It is normal for employers to monitor their employees. However, the employer should also be clear about the level of privacy an employee can expect. An employer needs to remain moral in utilising surveillance techniques on their employees. Owen Hodge’s expert Sydney workplace lawyers can help clarify employers’ (and employees’) legal rights and obligations.

Workplace Privacy Act 2011

The main purpose of the Workplace Privacy Act 2011 (Act) is to regulate the collection and usage of workplace surveillance information. The Act regulates three kinds of workplace surveillance, namely:

  • Prohibited surveillance: The Act prohibits surveillance in places like toilets, parent rooms, and showers.
  • Notified surveillance: The Act requires an employer to give a prior written notice to the employees and surveillance should be conducted in accordance with the notice. The notice must be given at least 14 days prior to the commencement of the surveillance activity. The written notice must state the kind of surveillance device to be used, the manner in which it is to be conducted, who will be subject to surveillance, duration of the surveillance, whether the surveillance will be continuous or for a stipulated period only, and the purpose for which the employer may use and disclose surveillance records.
  • Covert surveillance: The Act permits an employer to conduct surveillance without the consent of employees to find out if any of employees are engaged in unlawful activities. Before conducting any covert surveillance, the employer needs to seek consent from a Magistrate authorising such surveillance and ensure the retention and use of any information gathered with strict control.

The employer can neither disclose the surveillance records to anyone except to a Court or a law enforcement agency. The employer cannot take adverse action(s) based on activities captured by the surveillance records, unless otherwise stated in the notification provided to the employees in this regard. An employer is liable to pay penalty in the event any provision of the Act is contravened.

Workplace Surveillance Act 2005 in New South Wales (NSW)

The Workplace Surveillance Act 2005 (WS Act) came into effect on 23 June 2005 with the primary aim to regulate video surveillance, tracking and computer surveillance including the monitoring or recording of emails and access to internet websites. The WS Act applies only to surveillances by camera and computer and tracking surveillance. It requires employers to comply with rules for both overt and covert surveillance. Overt surveillance refers to circumstances where employers monitor employees with their knowledge whereas surveillance without the employees’ knowledge refers to covert surveillance. The WS Act prohibits an employer from:

  • Conducting surveillance without prior notification to employees;
  • Blocking an employee’s internet and email access in workplace unless such prohibition conforms with the employer’s internet and email policy which has previously been communicated to the employee;
  • Using and disclosing the surveillance records unless required for any legitimate purpose of employment or by a law enforcement *Agency concerning an offence or for the taking of civil or criminal proceedings or for averting an impending threat of violence or *Damage to property;
  • Covert surveillance of employees for the purpose of establishing whether or not an employee is involved in any unlawful activity at work;
  • Surveillance of employees in change rooms, bathrooms or toilets; and
  • Using a work surveillance device on an employee while he or she is not at work.

For conducting a covert surveillance, an employer should obtain a covert surveillance authority from a Magistrate authorising the surveillance of an employee. The Magistrate shall grant the covert surveillance authority only when they are satisfied that there exists a reasonable ground justifying the issuance of such authority such. A reasonable ground can include monitoring any unlawful act of an employee. The Magistrate must also consider whether the covert surveillance might unduly intrude on employees or any other person’s privacy.

According to Section 43 of the WS Act, if a director of a corporation or a person concerned in the management of a corporation knowingly authorises or permits a contravention of the legislation, then that person is liable to be prosecuted in his or her capacity as an individual. The local Court has the jurisdiction to try cases of offence arising out of such contraventions.

For more information or legal advice please contact our specialist team of workplace lawyers in Sydney.

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