Surveillance of Employees in the Workplace – What’s Legal and What’s Not?

Posted on Feb 15, 2017 by Rebecca McKenzie   |   Categories: Litigation & Dispute Resolution

In the digital age, the ease of recording someone or some act or thing has never been easier.

In the workplace setting, many employers monitor and record the actions of employees, to check for any breaches of company policy and procedure, to ensure that appropriate standards of behaviour are being met and that company property, like vehicles and equipment, confidential information and intellectual property is not being damaged.

Employers are well within their legal rights to monitor employees, albeit with some strict limitations.

In New South Wales, the Workplace Surveillance Act 2005 (NSW) along with the Surveillance Devices Act 2007 (NSW) provides a legal mechanism for employers to monitor and record their employees.  Balanced against this however, are the rights of the employees and the freedoms associated with private conversations and expressions.  Significant penalties apply, in terms of fines of up to $55,000 per breach and imprisonment, if employers breach the legislation.

Surveillance in the workplace can consist of several mediums, including computer surveillance, camera surveillance, tracking surveillance (such as GPS on a vehicle) and listening devices.  There is a difference between monitoring and recording someone or something overtly, either with their permission or at least after notice has been provided in accordance with the legislation and monitoring them covertly, in secret.  Where an employer suspects that one or more of its employees are engaged in unlawful activity, it may apply to a Court for the authority to engage in covert surveillance.  Otherwise, prior notice to the employee must be provided as detailed further below.

Computer surveillance is generally the most prevalent type of monitoring, by means of software or other equipment that monitors or records the information input or output of a computer, including the sending and receipt of emails and the accessing of Internet websites.  A written notice or warning must be provided to the employees, and in terms of computer surveillance this notice must be given at least fourteen days prior to the commencement.  The written notice must be in a certain form and provide details as to the type and duration of surveillance.

Similar written notice provisions apply for camera surveillance and cameras must be placed in clearly visible areas within the workplace.  Privacy restrictions apply, in that an employer must not carry out any surveillance of an employee of the employer in any change room, toilet facility or shower or other bathing facility at a workplace.  In relation to GPS tracking on vehicles, strict notice requirements must also be met, including a clearly visible notice in the vehicle, disclosing the GPS tracking.

In relation to listening devices, this area can be difficult to implement within the bounds of the law, given the strict prohibition on the recording of private conversations, although exceptions do apply within certain industries.  A recent case concerning two Sydney council parking officers has brought this issue to the fore, with one employee sacked and the other tendering a resignation when one of their body cameras recorded a private conversation, disparaging and belittling a superior.

All employers considering the use of workplace surveillance should seek legal advice prior to doing so and they must implement policy and procedures that provide for notification and compliance with legislative requirements.