INSIGHTS: Is Big Brother watching?

February 21, 2017

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A common concern for many employers is the extent to which they can monitor employees in the workplace. Specific legislation regulating workplace surveillance exists in New South Wales and the Australian Capital Territory and in other states workplace surveillance is regulated by legislation dealing with specific electronic surveillance devices or methods. The overall implication for employers however, is that the legality of and requirements for an employer undertaking employee workplace surveillance depends on the state where the business is located.

Differences in state-based workplace surveillance regulation

New South Wales

The Workplace Surveillance Act 2005 (NSW) regulates the employer’s use of electronic devices such as video cameras, computers and tracking devices to monitor employees. This legislation contains a general prohibition on employee surveillance, by the employer, except where employees have been given prior written notice not less than 14 days before the surveillance commences, or in the case of new employees, before the employee commences work. This notice must specify the type of surveillance being undertaken, how it will be carried out, when the surveillance will occur and whether it is ongoing or for a limited period. An employer may also undertake surveillance if they have obtained a covert surveillance authority.

Depending on the type of workplace surveillance, there may be additional obligations on the employer to put up notices or have a policy in place concerning the manner in which surveillance is undertaken.

Australian Capital Territory

In the ACT, the Workplace Privacy Act 2011 (ACT) regulates workplace surveillance by use of optical devices, tracking devices and data surveillance devices; however there are no provisions in this legislation relating to the use of listening devices. An employer in  the ACT will be required to give notice to employees if these devices are in use in the workplace and to consult with employees before the introduction of surveillance. There is a prohibition in the ACT on the surveillance of employees in some areas in the  workplace including toilets, change rooms, nursing rooms, first-aid rooms and prayer rooms.

Similar to New South Wales, an employer may apply to obtain a covert surveillance authority to conduct surveillance without providing notice to employees. The Courts  will only grant such an authority for the purpose of determining whether an employee is carrying out an unlawful activity.

Victoria

Surveillance in Victoria is regulated by the Surveillance Devices (Workplace Privacy) Act 2006 (Vic). In accordance with this legislation an employer is restricted from the use of listening devices, optical surveillance devices and tracking devices for the surveillance of workers in particular areas in the workplace such as toilets, washrooms, change rooms, or lactation rooms. There are however exceptions to these restrictions, such as where a warrant or other authorisation has been granted to allow surveillance. In Victoria, an employer may not  publish or disseminate material obtained through surveillance.

QLD, SA, WA, Tasmania & NT

In Queensland, South Australia, Western Australia, Tasmania and the Northern Territory, there is no legislation dealing exclusively  with surveillance in the workplace. In each state and territory however, there is likely to be surveillance legislation that can apply more broadly than the workplace and may regulate the usage of specific surveillance devices or forms of surveillance. For example, surveillance in these states may be regulated by the following:

  • Invasion of Privacy Act 1971 (Qld)
  • Listening Devices Act 1972 (SA)
  • Surveillance Devices Act 1998 (WA)
  • Listening Devices Act 1991 (Tas)
  • Surveillance Devices Act 2007 (NT)

In each instance it is likely that regulations on specific forms of surveillance extend to the workplace.

Conclusion

If your workplace wishes to undertake surveillance, it is important that this is done in accordance with the relevant legislation in your state.  You may also wish to have a workplace surveillance policy available to your employees, setting out the types of surveillance undertaken and the rights and obligations of both the employer and employee when it comes to surveillance.

For more information, please contact Sharlene Wellard. This article was published in Commercial insights, February 2017.