Workplace Surveillance (Vic)
Employers may engage in workplace surveillance in Victoria for a variety of reasons, including to promote safety in the workplace, to increase the efficiency of business operations, or to create a record of events that may be required at a later date. Whatever the purpose, companies must abide by the regulations and rules outlined in the Surveillance Devices Act 1999. The key considerations in relation to this technology for employers are set out below.
Workplace Surveillance Victoria
Anyone in public has no expectation of privacy, and there is, therefore, no regulation to prohibit surveillance of public spaces. This is not the case for surveillance of private activities, which are generally protected. In Victoria, a company can only execute surveillance of private activity, even one that is occurring within a business setting and during working hours, with the express or implied consent of those who are being recorded.
Permitted Workplace Surveillance
A company can use surveillance to monitor the behaviour of their workforce, to detect fraud and theft, improve workplace safety and have a record in case of a workplace injury or other incident. Given that an employer can be held responsible for the actions of an employee in the course of their work, this is a sensible risk management strategy. A company’s defence against a vicarious liability claim, for instance, may rely on a recording that offers proof that the employee acted beyond their employment scope or with willful misconduct.
Employers can only use workplace surveillance in general office spaces but cannot monitor areas such as bathrooms, toilets, lactation rooms and change rooms. Breaching this prohibition can attract fines and even imprisonment. A Victorian hotel owner was fined in 2008 after installing a camera in a staff change room that included a toilet and shower. The hotel owner claimed that he was merely testing the device, but the Victorian Magistrate found that the employer had knowingly installed and used a surveillance device to record private activity without consent. The Victorian Supreme Court later upheld this decision on appeal.
Methods Of Workplace Surveillance In Victoria
There are different types of technology that a company can use to monitor their employees both inside and outside the workplace. The most familiar method of workplace surveillance is closed-circuit television cameras (CCTV). Companies predominantly use CCTV and audio/visual surveillance as a security precaution to deter workplace theft and monitor employee behaviour.
Other types of surveillance allow companies to monitor the workplace in new and less obvious ways. Some industries ask their employees to wear cameras fitted to their clothing to monitor behaviour that is not clearly seen on traditional CCTV. For instance, in response to the growing abuse and assaults in supermarkets during the COVID 19 pandemic, Woolworths implemented a trial in 2021 for supervisory staff to wear police-style body cams in states, including Victoria.
A lot of employers, particularly in the construction and transport industries, now track their company vehicles and install dashboard cameras so that they can monitor their employee’s whereabouts and behaviour away from the workplace. This allows companies to collect information on the movements of their employees, which not only helps protect the company from liability but also provides a record when compiling analytics on workflow.
If GPS tracking is employed, the affected employees must be informed of this fact and the details of the surveillance, including when it is operational and what type of information is collected and for what purpose. The employee also needs to be informed of the possible consequences if they make an objection to the surveillance.
Additionally, companies can install so-called “spyware” to monitor employees’ use of computers and the internet. For instance, a company may have a legitimate need to access their employee’s email to ensure that there is coverage during employee leave or for security reasons. In addition, it is appropriate for an employer to ensure that an employee’s use of the internet does not allow malware or viruses to threaten workplace networks or computer systems or that employees are not accessing content that is unsuitable for a workplace.
Employers must have a legitimate purpose for monitoring the workplace and ensure that the surveillance is proportionate to the objective. The company should also consider whether it is strictly necessary to implement surveillance, particularly if it includes an audio recording. In fact, under the federal Surveillance Devices Act, a workplace can only record audio with the consent of participants. In addition, audio surveillance has the potential to inadvertently record sensitive information that would be subject to tighter regulations contained in the Privacy Act 1988 (Cth). As such, an employer should think carefully before implementing any audio surveillance.
Employers that are planning to implement any type of workplace surveillance should seek legal advice to ensure that they are aware of their obligations under state and federal legislation. Please contact the team at Armstrong Legal on 1300 038 223 for assistance with this matter or any other aspect of privacy or employment law.