Many employers have a limited understanding of their legal obligations in relation to surveillance of employees in the workplace. This means many employers may be at risk of breaching surveillance and privacy legislation when employers review employees’ emails and/or internet site usage. Innovative advances in workplace surveillance technologies, coupled with the falling costs and increasing accessibility of surveillance devices and software, are contributing to this problem.

Whilst there are strong arguments for conducting workplace surveillance, employers in New South Wales and the ACT must be careful to ensure that they comply with legislative requirements concerning workplace surveillance and privacy. The four main arguments in defence employers conducting workplace surveillance are these:

1. Employers must be able to protect themselves from security risks created by employment such as theft of confidential information and intellectual property by employees, and surveillance assists in mitigating these risks.
   
   
2. Workplace surveillance is an effective means of reducing the organisation’s exposure to risks of vicarious liability for employee misconduct. For example in the case of Williams v Centrelink AITC, Centrelink may have been held vicariously liable for the sexual harassment of a female employee had their surveillance records not revealed which other employee had been sending her pornographic images via email.
   
   
3. Where workplace surveillance is used for the purposes of quality control and performance evaluation, it is an effective mechanism for increasing productivity.
   
   
4. Workplace surveillance can be a useful cost-cutting tool to the extent that it helps to eliminate the unnecessary expense of employees downloading irrelevant Internet material from work computers, calling friends on work telephones or even stealing merchandise.

Workplace Surveillance Act: NSW

Despite the clear security, liability, productivity and efficiency benefits of workplace surveillance, employers must be careful to meet the notice requirements in the relevant statute. In New South Wales, workplace surveillance is governed by the Workplace Surveillance Act 2005 (‘the Surveillance Act’), which requires that employers provide employees with at least fourteen days written notice before commencing any workplace surveillance operations, unless the employees to be subject to the surveillance agree to a shorter notice period. The Surveillance Act stipulates that the notice to employees must specifically state whether the surveillance to be carried out will be camera, computer or tracking surveillance; how the surveillance will be carried out; when the surveillance will commence; whether the surveillance is to be continuous or intermittent; and finally, whether the surveillance will be conducted only for a limited period, or ongoing.

The Surveillance Act also provides that where employers seek to engage in camera surveillance, the cameras must be clearly visible, and signs must be placed at each entrance notifying employees that they may be under surveillance. Tracking surveillance must not be carried out unless there is a clearly visible warning on the vehicle indicating that the location of the vehicle is being monitored. Finally, if computer surveillance is to be conducted, this must comply with a workplace computer surveillance policy, of which employees have been given advance notice.

Workplace Privacy Act: ACT

Similar legislation was recently introduced in the ACT with the passing of the Workplace Privacy Act 2011 (‘the Privacy Act’), in April of this year. In addition to the notice requirements contained in the Surveillance Act, the Privacy Act imposes new obligations on employers. Specifically, ACT employers must nominate in the notice the employees who will regularly or ordinarily be the subject of the surveillance and the purpose for which the employer may use and disclose records of the surveillance. It is an offence under the Privacy Act for an employer to use records obtained from workplace surveillance to commence adverse action against an employee, unless the notice of the surveillance provided to the relevant employee specifically states that this will be permitted.

The difficulty faced by employers under each of these Acts is that both could be described as ‘tied’ to particular technologies. Therefore rapid technological advancements create uncertainty as to whether such technologies are necessarily captured by the legislation. Reforms are currently being considered which would make the relevant legislation across all Australian jurisdictions more “technology-neutral”, to eliminate this uncertainty as new surveillance software and devices are developed.

To ensure your business has met its legal obligations in relation to workplace surveillance and privacy, please contact Nick Stevens at Stevens and Associates.

Author: Nick Stevens, Principal, Stevens & Associates Lawyers, an AIIA.biz expert and one of the Panel of Expert Bloggers.

This article provides general information only. It is not legal advice, and is not a substitute for legal advice. Specific advice should be sought to take into account your particular circumstances. Stevens & Associates Lawyers is a boutique industrial relations and employment law firm. It has liability limited by a scheme approved by the Professional Standards Legislation.