Surveillance and monitoring devices are becoming increasingly popular in and around the workplace, but what is the law in regards to recording employees at work. Apart from having a digital receipt of what goes on in the workplace, there are several good reasons why employers invest in surveillance systems. However, there is legislation in place which limits the ability to monitor workers and, perhaps more importantly, to rely on surveillance in circumstances where an employee is suspected of some unlawful or improper conduct.
The use of surveillance in the workplace is regulated by legislation, in NSW for example the Workplace Surveillance Act 2005 (NSW) (“Surveillance Act”) applies to the making of covert video footage of employees within the workplace (such as hidden cameras). In order to use technologies including cameras, listening devices, global positioning systems, telephone recorders and the like, employers must comply with strict disclosure and notice obligations prescribed by the Surveillance Act. Similar legislative provisions can also be found in Victoria, Western Australia, South Australia, Tasmania and the Northern Territory.
Before coming to the issue of overt surveillance and the requirements that must be met, it is worth noting that covert surveillance of employees at work is generally prohibited unless a covert surveillance authority (such as a Magistrate) has issued an order permitting this kind of surveillance to occur. Even in circumstances where an employer wishes to use surveillance in the workplace, bear in mind that certain facilities within the workplace such as bathrooms and washrooms are deemed to be out-of-bounds by the legislation.
Provided therefore that the mode of surveillance is not covert and is not used in restricted areas, it is lawful for an employer to install surveillance systems in the workplace where the following steps have been taken:
- The surveillance must not commence without prior notice in writing to the employee;
- Written notice must be given at least 14 days before the surveillance commences (unless an employee agrees to a lesser period of notice);
- The notice must indicate details of:
– The kind of surveillance to be carried out, for example, camera recording;
– How the surveillance will be carried out;
– When the surveillance will start;
– Whether the surveillance will be intermittent or continuous; and
– Whether the surveillance will be for a specified period or ongoing.
Email notification is generally considered acceptable under the Surveillance Act for the purposes of an employer complying with the above notice requirements. In addition to these obligations, overt camera surveillance of employees is not permitted to be carried out in NSW unless:
- The camera used for the surveillance is clearly visible in the place where the surveillance is taking place; and
- Signs notifying people that they may be under surveillance in that place are clearly visible at the entrance to that place.
Where an employer fails to take the appropriate steps before introducing surveillance in the workplace, they may be subject to fines and other penalties. Directors and others involved in the management of the company may receive convictions for breaches. In addition, an employer will potentially not be able to rely on damning evidence during unfair dismissal proceedings or be able to tender as evidence misuse of their intellectual property or confidential information in an injunction case.
One of the most protective and effective ways therefore to ensure compliance is for employers to develop carefully worded policies and procedures relating to workplace surveillance. In next week’s client alert, we will focus on employer obligations regarding the recording of conversations via listening devices.
If you have any employment law issue, or wish to discuss the process for introducing workplace surveillance at your workplace, please do not hesitate to contact us for specialist advice or assistance.