Surveillance in the workplace

23 July 2019

With the ever increasing responsibility on companies and their directors and officers to ensure safety and security in the workplace, as well as to ensure compliance with the Heavy Vehicle National Law (HVNL), various forms of workplace surveillance are increasingly being used by employers in the transport and logistics industry.

Two years ago a technology firm in Sweden embedded microchips in its employees’ hands to simplify the process of entering buildings and logging onto computers. Whilst there are no signs of that occurring in Australia, other forms of surveillance are now commonplace including the use of swipe cards to enter a worksite, monitoring when employees log on or off their computer or when employees use a smartphone provided by their employer.

Further, the Fair Work Commission (FWC) Full Bench recently decided an unfair dismissal claim in relation to the use of biometric scanners in the workplace. Our article on this case is available here.

Examples of surveillance technologies that may be used in the workplace include, but are not limited to:

  • CCTV cameras
  • GPS tracking
  • monitoring computer us
  • devices which measure biometrics (eg fingerprinting)
  • monitoring mobile phone use
  • Cooperative Intelligent Transport Systems (C-ITS)

Use of surveillance in the workplace can have a variety of benefits for employers including:

  • safety and security of property and personnel
  • evidence that the employer has a safe system of work in place
  • potential evidence that members of the supply chain have complied with their Chain of Responsibility obligations under the HVNL
  • assisting in reducing adverse consequences of fatigue, particularly in relation to drivers of heavy vehicles
  • increasing efficiency and performance in the business and so reducing costs
  • employee performance management

The implementation of workplace surveillance can create tension between an employer and its workers, as striking the right balance between justified workplace surveillance and not unreasonably intruding into the privacy of individuals can be challenging.

With the development and use of new and more sophisticated surveillance technologies, heavy vehicle operators, packers and schedulers as well as other members of the supply chain should be aware of the laws governing the use of those devices.

The laws across the States and Territories governing the use of surveillance in the workplace differ and have not been updated with technological developments.

The most comprehensive laws are in New South Wales (NSW) and the Australian Capital Territory (ACT) which clearly aim to balance the need for security and safety in the workplace with an employee’s right to privacy.

In Victoria the regulation of workplace surveillance is embedded in the Surveillance Devices Act 1999 (Vic). The Act prohibits the use of surveillance devices in the workplace in:

  • toilets
  • washrooms
  • change rooms
  • lactation rooms

The specific incorporation of workplace surveillance into the Surveillance Devices Act 1999 (Vic) occurred by an amendment in 2006, shortly before the first generation iPhone was released. The use of surveillance devices in Victoria is otherwise covered by general privacy and surveillance laws.

South Australia, Tasmania, Western Australia, the Northern Territory and Queensland do not have specific workplace surveillance laws in place, with surveillance covered by general privacy and surveillance laws. However, Queensland is considering implementing specific workplace surveillance laws in the near future.

The general privacy and surveillance laws prohibit the use of surveillance devices (including listening, optical and tracking devices in Western Australia) and listening and optical devices (in Victoria and the Northern Territory) to record a private conversation without the permission or consent of the parties to the conversation. There are, of course, certain exceptions to these prohibitions.

The definition of private conversation varies across the State and Territory legislation. However, generally a conversation will not be private if the parties are aware or would reasonably expect that they may be overheard. This definition is reasonably broad and has implications for the use of surveillance records in situations such as performance reviews, disciplinary action taken against employees or actions taken to terminate employment.

Other restrictions on the use of surveillance devices in the workplace and surveillance records which employers should be aware of include conditions in enterprise agreements, employment contracts, workplace policies or subcontractor agreements which prohibit the use of those devices or those records. While surveillance devices may be useful tools, employers should ensure that any use of surveillance devices is not in breach of those agreements or policies.

All enterprise agreements have dispute resolution clauses that enable disputes to be arbitrated by the FWC. The implementation or expansion of workplace surveillance has regularly led to disputes between employers and employees that have been arbitrated. The FWC will generally accept that the use of workplace surveillance is justifiable if the relevant State or Territory laws have been complied with and it can be demonstrated to be for a legitimate basis such as compliance with work health and safety obligations.

