Workplace surveillance – when is it legal?
Employers in NSW use various means of technology to monitor the behaviour of their employees and what is generally occurring in their workplaces. Other reasons for surveillance in the workplace may include detecting theft or fraud, or to assist in monitoring work, health and safety issues (so that it has a clear record of any workplace incidents).
Over recent years, technology has increasingly been used to monitor employees. For example, increasing coverage of CCTV in workplaces and tracking the location of employees via GPS systems attached to vehicles. 'Spyware' has also been used to track computer and internet access and usage. However, the surveillance of employees, and particularly, how information obtained by surveillance can be used, is an issue that features regularly in employment-related disputes.
In this article, we summarise the laws that regulate the surveillance of employees and workplaces in NSW and how the Fair Work Commission has dealt with evidence obtained by surveillance in two recent cases.
Relevant workplace surveillance legislation and requirements in NSW
The applicable workplace-related legislation in NSW is the Workplace Surveillance Act 2005 (WS Act).
The purpose of the WS Act is to regulate the use of optical, audio, electronic and tracking surveillance in the workplace. In summary, the WS Act sets out:
- requirements for employers to notify employees on the kind of surveillance that is proposed to be used, how it will be carried out, when it will start, whether continuous or intermittent and for a specified period or ongoing
- requirements for camera surveillance, computer surveillance or tracking surveillance
- prohibited types of surveillance
- restrictions on convert surveillance and the storage of surveillance records
- provisions for surveillance by consent.
Specifically, with regard to notification, the WS Act requires that an employer provide an employee with at least 14 days' written notice before commencing workplace surveillance, or a lesser period if the employee agrees. The notice must explain:
- the type of surveillance (for instance, whether it includes audio or tracking)
- the date and time that the surveillance will start
- whether the surveillance is continuous or intermittent
- whether it is for a certain period or an ongoing practice.
Camera surveillance must not be carried out unless the cameras are clearly visible and there are signs at each entrance to the work premises notifying employees they are under surveillance.
Surveillance of employee computers can only occur when there is an existing policy in place, and the employer provides notice in advance and ensures that the employees understand the policy.
Surveillance will also only comply with the requirements of the WS Act if the employee has agreed to the surveillance at the premises for a purpose other than the surveillance of employees, and the surveillance in question is carried out in accordance with that agreement.
The use of surveillance devices in NSW is also regulated by the Surveillance Devices Act 2007 (NSW) (SD Act). A surveillance device is defined as being a listening device, data surveillance device, an optical device or a tracking device. The SD Act covers:
- the installation, use and maintenance of surveillance devices
- the requirements for law enforcement obtaining warrants and emergency authorisation
- restrictions of the use, communication and publication of information obtained by surveillance devices
- reporting and recordkeeping.
The maximum penalty for non-compliance with the WS Act is $55,000. However, more significant penalties apply under the SD Act, with most offences carrying a maximum penalty of $550,000 (for corporations) and $110,000 (for individuals) and/or five years imprisonment.
Prohibited workplace surveillance NSW
Covert workplace surveillance is surveillance that takes place without the awareness of employees. This kind of surveillance is strictly prohibited in NSW. The only exception is for an employer with covert surveillance authority issued by a magistrate (which can only be issued if the court is satisfied that relevant criteria have been met).
There are also specific areas of a workplace that cannot be monitored, including toilets, changing rooms and shower facilities. Any permitted surveillance must not record (even inadvertently) an area where an employee has an expectation of and right to privacy.
The most common issue that arises in the Fair Work Commission (FWC) regarding evidence obtained by way of surveillance is how that evidence has been obtained, and whether it will consequently be accepted into the proceedings.
The two cases below illustrate that whether or not the FWC will accept evidence obtained 'improperly' depends on each case's circumstances, rather than a clear approach that applies to all.
This is in keeping with the fact that the FWC is technically not bound by the rules of evidence and can inform itself as it sees fit, i.e., it has much more discretion regarding what evidence it will admit and take into account than a court. However, the bar for the FWC to exercise that discretion will be raised, and it will be consequently less likely that evidence will be admitted, if it has been improperly obtained (e.g., in a way that represents a breach of the relevant legislation).
