On 24 August 2011 the Workplace Privacy Act 2011 (ACT) ('the WPA') will come into effect and regulate the collection and use of workplace surveillance information in the Australian Capital Territory by employers.
This will apply to CCTV footage in workplaces and also monitoring of data and computer use.
An employer conducts surveillance whether they conduct it personally or have someone else conduct it for them. A surveillance device is either a data surveillance device, optical surveillance device or a combination of the two.
The WPA also refers to a tracking device, which is an electronic device capable of being used to work out or monitor the location of a person or object.
The conduct of surveillance is dealt with under two broad categories, notified surveillance and covert surveillance.
Notified surveillance is conducted when an employee is notified in writing of the surveillance. That surveillance must then be conducted in accordance with the requirements set out in s13.
Notice must be given at least 14 days prior to the commencement of that surveillance, or in a shorter period if agreed to by the employee.
The written notice must state:
- The kind of surveillance device to be Used
- How surveillance will be conducted
- Who will typically be the subject of the surveillance
- When the surveillance will start
- Whether the surveillance will be continuous or intermittent
- The period of surveillance
- The purpose for which the employer may use and disclose the surveillance
- Information that employees may consult with the person conducting the surveillance about the conduct of that surveillance.
The notice may be given via a workplace policy or other appropriate document.
During the 14 day notice period the employer must consult in good faith with an employee who raises issues about the surveillance. A discussion will be deemed in good faith where the employee is given a genuine opportunity to influence the conduct of the surveillance.
A worker may agree to the conduct of surveillance for a purpose other than the surveillance of themselves, for instance in a casino or bar area to monitor patrons. Where the surveillance is conducted in accordance with that agreement, it is deemed compliant with the WPA.
A body that represents a substantial number of workers (such as a union) can agree to the surveillance on behalf of those workers.
Section 20 allows an employer to restrict and block an employee's electronic communications and internet access. Prior to enforcing those restrictions the employer must notify the employee of the policy in such a manner that it is reasonable to infer that the employee comprehends the policy. If delivery or access is stopped under s20, the employer must notify the employee as soon as practicable after the communication is stopped.
Section 22(3) outlines the circumstances where surveillance records may be disclosed or used.
Covert surveillance is surveillance in the workplace of which the employee is not notified.
To conduct covert surveillance, an employer must first apply to the ACT Magistrates Court. Applications will be heard in private.
If the Magistrates Court considers there are reasonable grounds to allow covert surveillance, they will issue an authority. The WPA outlines a number of key factors the court must consider in determining whether to grant an authority however they retain a general discretion.
Where covert surveillance is approved, an authority will be granted and a surveillance supervisor assigned. The authority will outline the details of the surveillance, which will govern the conduct of the surveillance, and is valid for 30 days.
Any grant of covert surveillance will still be subject to a number of conditions, as outlined in s31, and the grant can be varied or cancelled at any time by application or on the Magistrates Court's own initiative.
After a period of covert surveillance, the employer has 30 days to submit a written report setting out details of the surveillance. Once the report is submitted the Magistrates Court has the authority to determine what orders will be made in respect of the surveillance.
Section 41 precludes an employer from conducting surveillance in a number of nonwork areas and includes places such as toilets and change rooms.
An employer will also be prohibited from conducting surveillance of an employee whilst that employee is not in the workplace, see s42. However, if an employee is using equipment or resources provided by an employer, the employer may conduct surveillance using a data surveillance device or a tracking device where that tracking function cannot be de-activated, or the employer is a law enforcement agency. Section 44 imposes a duty on the employer to take reasonable steps to protect surveillance records.
Implications for workers compensation claims
When a workers compensation insurer conducts investigations into a claim, they do so in their own right, rather than as an agent of the employer, or through the doctrine of subrogation. Often the employer will not know when surveillance is conducted on a claimant.
As the insurer is not the employer it would seem that any surveillance in the context of a claim that they arrange need not conform to the WPA.
Having said that to avoid any doubt, claim related surveillance should not be conducted at the workplace.
It is prudent for all employers who notify employees of proposed surveillance to include in the notification that any surveillance carried out may be used for the purpose of workers compensation claims or other proceedings.
The WPA offers employees notice and some protection from invasive surveillance methods at work.
Employers can ensure compliance before the commencement of the WPA by engaging in the required notice and consultation now, for instance in respect of existing CCTV or email monitoring facilities.
A generalised 'surveillance policy' document distributed to staff will suffice for notice and a consultation period of 14 days must be in place following that notice.
For further information on ensuring your workplace is compliant with the Workplace Privacy Act 2011 (ACT) please contact Brendan Jones or Emma Reilly.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.