SURVEILLANCE IN THE WORKPLACE: WHAT YOU SHOULD KNOW A guide to legislation relating to employee electronic surveillance and monitoring

Surveillance and monitoring devices When most people think of surveillance, they think of video or still cameras, or phone tapping. However, technological advances have seen the introduction of a broad range of surveillance options available to employers today, including:

Surveillance and monitoring devices Global positioning systems (GPS devices): Used primarily in the transport industry to determine location of deliveries and ensure compliance with government traffic regulations.

Surveillance and monitoring devices Listening devices: Radio transmitters that interact with radio receivers to feed audio surveillance from one location to one or multiple locations.

Surveillance and monitoring devices Telephones: Commonly used in call centres to monitor new employees for training and induction purposes.

Surveillance and monitoring devices Computers: Can be used to monitor employees’ access to inappropriate emails or websites.

Surveillance and monitoring devices Biometrics: Technology that recognises people based on fingerprints, iris pattern, DNA, handwriting, etc. – commonly used in monitoring time and attendance of employees, as well as for security purposes.

Surveillance and monitoring legislation There is no across-the-board legislation that applies across Australia. Applicable legislation is: device-specific state or territory-based applies more broadly than the workplace

Device-specific, non-work-specific legislation Listening Devices Act 1972 [SA], Surveillance Devices Act 2007 [WA], Surveillance Devices Act 2007 [NT], Invasion of Privacy Act 1971 [QLD] and Listening Devices Act 1991 [Tas] – All generally prohibit the use of listening devices to listen to or record private conversations to which the user is not a party without the consent of all parties

Workplace-specific legislation – NSW/ACT NSW (Workplace Surveillance Act 2005) and the ACT (Workplace Privacy Act 2011) regulate overt and covert camera, computer and tracking surveillance. Both Acts require employers to provide employees 14 days’ notice (unless otherwise agreed) of an intention to conduct surveillance.

Notice of surveillance – NSW/ACT The notice must detail: Kind of surveillance to be conducted How it will be conducted When it will be conducted Whether it will be continuous or intermittent Whether it will be ongoing or conducted for a specific time Under both Acts, covert surveillance can be undertaken subject to an order by a magistrate where unlawful conduct is reasonably suspected.

Victoria – not just workplaces The Workplace Surveillance Devices Act [Vic] applies more broadly than workplaces. It applies to listening, tracking and optical surveillance devices. Employee consent is required to conduct optical and tracking surveillance.

Computer surveillance Employers have the right to monitor company-supplied computers, mobile phones, etc. if done in accordance with relevant policy/ procedures. Email and Internet comms privacy is only protected in NSW and ACT. Both Acts restrict employers from blocking employees’ emails and Internet access at work – particularly if it relates to industrial matters.

Interception and listening devices The Telecommunications (Interception and Access) Act 1979 [Cth] prohibits listening to or recording communications passing over a telecomms system without the consent or knowledge of the parties. Listening and surveillance devices legislation in each state generally prohibits the use of listening devices to listen or record private conversations to which the user is not a party without the consent of all parties.

Penalties Contravening surveillance or privacy laws can result in serious penalties. E.g., contravention of the Victorian listening devices legislation can result in up to two years’ in prison or substantial fines.

In summary… There is no national legislation covering electronic surveillance or monitoring of employees Legislation is usually device-specific. Employers can generally monitor company-supplied devices. Using listening devices without consent is generally prohibited.