Workplace Surveillance (NSW)

Workplace surveillance is widespread in New South Wales, with employers utilising various technological media to monitor and track workplaces and the behaviour of their employees. In NSW, the Workplace Surveillance Act 2005 governs how businesses can operate and use surveillance equipment and recordings.

Workplace Surveillance NSW

A company may deploy workplace surveillance for a variety of legitimate reasons such as to protect company assets, detect theft or fraudulent behaviour, and monitor employee behaviour and safety. A major reason for a company to implement surveillance is to ensure that they have an incontrovertible record of any workplace accident or incident. This is essential if a company wants any protection from vicarious liability over the conduct of an employee, as a recording may establish that the employee was engaging in willful misconduct or acting outside his or her employment scope.

Types Of Workplace Surveillance In NSW

Businesses have long used surveillance devices such as CCTV to monitor workplaces, but with technological advances, new opportunities have opened up to monitor employees in a more covert fashion. The transport and construction industries, in particular, have started tracking the location of their vehicles, and some companies even have employees wear body cameras when they are on site to monitor activity that traditional CCTV cannot cover. Businesses now monitor workplaces using:

• Audio and visual recording equipment;
• Spyware that monitors computer and internet usage; and
• Devices (including dashboard cameras) that track company vehicles or the physical location of an employee.

Despite the plethora of options, every company should consider whether such surveillance is an operational requirement, and if it is absolutely necessary to record audio in order to achieve their aims. Companies that use audio surveillance are likely to record sensitive information during conversations between employees. Sensitive information is subject to more stringent requirements under the Privacy Act 1988  (Cth) than other forms of information.

Permitted Workplace Surveillance

The purpose of the Workplace Surveillance Act is to regulate the use of photographic and video recordings, audio, computer monitoring and location tracking. This legislation regulates both overt and covert methods of workplace surveillance to protect employee privacy.

When a workforce is notified that there is surveillance in place in a workplace, this is known as overt surveillance. In NSW, a company may only use overt surveillance if it is visible to the employees (ie. not hidden). They must post a sign explaining the monitoring and the employees must be informed at least 14 days before the implementation of the surveillance, and new employees must be notified before starting at work.

The notice must explain:

• The type of surveillance (for instance, whether it includes audio or tracking);
• The date and time that the surveillance will start;
• Whether the surveillance is continuous or intermittent; and
• Whether it is for a certain period of time or an ongoing practice.

There are also specific regulations that pertain to computer surveillance in workplaces in NSW. Surveillance of employee computers can only occur when there is an existing policy in place, and the company provides notice in advance and ensures that the employees understand the policy. NSW legislation explicitly prohibits a company from blocking emails from or to an employee unless it is in line with the workplace computer policy, or the email is spam, contains a virus, or may reasonably be defined as harassing, menacing or offensive.

Any company that is subject to the federal Privacy Act 1988 also has to act in compliance with the Australian Privacy Principles (APPs) when using overt workplace surveillance. With limited exceptions, this includes all government agencies and any organisation that has an annual turnover of $3 million or more.

Prohibited Workplace Surveillance NSW

Covert workplace surveillance is surveillance that takes place without the awareness of employees, and is strictly prohibited in NSW. The sole exception is for an employer who has covert surveillance authority. Only a magistrate can issue this authority for the purposes of monitoring unlawful activity in a workplace. The court will decide whether there are reasonable grounds to justify surveillance based on the seriousness of the alleged crime and whether this will violate the other employees’ right to privacy.

There are also specific areas of a workplace that cannot be monitored, including toilets, changing rooms and shower facilities. It is essential that any permitted surveillance does not even accidentally record an area where an employee has an expectation of and right to privacy.

Use Of Covert Surveillance Recordings

There has been debate over whether recordings that were made in contravention of the law can be used by a tribunal or court. In the 2019 Fair Work Commission case of Krav Maga Defence Institute Pty Ltd t/a KMDI v Saar Markovitch, the Bench examined the admissibility of evidence obtained through illegal workplace surveillance to defend the termination of an employee in an unfair dismissal case. The Commission found that it was not bound by the strict rules of evidence and could inform itself using whatever evidence it deemed appropriate, including recordings made contrary to law.

A company should obtain legal advice before proceeding with any type of workplace surveillance in NSW to ensure that it does not represent a contravention of state or federal privacy law. If you need advice on this or any other legal matter, please contact the Armstrong Legal team on 1300 038 223.