Workplace surveillance and monitoring employees involve systematically observing or tracking employees’ activities, behaviours, and communications within a workplace. This is a complex issue in Australia, and there’s a pressing need for clarity on the legality and ethical aspects.
In this article, we look at workplace surveillance to provide clarity to employees and employers about the legality of workplace surveillance in Australia.
What is workplace surveillance?
Workplace surveillance refers to the various methods employers use to monitor the activities and behaviour of employees during work hours.
Moreover, instances where the initial intention of the employer wasn’t specifically to keep tabs on their staff also come under even if the initial intention wasn’t specifically to keep tabs on their staff. For instance, a shop installs surveillance technology primarily for the security of its customers. However, this same system inadvertently ends up monitoring the employees as well. That’s a classic example of workplace surveillance in action.
The methods employed for this surveillance can vary significantly based on the nature of the work and the tools available. Here are some common ways in which this surveillance is conducted:
- Accessing Emails: Employers might review and access employees’ email accounts or specific emails to ensure compliance with company policies.
- Accessing Files and Computers: Employers might go through employees’ files or access their work computers to monitor work-related activities.
- Recording Calls: All inbound and outbound calls made and received by employees might be recorded for training and quality control purposes.
- Monitoring Internet Usage: Tracking employees’ online activities, including the websites visited, files downloaded, and even inputting data online, is another surveillance method.
- CCTV Cameras: The use of closed-circuit television cameras to monitor and record activities in the workplace, common areas, or specific work zones.
- GPS Tracking: This involves using GPS systems to track the movements of company vehicles or even employees’ personal devices during work hours.
Is it legal to monitor employees?
Yes, it is generally legal for employers in Australia to monitor employees. But they need to comply with Federal, State, and Territory laws of Australia. So, while monitoring isn’t inherently illegal, there are important guidelines to follow.
Monitoring employees and privacy law
Privacy Act 1988 sets broad principles for data collection and handling. But it doesn’t explicitly address workplace surveillance. However, its emphasis on transparency, purpose limitation, and data security applies to any personal information collected, including that of employees.
When implementing monitoring measures, employers must be transparent with their workforce. Informing employees about the types of monitoring used, its purposes, and data handling processes is essential.
The Privacy Act demands a valid business reason for monitoring. For instance, tracking emails for policy adherence is justifiable, while monitoring private conversations isn’t. The purpose must be clear, specific, and directly linked to the monitoring practice.
Additionally, ensuring robust security measures, such as encryption, access controls, and secure data storage, is vital. These measures safeguard the collected information, preventing unauthorized access or misuse of employee data in compliance with the Privacy Act.
Monitoring employees and workplace surveillance law
Workplace surveillance laws vary across Australia. Each state or territory often has its own legislation governing surveillance in the workplace.
Both regions have specific workplace surveillance legislation, the Workplace Privacy Act 2011 (ACT) and the Workplace Surveillance Act 2005 (NSW) respectively. Both laws have similar general requirements:
- Give notice for 14 days unless the employee agrees to a different notice period (as per the employment agreement);
- Provide a workplace surveillance policy;
- For video surveillance, cameras must be visible, and there must be signs notifying people they are under camera surveillance;
- For tracking devices, there must be a notice or visible warning that puts the employee on notice that they are under tracking surveillance.
Unlike NSW and ACT, with their comprehensive workplace surveillance laws, Victoria, Western Australia, South Australia, and the Northern Territory lack specific regulations in this area. Instead, there is general legislation relating to workplace surveillance in these regions.
The lack of specific workplace surveillance laws creates uncertainty for employers, making it difficult to know what practices are acceptable and compliant. These states may subject workplace surveillance practices to greater scrutiny under general privacy laws, leading to potential legal challenges. Moreover, obtaining informed consent from employees for certain surveillance types, especially optical and listening devices, may be challenging.
Broadly, these states and territories do not permit optical or listening devices unless it is consented to or unless another exemption applies. For example, it is reasonably necessary to protect any person’s lawful interests, and the occupier of the premises agrees to the installation.
Additionally, the Victorian legislation specifically prohibits where surveillance can occur, e.g., not in private areas such as toilets, changing rooms, etc.
