In New South Wales (NSW), the law allows employers to monitor their employees, both overtly and covertly. However, employers do not have an unlimited right to spy on their employees. With the rise of work from home, employers should also be aware of the legalities of surveillance when it comes to remote workers.
Types of Employee Surveillance
One of the most common types of workplace surveillance is visual monitoring such as through the use of CCTV cameras. These systems are used to prevent theft, monitor safety, or ensure that employees are adhering to company policies and procedures. Employers also often use electronic monitoring to track employee emails, instant messages, or internet usage. This type of monitoring is commonly used to monitor productivity, ensure that employees are not engaging in unlawful activity, or engaging in other behavior that could harm the company.
Some employers even use GPS tracking to monitor employee movements and location, either in company vehicles or on company provided devices. This type of monitoring can help employers to ensure that employees are not engaging in unauthorised activities, or to track employee progress on assigned tasks.
There are a number of relevant laws that employers in NSW must be familiar with before they implement surveillance of their employees, the most important of which is the Workplace Surveillance Act and the Privacy Act. These laws aim to balance the interests of employers and employees, and to protect employee privacy and dignity.
Workplace Surveillance Act 2005
The Workplace Surveillance Act 2005 (NSW) is the applicable law for employers who wish to conduct surveillance of their employees. It applies to visual monitoring, electronic surveillance, and all tracking of employee movements. Importantly, under the Act, employers are never permitted to install surveillance devices in change rooms or bathrooms, or to monitor employees when they are not “at work”.
Under the Act, surveillance is only permitted if it is reasonable and necessary. For instance, it may be considered reasonable and necessary for an employer to surveil their employees to ensure the safety and security of the workplace, to prevent unlawful activity, and to protect the employer’s property and interests.
The Act also requires employers to provide 14 days’ notice to employees before implementing any form of surveillance. There are special additional requirements for different types of surveillance. For camera surveillance, the device must be clearly visible and there must be signs at the entrance of the workplace notifying the use of camera surveillance. For computer surveillance, the Act requires that the employer must first have a circulated policy on how computer surveillance will be used in the workplace. For tracking surveillance, the Act requires that a notice be clearly visible on the “thing” being tracked, such as the vehicle.
Covert surveillance, where the employee does not receive notice prior to the monitoring, is only permitted in NSW with the authority of a magistrate. For instance, an employer may apply for authority to covertly surveil an employee who is suspected of unlawful activity.
Employers who do not comply with the Workplace Surveillance Act may face both civil and criminal penalties, and they may even be required to pay affected employees damages and compensation.
Privacy Act 1988
The Privacy Act 1988 (Cth) sets out the Australian Privacy Principles (APPs), which govern the collection, use, and disclosure of personal information by government agencies and private sector organisations, including employers. Under the APPs, employers must obtain employees’ consent before collecting their personal information, including through surveillance. Employers must also ensure that any surveillance is reasonable and necessary, and that the personal information collected is accurate, up-to-date, and securely stored.
Legal Considerations for Remote Work
As more employees are working from home or other remote locations, the legal considerations around employee surveillance become more complex. Broadly speaking, employers still have the right to monitor employees who are working remotely, as long as the surveillance is reasonable and necessary.
However, there are some additional legal considerations to keep in mind when monitoring remote employees. For example, employers must ensure that the surveillance does not infringe on the employee’s privacy or extend beyond the times when the employee is “at work”. This may require additional safeguards, such as limiting the types of monitoring. It is more likely, for instance, that electronic monitoring of computer use would be considered to be reasonable, as opposed to the use of camera surveillance in the employee’s home.
There have been several cases in NSW where employers have been found to have engaged in unlawful surveillance of their employees. For instance, in Kardamanidis v The Queen (2013) an employer installed a GPS tracking device on the employee’s work vehicle without the employee’s knowledge or consent. The employee was later charged with criminal offences, based in part on evidence obtained through the GPS tracking. The court found that the surveillance was unlawful and a breach of the employee’s privacy.
In FlexiGroup Ltd v Pedavoli (2018) an employer monitored their employee’s internet usage, including his personal email and social media accounts. The court found that the monitoring was unlawful and a breach of the employee’s privacy, as it was not necessary or proportionate to the legitimate interests of the employer.
Finally, in Australian Workers’ Union v NSW (2020), an employer used CCTV cameras to monitor their employees’ movements and activities during a strike. The court found that the surveillance was unlawful, as it was not necessary or proportionate to the legitimate interests of the employer and was aimed at intimidating and harassing the employees.
Employers may monitor their employees, however, do not have an unlimited right to spy on them. The case examples above demonstrate the importance of complying with the legal requirements for employee surveillance in NSW, including obtaining employee consent, ensuring that the surveillance is necessary and proportionate, and avoiding discriminatory practices.
This information is general in nature and does not constitute professional advice. If you or someone you know wants more information or needs help or advice, please contact us on (02) 6058 0000 or email [email protected].