexual harassment
• Breach of fiduciary duty

The Magistrate must also consider whether the covert surveillance might unduly intrude on employees or any other person’s privacy.

The Workplace Privacy Act prohibits employers from:

• Disclosing the surveillance records to anyone except to a Court or a law enforcement agency.
• Taking adverse action(s) based on activities captured by the surveillance records, unless otherwise stated in the notification provided to the employees in this regard.

An employer is liable to pay a penalty in the event any provision of the Act is contravened.

Workplace Surveillance Act 2005 (NSW)

The Workplace Surveillance Act 2005 (WS) came into effect on 23 June 2005 with the primary aim to regulate video surveillance and tracking and computer surveillance (the monitoring or recording of emails and access to internet websites).

The WS Act applies only to surveillances by camera, computer and tracking surveillance. It requires employers to comply with rules for both overt and covert surveillance.

The WS Act prohibits an employer from:

• Conducting surveillance in the workplace without prior notification to employees.
• Blocking an employee’s internet and email access in the workplace unless such prohibition conforms with the employer’s internet and email policy (which has previously been communicated to the employee).
• Using and disclosing the surveillance records unless:
  • It is required for any legitimate purpose of employment
  • It is requested by a law enforcement agency concerning an offence
  • It is for civil or criminal proceedings
  • It is for averting an impending threat of violence or damage to property
• Covert surveillance of employees for the purpose of establishing whether or not an employee is involved in any unlawful activity at work.
• Surveillance of employees in change rooms, bathrooms or toilets.
• Using a work surveillance device on an employee while he or she is not at work.

Consequences for breaching the WS Act

According to Section 43 of the WS Act, if a director of a corporation or a person concerned in the management of a corporation knowingly authorises or permits a contravention of the legislation, then that person is liable to be prosecuted as an individual. The local Court has the jurisdiction to try cases of offence arising out of such contraventions.

Owen Hodge is here to help

Surveillance in the workplace is a serious matter, and employers must ensure they’re complying with all of the relevant legislation. If you have any questions about this, or believe an employer has breached your workplace rights as a result of workplace surveillance, please speak to the lawyers at Owen Hodge.