The Invasion of Privacy Act 1971 (Qld) states that a participant to a private conversation can legally record the conversation in Queensland without any knowledge, notification or consent of the other party or parties to the conversation.
How can employers legally carry out surveillance in the workplace?
Employers should notify employees about workplace surveillance
The employer’s duties under the law to monitor the workplace can be difficult. This is all the more true as the laws are different in each state or territory. However, it is crucial to understand them, as they can affect an employer’s liability in an unfair dismissal claim or other proceedings.
In some states (e.g. NSW and ACT), specific notice requirements apply to workplace surveillance. However, we recommend that employers should give notification to seek consent regardless of which state or territory the employer or employees are located in. Even in states with no such requirements, providing notice is always good practice and can help demonstrate transparency and fairness.
Employers may provide a general policy to notify employees and obtain implied consent regarding workplace surveillance. The policy should inform employees about what activities are being tracked, when does the surveillance commences, for how long and for what purpose, and any other relevant information. The policy may apply on a national basis.
Otherwise, employers can include an explicit clause on workplace surveillance in their employment contracts.
The wording of the clause may be as follows:
“You acknowledge and agree that from the commencement of your employment, as a condition of using the Employer’s communication and information technology systems, the Employer may carry out continuous, ongoing monitoring, recording and surveillance of all communications carried or received on, and all use of, the information technology systems and electronic resources of the Employer in the course of your employment with the Employer and when using resources of the Employer outside work.“
Acceptable IT use policy
An Acceptable Use Policy outlines how employees should use a company’s IT systems, including their access to confidential data. This policy ensures employees understand the company’s expectations for the proper use of workplace technology and the surveillance of employees and their communications. It’s also known as an IT policy.
This policy typically covers:
- Monitoring electronic communications such as work messaging apps and emails;
- Defining what data and information must remain confidential;
- Guidelines for using the company’s networks;
- Specifying acceptable behaviour when using company systems;
- Identifying unacceptable behaviour or actions;
- Rules for using personal devices to access workplace systems;
- Plans for handling breaches or violations of these guidelines.
- Notice is crucial: Regardless of the state or territory, you should inform your employees about workplace surveillance. Even in states where there are no specific regulations, such notice demonstrates transparency and fairness.
- Establish clear policies: Draft a general policy that informs employees about the type of monitoring, its duration, purpose and other relevant details.
- Use explicit clauses: Consider including an explicit workplace surveillance clause in the employment contract. This clause should clearly articulate the nature and scope of monitoring employees should expect.
- Be aware of surveillance: Understand that workplace surveillance may occur. Employers have the right to monitor certain activities within legal limits.
- Know your privacy rights: Even in the event of surveillance, employees have a right to privacy. Expect your employer to be transparent about what activities are being monitored and why.
- Use technology wisely: Be careful when using company-provided technology for personal use. The employer may monitor and track the use of these devices within legal limits.
Frequently Asked Questions
In Australia, it is generally legal to record conversations at work if all parties involved have given their consent. This applies to both audio and video recordings. However, there are exceptions:
- Private conversations: Recording a private conversation without consent is strictly prohibited and can have serious legal consequences under relevant laws.
- Confidential information: Recording confidential information without authorisation is a breach of trust and may be considered misconduct.
- Unreasonable intrusion: Recording someone’s conversation in a place where they have a reasonable expectation of privacy (e.g. bathroom, locker room) is not allowed.
Yes, it is legal to use CCTV in the workplace. But it must be done on fair and reasonable grounds. You must follow these rules:
- Inform employees: Employees must be informed about the use of CCTV, including the purpose, location of the cameras and data storage practices.
- Minimise intrusion: Cameras should only be used in areas where it is necessary for security reasons. They should not be used to monitor the activities of employees in areas where they have a reasonable expectation of privacy.
- Data security: CCTV footage must be stored securely and only accessed by authorised personnel.
Yes, your employer can monitor the use of your work computer, but they must follow certain limitations:
- Transparency: They must inform you of their surveillance practises, including what types of activities are monitored and how the data is used.
- Proportionality: Monitoring must be proportionate to the legitimate purpose and not overly intrusive.
- Data security: Your employer must take reasonable steps to protect your data from unauthorised access and misuse.