As technology develops, surveillance and productivity monitoring are becoming more common in Australian workplaces. With the phenomenon of remote work, many employers are placing their employees under surveillance within their own homes. This begs the question – when is surveillance in the workplace lawful?
There is no general right to privacy in Australia. Nevertheless, employers should be cautious to ensure that monitoring technology does not infringe on their employee’s rights to privacy in the workplace. These rights may be found in various of state, territory, and federal laws.
Under The Workplace Surveillance Act 2005 (NSW), surveillance in the workplace is generally lawful where employees have been adequately notified. Often, surveillance clauses will form part of a worker’s employment contract and serve as notice of surveillance practices.
Monitoring of employee use of email, internet, and other computer resources, where the employees have been notified, is generally allowed.
More public forms of communications – such as slack, or other team chat software is generally routinely available to employers without any need to notify.
Importantly, the implementation of any new monitoring technology must be communicated to staff, such that the employee understands and is aware of the surveillance. Under the NSW legislation, employers may monitor and record their employees where the employee has been informed in writing with adequate notice (usually 14 days) of when and where the monitoring will commence, as well as how it will be carried out. Surveillance would likely be unlawful without adequate notice and communication, and a formal policy documenting its purpose and use.
In extreme circumstances where employers can establish grounds that an employee is undertaking unlawful activity in the workplace, employers can covertly monitor employees once they have obtained a “covert surveillance authority” from the court. Absent a ‘covert surveillance authority’ granted by a Magistrate, surveillance undertaken without the knowledge of the employee is unlawful.
Remote work has provided workers more autonomy and independence with the way they work. Some employers have implemented tools for remote employee monitoring and surveillance to ensure that employees are meeting the employer’s expectations and the requirements of their role.
This trend blurs the lines between the workplace and employees’ personal lives.
Under the NSW legislation, employees generally should not be subject to surveillance when outside the workplace. That said, checking that employees are active on online apps such as teams or slack may seem relatively innocuous. More intrusive forms of monitoring, such as live webcam feeds and keystroke recording, is likely to be unreasonable and infringe on the employees right to privacy.
Returning to Work
As workers leave their home offices and return to the workplace, some employers have also implemented greater monitoring under the guise of ‘COVID safety’. While using a QR code to check-in to the workplace is a reasonable ask, some workplaces are amassing large volumes of data by tracking workers movement patterns to enforce social distancing.
Indeed, The Workplace Surveillance Act (NSW) regulates tracking and GPS surveillance, too. Under the legislation, if an employer wishes to track an employee’s geographical location, there must be a clearly visible sign on the vehicle or thing indicating that the vehicle or thing is the subject of tracking surveillance.
Employers should also consider that surveillance threatens the trust between employers and employees. and is likely to impact attrition and recruitment. Additionally, employers have a duty for of care for the health and safety of their employees, and excessive or covert surveillance may have impacts employee’s mental health.
Segelov Taylor Lawyers Can Help
Workers who are concerned about surveillance and safety in the office or working from home should contact their trade union or a lawyer.
We can provide guidance, advice, and representation on flexible working arrangements.
Segelov Taylor principal, David Taylor, is an accredited specialist in employment law. If you have concerns about safety in the workplace, please get in touch by email firstname.lastname@example.org or by phone (02) 8880 0500.