Surveillance in the workplace

There may be circumstances when the employer may deem it necessary to conduct covert or overt surveillance to obtain evidence of dishonest behaviour by members of the workforce.

 
 
Overview
 
Legislation
 
Specific workplace privacy legislation exists in New South Wales and the Australian Capital Territory. Legislation governing the use of electronic surveillance or monitoring of employees is inconsistent between state and territory jurisdictions.
 
In most cases, legislation is device-specific and applies more broadly than in the workplace. For example, the Listening and Surveillance Devices Act 1972 [SA] applies to the use of listening and surveillance devices in South Australia. Although this legislation is not workplace-specific, it would apply to many workplaces.

While Western Australia and the Northern Territory have legislation regulating video or visual surveillance of private activities, New South Wales and the Australian Capital Territory are the only jurisdictions that have legislation specifically relating to workplace surveillance. Both statutes impose strict procedures to which an employer must comply in obtaining permission to perform covert surveillance in the workplace.
 
Limited workplace privacy provisions also exist in Victoria, where the relevant legislation applies more broadly than workplaces, and applies to listening, tracking and optical surveillance devices. For example, it is unlawful for an employer to conduct surveillance of workers in a washroom, change room, lactation room or toilet. Consent rather than notification is required to conduct optical and tracking surveillance in Victoria.
 
Types of surveillance
 
The types of surveillance and monitoring devices that might be used include:
  • optical video (camera/video)
  • tracking (eg Global Positioning System (GPS))
  • listening devices
  • telephone
  • computer
  • biometrics, particularly in respect of time and attendance (involving the use of technology to recognise people on the basis of innate physical characteristics such as fingerprints, iris pattern, DNA, handwriting or gait).
State and territory legislation
 
In most states and territories, surveillance legislation is device-specific and applies more broadly than in the workplace, eg Listening and Surveillance Devices Act 1972 [SA], Surveillance Devices Act 1998 [WA] and Surveillance Devices Act 2007 [NT], so although this legislation is not workplace-specific, it would apply to many workplaces. Specific workplace privacy legislation exists in New South Wales and, in a more limited manner, in Victoria.
 
NSW legislation
 
The Workplace Surveillance Act 2005 [NSW] relates to the employer’s use of technology including video cameras, computers and tracking devices, to monitor employees and 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.
 
‘Covert surveillance’ means surveillance of an employee while at work for an employer carried out by the employer and not carried out or caused to be carried out by the employer and not carried out in compliance with the Act.
 
‘Surveillance’ of an employee means surveillance of an employee by any of the following means:
  • ‘camera surveillance’, which is surveillance by means of a camera that monitors or records visual images or activities on premises or in any other place
  • ‘computer surveillance’, which is surveillance by means of software or other equipment that monitors or records the information or input or output, or other use, of a computer (including the sending and receipt of emails and accessing of internet websites)
  • ‘tracking surveillance’, which is surveillance by means of an electronic device the primary purpose of which is to monitor or record geographical location or movement (such as Global Positioning System tracking device).
The Act does not apply to surveillance by means of a listening device or if a camera is used to record a private conversation. See Surveillance Devices Act 2007 [NSW].
 
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 that they may be under surveillance in that place and must be clearly visible at each entrance to that place.
 
Additional tracking surveillance notice requirements
 
There must be a notice clearly visible on the vehicle (or other thing) that is being tracked, indicating that the vehicle (or thing) is the subject of tracking surveillance.
 
Additional computer surveillance notice requirements
 
Computer/internet/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 that he or she is aware of and understands the policy. The notification requirements are flexible so that employers can meet them in different ways.
 
The Act does not prevent or significantly restrict employers from conducting email and internet surveillance. All the Act requires is that notice of such surveillance is given. It should be noted that not all monitoring or recording of the use of a computer is ‘computer surveillance’.
 
Computer surveillance does not cover normal business practices such as back-ups of hard drives, network performance monitoring, software licence monitoring, computer asset tracking, computer asset management or the normal saving of documents. These are not normally considered to be ‘surveillance’ activities. However, if back-ups, for instance, were used to conduct surveillance to facilitate the reading of somebody’s emails, that would need to be notified to employees, otherwise it would be considered to be covert surveillance.
 
The Act also places restrictions on the blocking of emails. Employers will be required to give notice to an employee on any occasion when an email message is sent by or to the employee is blocked. Notice is not required if the email has been blocked because it was spam, contained a virus, or would be regarded by reasonable persons as being menacing, harassing or offensive, eg pornographic material, or involving criminal activity. It is unlawful for an employer to block an email message, or access to a website:
  • other than in accordance with the employer’s stated policy on email and internet use; or
  • merely because the message or website includes information relating to industrial matters.

 

Vic legislation

Overview
 
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.
 
Computer surveillance
 
Generally, employers have a right to monitor company-supplied computers and other technology, such as wireless handheld devices, provided that this is done in accordance with any relevant policies or procedures.
 
The privacy of email and internet communications at work is only directly protected by legislation in New South Wales and the Australian Capital Territory. Other than where a magistrate has issued a covert surveillance authority, computer surveillance must be carried out in accordance with a policy of the employer on computer surveillance of employees at work, and the employee must have been notified in advance of that policy in such a way that it is reasonable to assume the employee is aware of and understands the policy.
 
The New South Wales and Australian Capital Territory legislation also restricts employers from blocking employees’ emails and internet access at work. In particular, they prevent employers from blocking access to emails or internet sites because the content relates to industrial matters.
 
Neither of those statutes would cover normal business practice — such as backups of hard drives, network performance monitoring, software licence monitoring, computer asset tracking, computer asset management or the normal saving of documents — because these are not normally considered to be surveillance activities.
 
Telecommunications interruption and listening devices
 
With respect to telephone communications, 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.
 
Listening and surveillance devices legislation in each state generally 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.
 
Bio or bodily privacy
 
Bio or bodily privacy is concerned with an individual’s privacy relating to medical assessments, drug and alcohol testing, psychometric testing and genetic tests.
 
Pre-employment medical and physical testing is often used as part of the selection process, particularly where the job requires a degree of physicality, where duties are performed in a dangerous environment or if the employee is required to use heavy machinery. Pre-employment psychometric testing is often used by employers in assessing candidates’ suitability for the role.
 
The individual’s consent must be obtained before any test is conducted. Any physical testing conducted on an employee without their consent amounts to assault.
 
The results of physical and medical tests are highly sensitive and protected by the information privacy laws described above. Test results should not be disclosed to persons other than those involved in recruitment without confirming that legal authority exists.

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