Workplace Surveillance (NSW)

Can your employer record you at work? Everything you need to know about workplace surveillance in NSW

In today’s modern world, there’s surveillance everywhere. In shops, on street corners, and even in the door cameras on private homes. Workplace surveillance is also widespread. And because of that it’s become a hot topic for employees across Australia, particularly in New South Wales, with employers utilising various technological media to monitor and track workplaces and the behaviour of their employees. 

Whether you’re concerned about your privacy rights, are simply curious about what an employer can legally monitor or are an employer looking to understand the best way to monitor your employees without violating their rights, this article can help.

Let’s break down what employers can and can’t do when it comes to monitoring their workforce. 

What is workplace surveillance and why do employers use it?

Workplace surveillance refers to the monitoring of employees through technology, from traditional CCTV cameras to computer monitoring software. 

Most employers use surveillance for legitimate business reasons, such as:

• Protecting company property and assets
• Preventing theft and fraud
• Ensuring workplace safety
• Creating evidence for workplace incidents or accidents
• Reducing liability risks

Another major reason for a company to implement surveillance is to make sure they have clear footage of any workplace accident or incident. This can be crucial for legal protection, especially if an employee’s actions fall outside their job duties or involve misconduct.

Common types of workplace surveillance 

Businesses have used surveillance tools like CCTV in workplaces for years. But as technology has evolved, so have the ways employers can monitor staff, including in more discreet ways such as  vehicles tracking or body cameras worn onsite to monitor activity that traditional CCTV can’t cover. 

Workplace monitoring can also include:

• Audio and visual recording – security cameras, body cameras, dashboard cameras
• Computer monitoring – tracking internet usage, emails and software activity
• Location tracking – GPS in company vehicles, employee location monitoring via other location devices

What laws apply?

So what laws apply when it comes to workplace surveillance. 

Workplace Surveillance Act

In NSW, the Workplace Surveillance Act 2005 (the Act) governs how businesses can operate and use surveillance equipment and recordings.

The Act regulates camera (visual), audio, computer and tracking surveillance usage that’s carried out by employers to watch their employees whether in the workplace itself, when tracking vehicles or while onsite. It aims to balance the employers’ interests which are security, safety and performance, with the employees’ privacy rights. 

The Act sets out what is permitted workplace surveillance – both overt (or known) and covert (or hidden). 

Overt surveillance

In general, the Act permits ‘overt’ surveillance – monitoring that employees know about. To be permitted under the Act, however, there are certain requirements:

• Surveillance equipment must be visible to the employees (I.e., no hidden cameras)
• There  must be clear signage explaining the monitoring
• Current employees must generally be given at least 14 days advance notice before the implementation of any surveillance (there are a few exceptions)
• New employees must be notified of the surveillance before starting work

When providing notice to you, your employer 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
• Its duration (for instance, for a certain period of time or as an ongoing practice)

Covert surveillance 

Covert workplace surveillance is surveillance that takes place without the awareness of employees. And most importantly, it’s illegal in NSW and strictly forbidden – with one major exception. That exception is when a magistrate grants special authority to use hidden surveillance to investigate criminal activity in a workplace. 

Courts will decide whether there are reasonable grounds to justify surveillance and will make this decision by carefully balancing the seriousness of the alleged crime against employees’ privacy rights.

Off-limit surveillance

There are also specific areas of a workplace that can’t be monitored under any circumstances, whether overt or covert. These off-limits areas include toilets and bathrooms, changing rooms, shower facilities and any other area where employees have a reasonable expectation of privacy.

The Act also restricts surveillance of employees when they’re not ‘at work’. In general, they must not use work surveillance devices to monitor you when you’re off duty or away from the workplace – for example, tracking a work vehicle while you’re using it privately, or monitoring a work laptop when you’re using it at home for personal reasons.

Special rules about computer monitoring

There are also specific rules around computer surveillance in NSW workplaces. Employers can only monitor employee computers if there’s already a workplace policy in place, staff have been given notice beforehand and employees clearly understand the policy.

NSW laws also generally prevent employers from accessing emails sent from or to an employee unless it’s permitted under the workplace computer policy, or the email could reasonably be considered spam, contain a virus, or include harassing, threatening or offensive content.

The Privacy Act

Though the main governing law for workplace surveillance in NSW is the Act, any company that is subject to the federal Privacy Act 1988 (the Privacy Act) also has to act in compliance with the Australian Privacy Principles (APPs) when using workplace surveillance. This means they have to follow the APPs when they collect, use and store any personal information about you gathered through surveillance activities. 

With limited exceptions, this includes all government agencies and any organisation that has an annual turnover of $3 million or more.

Organisations that fall under the Privacy Act are only permitted to collect information that’s reasonably necessary for their work, they must tell you when information is being collected and why, they have to keep it accurate and secure and they have to destroy or de-identify it when it’s no longer needed. 

It’s worth noting that many small businesses who fall under the $3 million threshold might not be subject to the Privacy Act. However, other obligations set out under workplace laws still apply. 

Special rules about audio recordings

When deciding when to undertake any kind or surveillance, every company should consider whether such surveillance is an operational requirement, and if it’s absolutely necessary to record audio to meet their needs. 

Companies that use audio surveillance could capture health information, details about a person’s background or belief or even union membership – all of which are treated as ‘sensitive information’ under the Privacy Act. 

In most cases, an employer covered by the Privacy Act must only collect this kind of information with the employee’s consent, limit it to what’s reasonably necessary for their work and keep it secured so that it’s not accessed, used or shared inappropriately. 

Use of illegally recorded evidence

Interestingly, even if surveillance violates the law, the recordings might still be used in legal proceedings. A 2019 Fair Work Commission case established that employment tribunals aren’t bound by strict rules of evidence and may consider illegally obtained recordings when making decisions.

It’s important to note that even if the tribunal can look at the footage, the employer may still face penalties or other consequences for breaching the Act.

Know your rights and get proper advice!

Workplace surveillance laws can be complicated, particularly when technology is constantly changing. What’s allowed in one situation may not be lawful in another.

If you’re an employer considering surveillance, or an employee with concerns about workplace monitoring, get in touch with the Armstrong Legal team today. We can help you understand your rights and responsibilities when it comes to workplace surveillance in NSW.