Is Workplace Surveillance Legal?

Workplace Surveillance is becoming increasingly easier for employers, due to advancements in modern technology. However, while there is no ‘right to privacy’ in Australia, most States and Territories have implemented device-specific legislation regulating how and the extent to which employers can monitor their employees.

Much of the legislation is complex and frequently revised in order to keep pace with technology. Yet unfortunately, difficulty understanding the laws and regulations is not a reasonable excuse in the eyes of the Fair Work Commission (FWC). And you can expect large penalties for getting this wrong. So spy with caution!

The best way to introduce workplace surveillance into your business is to implement a new company policy. A workplace surveillance policy will allow you to set out clear guidelines to help you and your employees remain compliant with relevant legislation.

What are types of workplace surveillance?

The need for workplace surveillance has increased over recent years due to the rapid introduction of new technologies and systems worldwide. The following are the main types of surveillance used in the workplace:

  • video surveillance;
  • computer and email surveillance;
  • telephone surveillance;
  • geolocation tracking; and
  • data security.

Workplace Surveillance in New South Wales and the Australian Capital Territory

In both New South Wales and the Australian Capital Territory, surveillance of an employee must not commence until employees have been notified. Under the Workplace Surveillance Act for NSW and ACT, notice must be provided in writing and at least 14 days prior to the surveillance commencing. This notice must include: The surveillance type(s), how the surveillance will be carried out, the date the surveillance will commence and whether the surveillance will be continuous or intermittent.

In NSW, surveillance cameras must be clearly visible with clear signs notifying people that they may be under surveillance in that area.

It is essential that you implement an effective Workplace Surveillance Policy in order to comply with legislation, especially when it concerns computer surveillance.

Workplace Surveillance in Victoria, Western Australia and the Northern Territory

Under the Workplace Surveillance Act for VIC, WA and NT, each employee must consent in order to perform optical surveillance in the workplace.

In Victoria, employers are prohibited from using any device to observe, listen to, record or monitor the activities, conversations or movement in toilets, change rooms, lactation rooms or washrooms (including shower and bathing facilities).

Workplace Surveillance in Queensland, South Australia and Tasmania

There is no specific legislation regulating optical surveillance in Queensland, South Australia or Tasmania. Though generally using a listening device to record, monitor or listen to a private conversation without consent is an offence.

As the laws governing workplace surveillance are long and complex, it is extremely important to implement a company policy that is tailored to your particular state or location, in order to avoid any breaches.

For more information on the recommendations and what this means for you, clients should contact the HR Assured team or head to the HRA Cloud to download your own Workplace Surveillance Policy. If you would like more information about the benefits of becoming an HR Assured client contact us today for an informal chat.