An area of the law that largely goes unrecognised in a number of workplaces, is workplace surveillance. Often it is only when an incident occurs and the employer wishes to take disciplinary or other action, that they discover that there is a whole raft of provisions which employers must observe if they wish to surveil the activities of their workforce.
This information sheet sets out key obligations of NSW employers with respect to surveilling the activities of their employees. It also reviews existing legal obligations with respect to the recording of private conversations and examines impending legislative change in this area.
Requirement to notify employees that workplace surveillance is being carried out
An employer may carry out surveillance in most areas of the workplace. However change rooms, toilets or showers or other bathing facilities must not be subject to any surveillance.
Surveillance is defined in the relevant legislation (Workplace Surveillance Act 2005 [NSW]) to include:
- Camera surveillance (meaning surveillance by camera that monitors or records images of activities);
- Computer surveillance (meaning surveillance by software or other equipment that monitors or records information input or output from a computer and other use of a computer including sending and receiving emails and accessing internet websites);
- Tracking surveillance (meaning surveillance by an electronic device which is used to monitor or record a geographical location or movement such as a global positioning system tracking device).
Not all monitoring or recording of computer usage constitutes "surveillance", as the legislation relates to surveillance in the sense in which the word is ordinarily understood. Therefore computer surveillance would not for example, cover usual business practices such as back ups, saving of documents, network performance monitoring, computer or asset tracking however if a back-up (for example) was later used by an employer to determine an employee's computer activity, it may at that point become "computer surveillance".
With the exception of covert surveillance (see below), if an employer wishes to surveil employees at work, then the employer must ensure that the employees have adequate notice of the proposed surveillance.
Generally speaking, existing employees must be given 14 days' written notice (email constitutes written notice) of the surveillance prior to it commencing, unless the employees agree to a shorter period. New employees must be given notice of the surveillance before the employee starts work.
The notice must indicate:
The kind 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;
- Whether the surveillance will be for a specifi ed limited period or ongoing.
Additional requirements for camera surveillance
An employer must not carry out camera surveillance on an employee unless:
- The camera used for the surveillance (or camera casings and other equipment) are clearly visible in the place where the surveillance is taking place; and
- There are signs notifying people " that they may be under surveillance in that place which are clearly visible at each entrance to that place.
Additional requirements for computer surveillance An employer must not carry out computer surveillance unless:
- The surveillance is carried out in accordance with the policy of the employer on computer surveillance of employees at work; and
- The employee has been notifi ed in advance of that policy in such a way that it is reasonable to assume that the employee is aware of and understands the policy.
Additional requirements for tracking surveillance
If an employer wishes to surveil an employee by tracking the geographical locations to which that employee drives a vehicle, the employer must put a notice clearly visible on the vehicle which indicates that it is the subject of tracking surveillance.
Restrictions on an employer's ability to block an employee's emails or internet access
An employer must not prevent employees from sending or receiving emails or accessing the internet unless:
- The employer has a policy on email and internet access notified in advance to the employee and the employer is acting in accordance with such policy (and it is reasonable to assume the employee is aware of and understands the policy); and
- Additionally where delivery of an email is prevented, the employee is given notice (prevented delivery notice) of the non-delivery of the email (unless a prevented delivery notice is not required to be given).
The employer will not have to give a prevented delivery notice if delivery of the email was prevented in the belief that or because of a program that, was intended to prevent delivery on the basis that:
- The email was spam;
- The email may have damaged the computer network of the employer; or
- The email attachment was menacing, harassing or offensive.
An employer's email and internet policy must not prevent delivery of an email or access to a website merely because the message or website relates to industrial matters. It is critical that every employer has a comprehensive acceptable use policy for the use of employer supplied computer and communications equipment.
Use of surveillance records
Where an employer carries out workplace surveillance (not being covert surveillance), they must ensure that any surveillance record made as a result of such surveillance is not used or disclosed except:
- For the legitimate business activities of the employer including the employment of employees;
- In connection with disclosure to a member of a law enforcement agency;
- For use in civil or criminal proceedings;
- Where use or disclosure is reasonably believed to be necessary to avert serious violence to persons or substantial damage to property.