NSW and the ACT have specific workplace legislation in place (the Workplace Surveillance Act 2005 (NSW) and the Workplace Privacy Act 2011 (ACT)) which limits the use of surveillance devices in the workplace by prohibiting an employer from carrying out or causing to be carried out any surveillance of an employee in a:

  • change room
  • toilet facility
  • shower or bathing facility

The ACT goes further to prohibit use of surveillance devices in parent or nursing rooms, prayer rooms, sick bays and first aid rooms at a workplace.

The NSW and ACT laws also require notice to be given to employees at least 14 days prior to surveillance commencing which includes details of:

  • the type of surveillance to be carried out
  • how the surveillance will be carried out
  • when the surveillance will commence
  • whether the surveillance will be continuous or intermittent
  • whether the surveillance will be for a specified limited period or ongoing

In the ACT it is also necessary to include in the notice who the regular or ordinary subject of the surveillance will be, the purpose for which the employer may use and disclose the surveillance and that the worker may consult with the employer about the conduct of the surveillance. NSW and the ACT also have specific provisions in place in relation to the need for notices on vehicles that are the subject of tracking, computer monitoring policies, notices identifying that cameras are operating in the workplace and the visibility of the cameras in the workplace.

Disclosure and use of surveillance records is specifically regulated in NSW and the ACT. To disclose surveillance records in NSW and the ACT one of the following conditions must be met:

  • there must be a legitimate purpose related to the employment of the employees or the business activities or functions of the employer
  • disclosure is to a member or officer of a law enforcement agency and is for use in connection with the detection, investigation or prosecution of an offence
  • use or disclosure is for a purpose directly or indirectly related to the taking of criminal or civil proceedings
  • use or disclosure is reasonably believed to be necessary to avert an imminent threat of serious violence to persons or substantial damage to property

The State and Territory workplace surveillance laws can be summarised as follows:

 

State Act Summary of Provisions
Victoria Surveillance Devices Act 1999 (Vic)
  • prohibits the use of surveillance devices in the workplace in:
    • toilets
    • washrooms
    • change rooms
    • lactation rooms
NSW Workplace Surveillance Act 2005 (NSW)
  • limits the use of surveillance devices in the workplace in a:
    • change room
    • toilet facility
    • shower or bathing facility
  • Notice must be given to employees of surveillance commencing
  • Disclosure of records regulated
  • Notices on vehicles, computers and areas where cameras operate required
ACT Workplace Privacy Act 2011 (ACT)
  • limits the use of surveillance devices in the workplace in a:
    • change room
    • toilet facility
    • shower or bathing facility
    • parent or nursing room
    • prayer room
    • sick bay
    • first aid room
  • Notice must be given to employees of surveillance commencing
  • Disclosure of records regulated
  • Notices on vehicles, computers and areas where cameras operate required
South Australia No specific workplace surveillance law Subject to laws on privacy and surveillance generally
Queensland No specific workplace surveillance law*
*New legislation is being considered
Subject to laws on privacy and surveillance generally
Northern Territory No specific workplace surveillance law Subject to laws on privacy and surveillance generally
Tasmania No specific workplace surveillance law Subject to laws on privacy and surveillance generally
Western Australia No specific workplace surveillance law Subject to laws on privacy and surveillance generally

The use of surveillance in the workplace has legitimate benefits to both businesses and employees and can be useful in assisting with compliance with both workplace laws and the HVNL. However, employers throughout the supply chain should be aware of the differing laws across the States and Territories in this area as well as any other agreed or contractual restrictions on the use of surveillance devices in the workplace which may be in place.

Employers should also be transparent about the introduction and use of surveillance.

If you would like advice or assistance with any of the above issues, please contact Andrew Hudson or Bethany Clark of our Transport & Logisitcs Industy Group.