SURVEILLANCE IN THE WORKPLACE: WHAT YOU SHOULD KNOW

A guide to legislation relating to employee electronic surveillance and monitoring

Surveillance and monitoring devices

• When most people think of surveillance, they think of video or still cameras, or phone tapping.

• However, technological advances have seen the introduction of a broad range of surveillance options available to employers today, including:

Surveillance and monitoring devices

• Global positioning systems (GPS devices): Used primarily in the transport industry to determine location of deliveries and ensure compliance with government traffic regulations.

Surveillance and monitoring devices

• Listening devices:

• Radio transmitters that interact with radio receivers to feed audio surveillance from one location to one or multiple locations.

Surveillance and monitoring devices

• Telephones: Commonly used in call centres to monitor new employees for training and induction purposes.

Surveillance and monitoring devices

• Computers: Can

• be used to monitor employees’ access to inappropriate emails or websites.

Surveillance and monitoring devices

• Biometrics: Technology that recognises people based on fingerprints, iris pattern, DNA, handwriting, etc. – commonly used in monitoring time and attendance of employees, as well as for security purposes.

Surveillance and monitoring legislation

• There is no across-the-board legislation that applies across Australia.

• Applicable legislation is:

o device-specific

o state or territory-based

o applies more broadly than the

workplace

Device-specific, non-work-specific legislation

• Listening Devices Act 1972 [SA], Surveillance Devices Act 2007 [WA], Surveillance Devices Act 2007 [NT], Invasion of Privacy Act 1971 [QLD] and Listening Devices Act 1991 [Tas] – All generally prohibit the use of listening devices to listen to or record private conversations to which the user is not a party without the consent of all parties

Workplace-specific legislation – NSW/ACT

• NSW (Workplace Surveillance

Act 2005) and the ACT

(Workplace Privacy Act 2011)

regulate overt and covert

camera, computer and

tracking surveillance.

• Both Acts require employers

to provide employees 14

days’ notice (unless

otherwise agreed) of an

intention to conduct

surveillance.

Notice of surveillance – NSW/ACT

• The notice must detail: o Kind of surveillance to be

conducted o How it will be conducted o When it will be conducted o Whether it will be continuous

or intermittent o Whether it will be ongoing or

conducted for a specific time

• Under both Acts, covert surveillance can be undertaken subject to an order by a magistrate where unlawful conduct is reasonably suspected.

Victoria – not just workplaces

• The Workplace Surveillance Devices Act [Vic] applies more broadly than workplaces.

• It applies to listening, tracking and optical surveillance devices.

• Employee consent is required to conduct optical and tracking surveillance.

Computer surveillance

• Employers have the right to

monitor company-supplied

computers, mobile phones,

etc. if done in accordance with

relevant policy/ procedures.

• Email and Internet comms

privacy is only protected in

NSW and ACT.

• Both Acts restrict employers

from blocking employees’

emails and Internet access

at work – particularly if it

relates to industrial matters.

Interception and listening devices

• The Telecommunications (Interception and Access) Act 1979 [Cth] prohibits listening to or recording communications passing over a telecomms system without the consent or knowledge of the parties.

• Listening and surveillance devices legislation in each state generally prohibits the use of listening devices to listen or record private conversations to which the user is not a party without the consent of all parties.

Penalties

• Contravening surveillance or privacy laws can result in serious penalties.

• E.g., contravention of the Victorian listening devices legislation can result in up to two years’ in prison or substantial fines.

In summary…

• There is no national legislation covering electronic surveillance or monitoring of employees

• Legislation is usually device-specific.

• Employers can generally monitor company-supplied devices.

• Using listening devices without consent is generally prohibited.