Use of improperly obtained material by an employer
This question of whether an employer could rely upon improperly obtained surveillance material as evidence in defending an unfair dismissal application was considered by a Full Bench of the FWC in Krav Maga Defence Institute Pty Ltd t/a KMDI v Markovitch  FWCFB 4258 (Kra Maga).
In this matter, the employer used cameras at its martial arts gym to observe its employee, Mr Markovitch. The CCTV footage showed Mr Markovitch was using his phone on a number of occasions when he should have been supervising his classes. His employer consequently came to the view that Mr Markovitch was not properly performing his duties, and particularly, that he was not giving the proper amount of attention to supervising the students in his class. He was consequently summarily dismissed for breaching relevant policies. Mr Markovitch was aware the cameras which captured his misconduct were operating, but the employer did not provide 14 days' notice of surveillance coming into operation and there were no signs advising that the cameras were operating.
At first instance, the FWC determined that the CCTV evidence had not been obtained in accordance with the requirements of the WS Act and was therefore inadmissible. However, the Full Bench overturned the first instance decision, upholding all grounds of the employer's appeal.
The Full Bench accepted there was sufficient evidence to support the employer's submission that the surveillance had occurred with the employee's agreement. The Full Bench held the agreement did not need to be in writing and could be implied. In this case, it was implied as Mr Markovitch had been involved in the installation of the cameras, authorised the payment for the installation of the cameras and had not objected to or complained about the cameras.
The Full Bench also accepted the surveillance was for a purpose other than the surveillance of employees, namely the protection of employees and students.
Reliance on surveillance materials by an employee
An example of where covert recordings by an employee was used to support their version of events was in Kelly Walker (No. 2)  FWC 4862. In this case, Ms Walker unsuccessfully attempted to have secret recordings of meetings with colleagues admitted as evidence in her application for an order to stop bullying and in support of allegations of breaches of various pieces of legislation, including the Fair Work Act 2009 (Cth), work health and safety legislation and whistleblowing laws. Ms Walker submitted to the FWC that a police officer had told her that she was able to, legally, secretly record conversations if she had a concern for her safety.
The employer submitted that the employee's covert recordings of conversations constituted a breach of section 7(1)(b) of the SD Act. Further, the employer provided a statement that it had obtained from the relevant police officer, in which he said that he advised Ms Walker that she could make written records of any meetings she attended, but at no stage had he advised her that she had the legal right to audio record any conversations between parties.
Deputy President Sams initially observed that, regardless of whether there was any subsequent finding by a court that there had or had not been a breach of the SD Act, the FWC may admit evidence, illegally obtained or otherwise, in order to inform itself "in such a manner as it considers appropriate". However, DP Sams then highlighted that secret recording is highly inappropriate, and referenced the observations of Deputy President Colman in Gadzikwa v Australian Government Department of Human Services  FWC 4878, where he stated:
"Unless there is a justification, I consider the secret recording of conversations with co-workers to be highly inappropriate, regardless of whether it may also constitute a criminal offence in the relevant jurisdiction... once it is known that a person has secretly recorded a conversation, this is apt to produce a sense of foreboding in others, an apprehension that they must be cautious and vigilant. This is potentially corrosive of a healthy and productive workplace environment.
Generally speaking, the secret recording of conversations with colleagues in the workplace is to be deprecated" (at ).
In deciding not to admit the recording into evidence, DP Sams relied on the following factors:
- the employee's claim that she had police authority to secretly record a meeting with her employer was found to be false
- there were issues of procedural fairness, as the employee's evidentiary case had long since closed when she sought to tender the evidence, and the employee had failed to identify how many meetings she had recorded
- it was becoming increasingly difficult to manage the case when new evidence was being 'drip fed' into the proceedings at inappropriate times and without the employer being given an opportunity to address new matters
- the case authorities upon which the employee sought to rely on were distinguishable from the employee's circumstances.
Accordingly, DP Sams rejected the employee's application to have the recorded evidence admitted.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.