Like most employers, you may only consider whether you are permitted to conduct surveillance on employees following allegations of misconduct. In such circumstances, you may seek to conduct an investigation that is compliant with relevant laws and which you can rely on for disciplinary action. However, to be compliant with relevant laws, it is important to consider such questions before undergoing investigation. This article explains:
- what surveillance is;
- why it is important;
- what the law says; and
- some practical steps to take.
What Is Workplace Surveillance?
Workplace surveillance means surveillance conducted by employers on their employees. This is regardless of whether you intend it for that purpose or not. For example, you may use surveillance in a shop for the security of customers to conduct surveillance on employees. This amounts to workplace surveillance.
You can conduct surveillance in different ways and these may vary depending on the nature of the work. It could include:
- reviewing and accessing employees' email accounts or emails;
- reviewing and accessing employees' files;
- accessing employees' work computer;
- audio recording all inbound and outbound calls made and received by employees for training and quality purposes;
- recording internet usage by employees (including sites and pages visited, files downloaded, video and audio files accessed and data input);
- using CCTV cameras; and
- using GPS tracking.
Why Are Rules Relating to Workplace Surveillance Relevant?
Understanding your rights and obligations relating to workplace surveillance is relevant in circumstances where you take disciplinary action, including employee termination. For example, suppose an employee is accused of sexual harassment over Slack. In that case, you may wish to access the alleged harassing employee's Slack messages. Similarly, if you have concerns an employee is defrauding you by expensing travel that is not in connection with the performance of their duties, you may wish to review their GPS tracking.
Specifically, in circumstances where you move to termination, whether you have complied with workplace surveillance laws may be relevant to whether the dismissal was fair in the context of an unfair dismissal claim. It may also be relevant to whether the evidence is admissible in circumstances where a claim progresses to formal court proceedings.
How Can You Conduct Workplace Surveillance in Accordance With the Law?
State or territory laws govern workplace surveillance.
New South Wales and the Australian Capital Territory
Workplace surveillance is covered in NSW and ACT under the Workplace Surveillance Act 2005 (NSW) and the Workplace Privacy Act 2011 (ACT). Both laws have similar general requirements:
- you must put employees on notice before commencing surveillance. The notice is 14 days unless it is waived by the employee (which can be done in the employment agreement);
- the notice must include:
- 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 specified limited period or ongoing; and
- Under ACT legislation, the purpose for which the employer may use and disclose surveillance records of the surveillance;
- you must have a policy relating to workplace surveillance and surveillance must be carried out in accordance with this policy;
- for camera surveillance, cameras must be clearly visible and there must be signs notifying people they are under camera surveillance; and
- for tracking, there must be a notice or other thing that puts the employee on notice that they are under tracking surveillance.
Victoria, Western Australia, South Australia and the Northern Territory
There is no specific workplace surveillance legislation in Victoria, WA or the NT. Rather, there is general legislation relating to surveillance. Broadly, these states and territories do not permit optical or listening devices, unless it is consented to or unless another exemption applies. For example, if it is reasonably necessary for the protection of any person's lawful interests and the occupier of the premises authorises the installation.
The Victorian legislation specifically prohibits employers from installing optical or listening devices in:
- change rooms; or
It further requires consent to install and use tracking devices. On that basis, you may wish to seek employees consent in their employment agreements.
Queensland and Tasmania
There is no specific surveillance legislation other than general legislation. For example, in Queensland, a person who records a person where a reasonable adult would be expected to be afforded privacy is guilty of an offence under criminal law. This will depend on circumstances.
What Practical Steps Can You Take?
In most states and territories, you should consider seeking employees consent if you intend to:
- undertake surveillance; and
- track or install and use listening or optical devices.
For example, you could set it out in their employment agreement or seek their agreement over email.
If your employees are based in NSW or the ACT, you should ensure you comply with your notification requirements. This can be done in the employment agreement or in a policy. If you intend to conduct surveillance on new employees from their commencement date, consider seeking their agreement in the employment agreement to waive their 14 day notice period. You must have a policy that speaks to workplace surveillance. Although, the legislation does not specify what the policy must include unless you intend to meet your notification requirements in the policy.
For tracking and camera surveillance, you should ensure employees are on notice with signage and ensuring the cameras are obvious (for camera surveillance).
Understanding your obligations under workplace surveillance laws can be a difficult exercise. Especially in circumstances where the laws are different in each state or territory. However, it is crucial to understand them, given they may impact your liability in an unfair dismissal claim or other proceedings. On that basis, it is important to consider whether your employment agreement includes terms seeking consent to undertake the surveillance and complying with the notification requirements if the employee is in NSW or ACT.