IN BRIEF

New South Wales is one of the few Australian states which has dedicated legislation addressing surveillance in the workplace. The Workplace Surveillance Act 2005 (NSW) (the Act) deals with camera, computer and tracking surveillance. The Act provides that in some circumstances employers can surveil employees with their knowledge (overt surveillance) and in others, without their knowledge (covert surveillance).

OVERT SURVEILLANCE

The Act requires that employees be notified of any overt surveillance at least 14 days prior to the surveillance commencing. The Act specifies that the notice of surveillance must outline:

  • the type 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 continuous or intermittent; and
  • whether the surveillance will be for a specified limited period or ongoing.

This requirement of notification has meant that employment contracts and enterprise agreements now frequently contain workplace surveillance clauses notifying employees of surveillance in their workplace.

SPECIFIC REQUIREMENTS FOR DIFFERENT TYPES OF SURVEILLANCE

Camera surveillance
 Camera Surveillance is surveillance by means of a camera that monitors or records visual images of activities on premises or in any other place. The Act provides that employers must ensure surveillance cameras and other equipment associated with the cameras are clearly visible and that there are signs notifying people that they may be under surveillance visible at the entrance to the place the subject of camera surveillance.

Computer surveillance
 Computer Surveillance is surveillance by means of software or other equipment that monitors or records the information input or output, or other use, of a computer including, the sending and receipt of emails and the accessing of internet websites.

Under the Act there are two requirements for the carrying out of computer surveillance:

  • Computer surveillance of an employee can only be carried out in accordance with a policy of the employer on computer surveillance of employees at work; and
  • The employee must be notified in advance of the policy in a way which makes it reasonable to assume the employee is aware of and understands the policy.

The Act provides that employers must not carry out surveillance on an employee who is not at work unless the surveillance is computer surveillance of an employee's use of equipment or resources provided by or at the expense of the employer.
Provisions also exist which require an employer not to prevent delivery of emails sent to or by an employee, or access to an internet site, unless acting in accordance with a policy on these matters previously notified to the employee. Employers are generally also required to provide employees with "prevented delivery notices" where email delivery has been prevented (although this is subject to some exceptions).

Tracking surveillance
Tracking surveillance is surveillance by means of an electronic device the primary purpose of which is to monitor or record geographical location or movement (such as a Global Positioning System tracking device). The Act states that to track an employee in a vehicle using tracking surveillance, an employer must ensure a notice is clearly visible on the vehicle indicating the vehicle is subject to tracking surveillance.

COVERT SURVEILLANCE

Covert surveillance may take place where an employer suspects unlawful activity and first obtains a covert surveillance authority from a Magistrate authorising the surveillance of an employee. A covert surveillance authority will only be granted if:

  • The Magistrate is satisfied the application shows that reasonable grounds exist to justify issuing an authority.
  • The seriousness of the unlawful activity with which the application is concerned will be used to determine whether there are reasonable grounds.
  • If the Magistrate is considering whether to issue an authority authorising covert surveillance of a recreation room, meal room or any other area at a workplace where employees are not directly engaged in work, they must consider the affected employees' heightened expectation of privacy when in such an area.

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

WHAT DOES THIS MEAN?

  • Employers must ensure their current surveillance arrangements are in line with their statutory requirements above.
  • If Employers wish to surveil the computers of their staff they will need to ensure that they have an appropriate policy and have given the required notice.
  • Failure to comply with the legislation will not only result in a breach the legislation, but may also compromise the ability to rely upon as evidence, material obtained through computer surveillance.
  • Failure to have appropriate computer surveillance policies and systems in place may well impede an employer's ability to, amongst other things: appropriately monitor employees' activities for cyber bullying, misuse of confidential employer information and accessing and forwarding of inappropriate websites and material.
  • Employers should be aware that if they suspect an employee is engaged in unlawful activity at work then a covert surveillance authority may be sought.
  • Employers should audit their workplaces to ensure that there is appropriate signage in place and that cameras and equipment are visible.

For further information please contact:

Richard Ottley, Partner
Phone: + 61 2 9233 5544
Email: rbo@swaab.com.au

Laura Sowden,Solicitor
Phone: + 61 2 9233 5544
Email: lms@swaab.com.au

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.