Workplace video surveillance act set to commence

Cases

Workplace video surveillance act set to commence

The NSW Workplace Video Surveillance Act 1998 (see HR Link 84/98, 17 July 1998) received assent on 29 June 1998.

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The NSW Workplace Video Surveillance Act 1998(see HR Link 84/98, 17 July 1998) received assent on 29 June 1998. The Attorney-General's Department has informed Australian Business that the Actis intended to come into force on 1 February 1999. The department has also said that Regulations are to be made under the Actand should be published on Friday 29 January 1999. The regulations should also commence on 1 February 1999.

 

'Covert' and 'overt' video surveillance

The Actmakes a distinction between 'overt' and 'covert' workplace video surveillance and sets out the procedural requirements that must be complied with in order for the surveillance to be lawful. The Actpresumes that all workplace video surveillance is 'covert'. Workplace video surveillance will be 'covert' unless all of the following three conditions are satisfied: 

  1. Employees have been notified in writing of the intended video surveillance at least 14 days before the intended surveillance (or if the employer has obtained the agreement of the employees to a lesser period of notice, that period); and
  2. Cameras used for the video surveillance of any part of the workplace (or camera casings or other equipment that would generally indicate the presence of a camera) are clearly visible in that part of the workplace; and
  3. Signs notifying people they may be under video surveillance in the workplace, and which are clearly visible at each entrance to the parts of the workplace in which surveillance is taking place.

If all three of these conditions are met, then the workplace video surveillance is 'overt'. However, if all of these conditions are not met, then the workplace video surveillance is 'covert' and there is an elaborate set of requirements that must be complied with before such 'covert' workplace video surveillance is lawful.

 

Offences relating to 'covert' surveillance

The Actprovides that an employer must not carry out, or cause to be carried out, 'covert' workplace video surveillance unless two conditions are satisfied:

  1. The covert video surveillance is carried out solely for the purpose of establishing whether or not an employee is involved in any unlawful activity in the workplace; and
  2. The covert video surveillance is authorised by a 'covert surveillance authority'.

If these two conditions are not met, the employer commits an offence for which the maximum penalty is 20 penalty units (i.e. a maximum of $2,200).

 

Employers have a defence

Employers will have a defence to this offence if the covert workplace video surveillance:

  • was carried out solely for the purpose of ensuring the security of the workplace or persons in it and that video surveillance of any employee was extrinsic to that purpose; and
  • there was a real and significant likelihood of the security of the workplace or persons in it being jeopardised if covert video surveillance was not carried out; and
  • the employer had notified employees at the workplace (or a body representing a substantial number of the employees) in writing of the intended video surveillance for the above purposes before the covert video surveillance was carried out.
Offence of using video recordings from surveillance for irrelevant purpose

It is an offence for any person to use a recording of the activities of an employee or any other person obtained as a consequence of covert video surveillance of the employee in the workplace authorised by a 'covert surveillance authority' for an irrelevant purpose. The maximum penalty is 20 penalty units. An irrelevant purpose is a purpose that is not directly or indirectly related to:

  • establishing whether or not an employee is involved in unlawful activity in the workplace in accordance with the authority conferred by the 'covert surveillance authority'; or
  • taking disciplinary action or legal proceedings against an employee as a consequence of any alleged unlawful activity in the workplace;
  • establishing security arrangements or taking other measures to prevent or minimise the opportunity for unlawful activity of a kind identified by the recording to occur in the workplace;
  • taking any other action authorised or required by or under the Act.
A 'covert surveillance authority'

As noted above, in order for covert surveillance to be lawful, an employer must obtain a 'covert surveillance authority' and the covert video surveillance must be carried out solely for the purpose of establishing whether or not the employee is involved in any unlawful activity in the workplace. To obtain a 'covert surveillance authority', an application has to be made to a Magistrate. The application must include the following information:

  • the grounds the employer has for suspecting that a particular employee is or employees are involved in unlawful activity; and
  • whether other managerial or investigative procedures have been undertaken to detect the unlawful activity and what had been the outcome; and
  • who and what will regularly or ordinarily be in view of the cameras; and
  • the dates and times during which the covert video surveillance is proposed to be conducted.

The application must also nominate each licensed security operator who will oversee the conduct of the covert video surveillance operation. This means that in order to conduct covert surveillance, an employer must obtain the services of a licensed security operator to oversee the operation.

The Actprovides that the covert surveillance authority cannot exceed 30 days in duration and can, at any time, be varied or cancelled. Also, the employer must provide a written report to the Magistrate setting out the result of the surveillance within 30 days of the expiry of the covert surveillance authority.

It is an offence to provide false or misleading information to a Magistrate. The maximum penalty is 100 penalty units (i.e. $11,000). There are also penalties for licensed security operators who do not oversee the operation in accordance with the Act.

The Actprovides that a judicial member of the Industrial Relations Commission can issue, vary or cancel an authority where an applicant feels aggrieved at the decision of the Magistrate.

It is of significance that covert surveillance is not permitted:

  • for the purpose of monitoring the employee's work performance; or
  • in any change room or toilet facility or shower or other bathing facility in the workplace.

It is also of interest that the Magistrate, whose job it is to decide whether to issue a covert surveillance authority, must have regard to whether the covert surveillance of the employee or employees might unduly intrude on their privacy or the privacy of another person. The Magistrate must also have regard to an employee's heightened expectation of privacy where the covert surveillance is to occur in a recreation room, meal room or any other area at the workplace where employees are not directly engaged in work.

 

Conclusion

The procedures relating to covert surveillance are extremely complex. Advice should always be sought where covert surveillance is being considered. If covert surveillance is not necessary, employers will still have to comply with the considerable burden imposed by the requirements relating to overt surveillance.

 

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