Emily Dempster and Nicole Davis examine the use of recording devices in the workplace and how this fits in with various employment, privacy and surveillance laws.
In brief: Are you recording employee activity? Are they aware of it? Recording devices are becoming an increasingly prevalent aspect of the modern workplace. The issue that employers face is how to reconcile this emerging technology with the various employment, privacy and surveillance laws that exist.
Within the last couple of years, the Fair Work Commission (FWC) and the Federal Court of Australia have handed down decisions that provide guidance to employers regarding the installation and use of recording devices in the workplace.
What you need to know
- The FWC has approved the use of driver-facing cameras where safety is the primary objective and adequate training is provided.
- If the employee does not know that he or she is being recorded, the employer probably cannot rely on the recording in any disciplinary proceedings.
- It is important for employers to be mindful of the applicable State-based surveillance laws when looking to rely on audio or video recordings.
When can you install this type of technology?
Recording devices must have a workplace safety basis and cannot be installed as a means to keep an eye on employees. In general, employers who intend to introduce an audio or video recording system must:
- Demonstrate that doing so is required to increase the safety of the working environment; and
- Ensure that employees undertake organised training about the operation of the system and the guidelines which apply to the use of the system.
The FWC dealt with the issue of installing recording devices in Toll North Pty Ltd & Anor v Transport Workers' Union of Australia  FWC 2945.
In 2011, Toll began installing both outward-facing and driver-facing cameras in its fleet of heavy vehicles across Australia. The camera systems are automatically activated by g-force events (such as rough roads, sharp cornering or harsh braking) and can be manually activated by the driver.
The purpose of the duel facing camera system is to obtain unbiased records of incidents (such as traffic accidents) and to gain an insight into potentially inappropriate driver behaviour (such as not wearing a seatbelt) and improving driver behaviour and performance.
The Victorian branch of the Transport Workers' Union (TWU) objected to the use of driver-facing cameras on the basis that:
- the Surveillance Devices Act 1999 (Vic) provided protection for drivers in these circumstances and driver-facing cameras infringed on the privacy of drivers within the workplace;
- Toll did not have appropriate policies and procedures in place regarding the use of the recordings from the driver-facing cameras;
- the Enterprise Agreement (EA) did not give Toll the power to install the cameras without the agreement of the TWU and its members; and
- it did not accept that the driver-facing cameras improved workplace safety.
As the TWU was unable to point to any pertinent provision within the Surveillance Devices Act 1999 (Vic), the FWC determined that the Surveillance Devices Act 1999 (Vic) did not preclude Toll from installing and using the camera system. Additionally, the FWC did not consider that any provision within the EA prevented Toll from installing the camera systems. As such, the FWC determined that there was nothing to prevent Toll from installing both the outward-facing and driver-facing cameras into its heavy vehicle fleet in Victoria.
The FWC additionally found that based on the evidence before it, the cameras did appear to contribute to a safer working environment in the road transport industry but noted that installation should only occur after drivers have been provided with training about the operation of the system and the guidelines that apply to the use of the system.
Can employers rely on recordings of employees in disciplinary proceedings?
The Federal Court of Australia in Chappell v Griffin Coal Mining Company Pty Ltd  FCA 1248 dealt with this very issue and prevented the employer from relying on a video recording of the employee to take disciplinary action against him.
Mr Chappell, who had been an employee of Griffin Coal Mining Company Pty Ltd (the Company) for some 28 years, was recorded making inappropriate, violent and racially abusive comments about the Company to another person. The recording was captured via a body camera on a site security guard who had been standing approximately two metres from Mr Chappell when the comments were made.
The Company considered that the language used by Mr Chappell constituted a breach of its Code of Ethics and Conduct and Disciplinary Conduct Action Policy, the Mines Safety and Inspection Act 1994 (WA) and the Racial Discrimination Act 1975 (Cth).
Mr Chappell sought to restraint the Company from using the recording in disciplinary proceedings against him on the basis that it was a breach of the Surveillance Devices Act 1998 (WA) as the recording was of a private conversation and he was not aware that he was being recorded. Pursuant to the Surveillance Devices Act 1998 (WA), it is an offence to record or listen to a private conversation or activity unless you have the consent of the parties. However, a conversation is not private if parties should reasonably expect that their conversation may be overheard.
Ultimately, the Federal Court determined that there was an arguable case that the security guard was included in the conversation, meaning that it was a private conversation not capable of being overheard and protected by the Surveillance Devices Act 1998 (WA). However, the Federal Court was not required to form a final view in this regard and erred on the side of caution by restraining the Company from relying on the footage in taking disciplinary action against Mr Chappell and/or terminating his employment. The Federal Court did specifically note that the Company could however rely on any statements made by the security guard in any disciplinary proceedings.
How this impacts employers?
Whilst the decision in the Chappell case is interlocutory, in the age of CCTV and smart phones it is a reminder for employers to remain alive to the relevant surveillance laws when looking to rely on audio or video recordings.
Employers ought to oversee and monitor their use of recording devices, keeping in mind that the legality of the recording device does not automatically result in recordings being lawfully obtained. When the employee is not aware that they are being recorded and the conduct has occurred in a private conversation/activity, it is unlikely that this can be relied upon in any disciplinary process.
It is important to note that the Chappell case examined the WA surveillance legislation. The Victorian surveillance legislation places a similar prohibition on a person knowingly installing, using or maintaining a recording device to overhear, record, monitor or listen to a private conversation, without the consent of each party to the conversation.
The installation of, and reliance on footage captured by, recording devices is a complex area for employers. Whilst the recent decisions of the FWC and the Federal Court provide some guidance for employers, each matter will depend on the individual facts and circumstances. It is therefore recommended that employers obtain legal advice before installing, and/or seeking to rely on footage captured by, recording devices.
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. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.