New legislation regulates surveillance of employees in the ACT

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New legislation regulates surveillance of employees in the ACT

Legislation regulating the surveillance of employees in ACT workplaces has been in effect since 10 March.

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Legislation regulating the surveillance of employees in ACT workplaces is now in effect.
 
The Workplace Privacy Act 2011 passed through Parliament on 16 February and took effect on 10 March.
 
According to the Act’s explanatory statement, the object of the legislation is to strike a balance between a worker’s right to privacy with a business owner’s right to take reasonable steps to protect their business by requiring 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 that security cameras and other monitoring devices are being installed without the knowledge of employees. Similar arrangements have existed since 2005 in NSW under the Workplace Surveillance Act 2005.
 
Not all provisions of the Act are yet in force (see below).
 
Key provisions
 
The explanatory statement outlines the following provisions under the new Act:
  • Prohibited surveillance — surveillance of an area is prohibited on the grounds of an increased expectation of privacy in that area (eg hange 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 manner in which 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 that 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 that 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 that is being tracked. It should be noted that this may, in some circumstances, include smartphones where GPS data can be used to track location.
  • The process of notification consultation is required except where the employer is able to demonstrate to the Magistrates Court.
(a) A reasonable suspicion that an employee is engaging in unlawful activity; and
(b) That covert surveillance is necessary to prevent the unlawful activity; and
(c) The covert surveillance is conducted by a surveillance supervisor, a nominated responsible person who is authorised by the Magistrate to transfer relevant parts of the surveillance record to the employer, but not parts of records that don’t relate to the unlawful activity specified. 
  • Employers must take reasonable care of surveillance records generated by notified surveillance.
  • There are limitations on the use of surveillance data. Namely, it is an offence to use or disclose surveillance records for anything other than a legitimate purpose. This effectively prohibits the usage of surveillance records generated by workplace surveillance for anything other than workplace or legal activity.
  • Workers have a limited right to access data their employers have collected on them through surveillance.
 
Commencement
 
The requirements for prohibited surveillance commenced on 24 March. The requirements for notified and covert surveillance will commence 6 months after the Act’s notification day.
 
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