Recently outrage was sparked at the Daily Telegraph in the UK
when employees came to work to find plastic monitoring boxes
attached to their desks. Employees discovered that the boxes were
produced by OccupEye and could be used to monitor whether
individuals were at their desks. The employees had not been advised
that these boxes were going to be installed, nor about their
If I were to arrive at work to find that my movements were to be
monitored in that way, I would feel that my employer had no trust
in me and that direct monitoring of time at my desk was both
intrusive and missing the point about my work output which is not
directly related to time spent at my desk. Is this Big Brother
style form of management justifiable in NSW, or would there have
been some unlawful infringement of my workplace rights?
Under the Workplace Surveillance Act 2005 (NSW), employers must
notify their employees of workplace surveillance, which includes
surveillance by cameras, computers (which track and monitor
computer use), and also "tracking surveillance". Tracking
surveillance is defined as "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". So even though this
suggests tracking surveillance of the type you would associate with
tracking a company vehicle, a device such as the OccupEye would
also fall within this definition as its purpose is to monitor
Overt surveillance is permissible under the Act, provided the
employer meets notification requirements. Employers must provide
notice to employees at least 14 days before surveillance commences,
of the kind of surveillance to be carried out, how it will be
carried out, when it will start, whether it will be continuous or
intermittent and whether it will be for a specified limited period,
or ongoing. What if the OccupEye was not readily visible, so that
it operated like a bug? Covert surveillance of an employee is only
legal if it has been approved by a Magistrate, and would usually
only be given where the employer can show a good reason, such as
suspected theft or other illegal behaviour, not for general
surveillance or supervisory purposes.
If the requirements of the Act are complied with, and advance
notice is provided, the surveillance will be legal, but employers
still need to consider questions of mutual trust and morale, and
how the surveillance will affect the general relationship with
employees. Is the monitoring a reasonable request? Is it
justifiable and in line with the culture of the company? Is it
suitable to deal with whatever issues the employer is attempting to
address? If not, it may be time to consider alternative measures.
Cameras for security purposes, and computer monitoring for
offensive or inappropriate conduct are generally accepted.
Surveillance with Big Brother overtones is not.
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.
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