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.
Key takeaways
For employers
- 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.
For employees
- 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.
What is workplace surveillance?
Workplace surveillance refers to the various methods employers use to monitor the activities and behaviour of employees during work hours.
Instances where the initial intention of the employer wasn’t specifically to keep tabs on their staff also come under workplace surveillance – even if the initial intention wasn’t specifically to keep tabs on their staff.
For example, 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.
Privacy Laws
The Privacy Act 1988 (Cth) (Privacy Act) 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.
Workplace Surveillance Laws
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:
- 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.
- 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.
