In the modern era of advanced technology, the issue of employee surveillance and privacy in the workplace has become increasingly relevant. Workplace surveillance can take various forms, including video surveillance, computer monitoring, telephone monitoring, email monitoring, and GPS tracking. Even monitoring the use of a work credit card can be a form of surveillance. There are certainly legitimate reasons for employers to monitor their employees using these means, such as ensuring productivity, preventing theft, ensuring work health and safety or maintaining cybersecurity. However, in Australia, employee surveillance is subject to legal regulation, and employees have certain rights regarding privacy and monitoring in the workplace. This article will provide an overview of the legal framework concerning workplace surveillance.

Legal Framework

The legal framework governing workplace surveillance in Australia is complex, comprising a mixture of federal and state or territory legislation which is not necessarily consistent. Generally, state and territory laws cover the installation and use of CCTV, and some states also have specific workplace surveillance legislation, while federal law provides broader privacy protections. In the ACT, the relevant legislation is the Workplace Privacy Act 2011.

Under the federal Privacy Act 1988, and the related Australian Privacy Principles (APPs), employees across Australia have a right to privacy in relation to their personal information, even while performing their job duties. Under this legislation, employers should respect the privacy of their employees and ensure that any surveillance measures are reasonable, proportionate, and necessary for the legitimate business needs of the employer. Excessive or intrusive surveillance that goes beyond what is necessary may infringe on employees’ privacy rights.

It is important for employers to know that data that they collect through surveillance of employees is considered personal information. This includes the image of individuals collected through CCTV recording. Employers must take reasonable steps to protect this personal information from misuse, interference and loss, as well as unauthorised access, modification or disclosure. When an employer no longer needs to hold the personal information for the purpose for which it was collected, it must take reasonable steps to destroy the information or ensure that it is de-identified.

Employees who believe their privacy rights have been violated by surveillance undertaken by their employer have the right to lodge a complaint with the relevant authority, such as the Office of the Australian Information Commissioner (OAIC) or the Fair Work Commission.

Employee Consent to Surveillance

In most states and in the ACT, it is necessary for employees to be notified about surveillance in their workplace. This can be achieved through clear policies, employment contracts, or workplace agreements. For some forms of surveillance, the employer must not only inform the employee, but also seek consent. When consent is required, it must be freely given, informed, and voluntary.

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 accidentally record an area where an employee has a higher expectation of and right to privacy.

Covert Surveillance

Covert workplace surveillance is surveillance that takes place without the awareness of employees, and it is strictly prohibited in many jurisdictions across Australia. Even where covert surveillance is prohibited, however, there are exceptions for an employer who has sought authority through the courts. In New South Wales, for instance, a magistrate can issue an authority for the purposes of monitoring unlawful activity in a workplace.

Case Study

Krav Maga Defence Institute Pty Ltd t/a KMDI v Saar Markovitch was a case that considered the use of covert surveillance in the workplace. In New South Wales, the Workplace Surveillance Act 2005 (WS Act) requires that an employee be given at least 14 days’ notice prior to workplace surveillance commencing and, in the case of camera surveillance, there must be signs notifying employees that they may be under surveillance clearly visible in each entrance. In this case, however, surveillance cameras were installed at a gym with no prior notification and no signage.

An employee at the gym was observed acting in a way that his employee considered a reasonable basis for termination. The dismissed employee made an unfair dismissal application to the Fair Work Commission claiming that his dismissal was predicated on information gathered through unlawful surveillance.

When the case was first heard, the CCTV footage was excluded because it was recorded in breach of the requirement under the WS Act for employees to be given proper notice of the surveillance. On appeal, the Full Bench of the Fair Work Commission held that, even if the employer’s CCTV footage had been illegally or improperly obtained, the Commissioner had erred in automatically excluding such evidence. The Full Bench stated that the proper approach to be applied in considering whether or not illegally or improperly obtained surveillance should be admitted as evidence requires the consideration of the factors in the Evidence Act 1995 (NSW), including the probative value of the surveillance and its importance to the case.

This case illustrates that, although employers in NSW are required to give notice of surveillance, employees should be aware that their conduct can still endanger their employment if it is captured by undeclared covert surveillance.

This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on (02) 5127 5261 or email [email protected].