Covert surveillance of employees at work
The legislation makes specifi c provision for an employer to apply to a Magistrate for what is known as a covert surveillance authority ("authority") if the employer wishes to carry out covert surveillance of its employees at work. An authority may only be used for the purpose of seeking to establish whether or not particular employees have engaged in unlawful activity. There is an obligation on an employer who receives an authority to furnish a report to the Magistrate after its expiry. Information obtained following surveillance pursuant to an authority can only be used for purposes specified in the legislation.
Offences by corporations
If a corporation contravenes the Workplace Surveillance Act 2005 [NSW] then each person who is a director of the corporation or who is concerned in the management of the corporation, will be taken to have contravened the Act, if such person knowingly authorised or permitted the contravention.
Use of listening devices
Employers should be aware of legislation which regulates their ability to mechanically record private conversations. This area of law has been regulated by the Listening Devices Act 1984. This legislation was repealed and replaced at the beginning of August 2008 by the Surveillance Devices Act 2007 (which received assent on 23 November 2007). Accordingly, set out below is a summary of the requirements under the new legislation which deal with the recording of private conversations using mechanical recording devices.
Prohibition on use of listening devices
A person must not use a listening device (being a device that can overhear, record, monitor or listen to a conversation) to record or listen to a private conversation (including a conversation at which that person is present) unless one of a number of exceptions exist, including the following:
- Use of the listening device has been authorised under the legislation;
- Where the person using a listening device was not a party to the private conversation, hearing of the private conversation was unintentional;
- The listening device was used to record refusal to consent to an interview with members of the NSW Police Force;
- The person recording the private conversation was a party to the conversation and all of the "principal parties" to the conversation (includes a person by whom or to whom words are spoken) expressly or impliedly agreed to the listening device being used;
- Where the recording was reasonably necessary to protect the lawful interests of a principal party (who consents to the recording);
- Where the recording was not made for the purpose of communicating the conversation to third parties (and a principal party consents).
Therefore employees wishing to mechanically record private conversations in the workplace should ensure that any mechanical recording of a private conversation complies with the legislation. In particular they should ensure they have the consent of the principal parties to a private conversation to a listening device being used, or that such conduct is otherwise permitted.
Conclusion
Employers who conduct or propose to conduct workplace surveillance should ensure that they have suitable workplace policies and employment contract provisions dealing with workplace surveillance. Employers should be satisfi ed that all employees have been given and have acknowledged receipt of, appropriate notice of the surveillance policy and that prospective employees are similarly notifi ed, before commencing employment.
However, employers must also have a reason to believe that not only was the policy received but that it was understood. Being able to produce a copy of the notice or policy signed by an employee on commencement of employment may not be enough.
As with any compliance program, an employer needs to be able to show each of the following elements:
- A clear and detailed policy framework
- Appropriate resources for implementation
- Ongoing communication and training
- Regular monitoring of performance and of how breaches are handled
- Regular review of what is working, what isn't and implementing improvements.
Any notice or policy must be clear, succinct and written in language that the employee can understand. For employees from non-English speaking backgrounds, it may be necessary to provide a copy of the policy or a summary, in the employee's principal language.
Policy awareness training must support the giving of notice, to aid (and prove) understanding. The system has to include regular, timely and clear reminders, testing of levels of understanding and compliance, and appropriate further training or other remedial action.
If an employer decides to use camera surveillance, they should ensure that appropriate signage is put up in accordance with the legislation.
Employers who wish to restrict workplace access to email or the internet or block emails should review their internet and email policies to ensure that the policies refl ect their workplace practices.
In circumstances where an employer wishes to record a private conversation they should bear in mind their statutory obligations.
Finally, employers who fail to comply with their statutory obligations with respect to surveillance or recording of private conversations, apart from risking prosecution, may find that any evidence obtained unlawfully, may not be capable of being used in any legal proceedings.
Swaab was recently named winner 'Best Law Firm in Australia (Revenue < $20m)' and 'Attribute Award for Exceptional Service (Australia Wide)' and at the 2008 BRW- Client Choice Awards.
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.