31 August 2016
Joydeep Hor, Founder and Managing Principal and Sam Cahill, Associate
Workplace surveillance can be an effective way of protecting company assets, monitoring employee performance, deterring and detecting misconduct, and protecting the safety of people in the workplace. It should therefore come as no surprise that many employers have been quick to adopt the latest surveillance technology, from cameras and computers to GPS tracking devices. At the same time, a number of Australian states and territories have laws that regulate the use of surveillance technology by employers in the workplace. This regulatory framework means that employers need to take proactive steps to ensure that any workplace surveillance is lawful and effective.
The reactive approach
Employers often experience problems with workplace surveillance laws because they only turn their attention to surveillance once something has gone wrong, or when it would be immediately useful to obtain surveillance data. The risks of this reactive approach to workplace surveillance are illustrated by the following fictional scenario:
We’re Watching: The Computer
Michelle is the Human Resources Manager at We’re Watching Pty Limited (“We’re Watching”), a company based in Sydney. One day Michelle receives a formal complaint from an employee named Julie. In the complaint, Julie says that when she arrived at work yesterday, she noticed that her colleague Steve, was not yet in his office, but his work computer was already on. On the computer monitor Julie could see the internet browser was displaying an offensive website.
Michelle begins her investigation into the incident by reviewing the internet history on Steve’s computer.
Computer surveillance is regulated in New South Wales and the Australian Capital Territory. In both of these jurisdictions, “computer surveillance” is defined to include any monitoring or recording of the accessing of internet websites.
In order to lawfully conduct computer surveillance in New South Wales, an employer is required to:
(a) have an internal policy on computer surveillance and ensure that employees are aware of this policy;
(b) only conduct surveillance in accordance with its policy; and
(c) before commencing surveillance, provide employees with 14 days’ written notice, including details of how and when the surveillance will be conducted and the purposes for which the employer may use or disclose records of the surveillance.
We’re Watching has a standard message on its log in screen which alerts the user that We’re Watching may monitor employees’ computer use, but does not have a computer surveillance policy.
We’re Watching: The Camera
The internet history on Steve’s computer shows that several offensive websites were accessed on the computer between 7.40 and 7.50am on the day in question. When Michelle raises the issue with Steve, he denies the allegation and claims that it could not have been him because on that day he did not arrive at work until 8.30am.
In order to determine when Steve arrives at work that day, Michelle reviews the footage from the surveillance camera location in the entrance to the office.
Camera surveillance is regulated in New South Wales, the Australian Capital Territory, Victoria, Western Australia and the Northern Territory.
In order to lawfully conduct camera surveillance in New South Wales, an employer is required to:
(a) ensure any cameras used for surveillance are clearly visible;
(b) ensure there are signs notifying people that they may be under surveillance; and
(c) before commencing camera surveillance, provide employees with 14 days’ written notice, including details of how and when the surveillance will be conducted and the purposes for which the employer may use or disclose records of the surveillance.
“employers need to take proactive steps to ensure that any workplace surveillance is lawful and effective.”
When the camera in the office entrance was installed, We’re Watching provided employees with written notice that it was going to conduct camera surveillance, but has not gotten around to installing any signs notifying people that they may be under surveillance.
We’re Watching – The Car
Michelle remembers that Steve drives to work in a company car, which was recently fitted with an anti-theft tracking device. Michelle reviews the data stored on this device to help determine when Steve arrived at work on the day of the incident.
Tracking surveillance is regulated in New South Wales, the Australian Capital Territory, Victoria, Western Australia and the Northern Territory. The use of a GPS tracking device to determine the location of a company vehicle would constitute tracking surveillance under the laws in each of these jurisdictions.
In order to lawfully conduct tracking surveillance in New South Wales, an employer is required to:
(a) ensure there is a notice clearly visible on the vehicle indicating that the vehicle is the subject of tracking surveillance; and
(b) before commencing tracking surveillance, provide employees with 14 days’ written notice, including details of how and when the surveillance will be conducted and the purposes for which the employer may use or disclose records of the surveillance.
In Victoria, Western Australia and the Northern Territory, employers are required to obtain the express or implied consent of the person who is being tracked or who is in control of the object being tracked.
We’re Watching did mention to Steve months ago that all company cars were being installed with anti-theft tracking devices, but there is nothing in writing and no sign to this effect on the car.
We’re Watching: The Dismissal
The footage from the surveillance camera and the data from the tracking device both show that Steve arrived at work at 7.30am on the day of the incident. On the basis of this evidence, Michelle decides to terminate Steve’s employment for accessing offensive material on his work computer and also lying during the investigation.
Fast forward two weeks and Steve has made an unfair dismissal claim in the Fair Work Commission. We’re Watching’s lawyers have reviewed the evidence to support the dismissal and have realised the bulk of this evidence was obtained in breach of the Workplace Surveillance Act 2005 (NSW). The lawyers now have the difficult task of explaining to Michelle that We’re Watching may be unable to rely on this evidence in the Commission.
The story of We’re Watching illustrates one of the main problems that can arise when an employer does not take a proactive approach to workplace surveillance – by the time the crucial situation arises, the opportunity to comply with any legal obligations has already passed.
We recommend that employers take a proactive approach to achieving compliance with any obligations under workplace surveillance laws. To determine what steps are required under this approach, managers and human resources practitioners should start by asking themselves the following questions.
What types of surveillance technology can we use?
The three main surveillance technologies are cameras, computer software and tracking devices. Computer surveillance software can be used to monitor or record any use of a computer by an employee. This includes the sending and receipt of emails and the accessing of internet websites. Tracking surveillance can be used to monitor or record the location or movement of a person, or an object such as a vehicle or other asset.
What steps do we need to take to achieve compliance?
Once an employer has decided on the types of surveillance it intends to use, it will need to determine what steps must be taken in order to comply with the workplace surveillance laws in the relevant state or territory. These requirements can vary significantly depending on the jurisdiction.
New South Wales and the Australian Capital Territory have the most comprehensive regulation. The law in these jurisdictions is principally based on “notification”. In order to lawfully conduct any of the defined types of surveillance (camera, computer and tracking), an employer must provide the employee with written notice and detailed information regarding the surveillance to be carried out. As discussed above, the employer must also comply with other specific requirements depending on the type of surveillance.
In relation to tracking surveillance, the law in Victoria, Western Australia and the Northern Territory might require more than mere notification, as these laws require employers to obtain the consent of the person who is being tracked or who is in control of the object being tracked.
What types of surveillance are prohibited?
With the exception of Queensland, South Australia and Tasmania, each state and territory has laws prohibiting the use of surveillance in areas such as toilets and washrooms, or prohibiting surveillance of “private activities”.
Generally, relevant surveillance legislation also prohibits tracking or computer surveillance of employees while they are not at work.
There are also laws in each state and territory regulating the use of listening devices. The general proposition under each of these laws is that employers and employees are forbidden from using a listening device to record a conversation without the consent of each of the participants in the conversation.
Can we take a “nationwide” approach?
Unlike other areas of workplace relations law, the regulation of workplace surveillance varies significantly between the different states and territories. This gives rise to an additional challenge for employers with operations in more than one jurisdiction. These employers may be interested in developing an approach to surveillance that can be applied throughout Australia.
While this may seem most efficient, employers should keep in mind that this approach would generally require the company to treat the most onerous state or territory regulations in respect of each type of surveillance as though they applied throughout the country, including in jurisdictions where there may be little or no regulation of workplace surveillance.
The following table sets out the types of workplace surveillance which are regulated across the various states and territories.
*The Surveillance Devices Act 2016 has not yet commenced. The commencement date is not yet known.