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But Who’s Watching? Get the Vital Facts on Surveillance in the Workplace

Employment Law, General

Whether you run a small business or a large corporate office, you may be considering using surveillance in the workplace. But what exactly are the legalities of monitoring your staff and what are your rights as an employer?

Privacy is a contentious issue right now, especially as our digital data is being used and sold for all sorts of purposes. Consumers, workers and the general public alike are becoming increasingly aware of their rights so it’s more important than ever to make sure you are compliant with all the relevant laws when it comes to your staff’s privacy.

Why use workplace surveillance?

Workplace surveillance can be used for a variety of reasons. Most employers consider surveillance in the workplace in order to protect their property, monitor their employees’ performance, ensure their employees’ health and safety or all of the above.

Is workplace surveillance legal?

In Australia, there is no general right to privacy. Instead, it is regulated by several state, territory and federal laws. This can make the issue of workplace monitoring complicated and often unclear.

In NSW, the issue is regulated by the Workplace Surveillance Act 2005. The Act defines surveillance under two separate types: overt and covert.

Overt Surveillance

Overt surveillance refers to when persons are aware that they are under surveillance. According to the Act, overt surveillance is legal if:

  • employees are notified at least 14 days before surveillance starts
  • new employees are notified before commencing work
  • all surveillance is placed in clearly visible places
  • there are clear signs indicating that surveillance is taking place

Any notice of overt surveillance must inform staff of:

–   What kind of surveillance will be used (video, audio or tracking)

  • When the surveillance will commence
  • Whether the surveillance will be intermittent or continuous
  • Whether the surveillance will be ongoing for a specific time period only

Covert Surveillance

Covert surveillance refers to surveillance undertaken without the knowledge of the employees. Generally speaking, covert surveillance is strictly prohibited under the Act unless the employer has obtained a ‘covert surveillance authority’ issued by a Magistrate authority.

A covert surveillance authority can be issued if the purpose of the surveillance is to ascertain whether the employees under surveillance are involved in unlawful activity at work.

What types of workplace surveillance are there?

Video Surveillance

As already mentioned, the use of cameras to monitor the workplace is allowed providing that the cameras are clearly visible with clear signs notifying people that they may be under surveillance in that area.

Tracking & GPS Surveillance

According to The Workplace Surveillance Act, tracking employees with the use of electronic devices which monitor their geographical location such as GPS is only allowed if a clearly visible notice is displayed on the vehicle.

Computer, Internet and Email Surveillance

Under the Act, surveillance of an employee’s computer may be carried out but only if:

  • The workplace has an existing policy on computer surveillance
  • Advance notice has been given to the employees
  • The employees are aware of and understand the policy
  • E-mails sent to or by employees can be blocked but only if this is in accordance with the workplace’s computer policy, the content is spam, contains a virus or can reasonably be regarded as harassing, menacing or offensive.

What is a breach of privacy?

The Act states that surveillance in certain areas such as changing rooms, toilets, showers or bathing facilities are strictly prohibited. There are also several other stipulations across video, audio, location, computer and location tracking that you need to be aware of.

If you are not compliant with the specific regulations stated in the Workplace Surveillance Act 2005, then you are in breach of privacy and your employees are within their right to act. Employees can alert the Fair Work Commission who will audit and investigate your company and should they uncover a breach, you could receive a large penalty.

How can you set up workplace surveillance as an employer?

As an employer, you are within your right to set up workplace surveillance. To make sure you are respecting your employees’ legal right to privacy, make sure you read and adhere to the Workplace Surveillance Act 2005. You should also take a look at the Fair Work Commission checklist for workplace privacy to ensure you are compliant.

Before installing any surveillance equipment or sending notices to your employees, it is best to consult with qualified legal experts. This will help make sure that the notices you give your employees are compliant with the Act and don’t leave you vulnerable to legal action and hefty penalties.