Do the eyes have it? Everything you need to know about workplace surveillance laws

Surveillance can include anything from overt cameras set up at workspaces, and vehicle device tracking to software monitoring. With more and more employees working from home post the pandemic, recent studies have shown that employers are more than ever investing in computer software to monitor their employees who are working remotely.

Each State and Territory has implemented device-specific legislation regulating how and the extent to which employers can monitor their employees. Much of the legislation is complex and frequently revised to keep pace with ever-changing technology. Despite the complicated nature of the legislation, difficulty understanding the laws and regulations isn’t a reasonable excuse in the eyes of the Fair Work Commission (FWC). If an employer gets it wrong, they can expect large penalties. So, monitor with extreme caution!

Surveillance may be used for a variety of reasons, including improving workplace safety, detecting fraud and theft, and recording cases of workplace injury. The best way to introduce workplace surveillance into your business is to implement a workplace policy. A workplace surveillance policy will allow you to set out clear guidelines to help you and your employees remain compliant with relevant legislation.

In this article, we explain what workplace surveillance is, the different types of surveillance that can be used, and the laws surrounding its use in each Australian State and Territory. Let’s get into it…

What are the types of workplace surveillance?

The need for workplace surveillance has increased over recent years due to the rapid introduction of new technologies, and the shift to a remote working model following the COVID-19 outbreak. The following are the main types of surveillance used by businesses to monitor their employees:

• Video surveillance.
• Computer and email surveillance.
• Telephone surveillance.
• Geolocation tracking.
• Data security.

It’s also important to note that any surveillance devices used by an employer must not be used to conduct surveillance of an employer outside of the workplace, or outside the course of an employee performing their role from a remote location.

Workplace surveillance by State and Territory

New South Wales and the Australian Capital Territory

In both NSW and the ACT, surveillance of an employee must not commence until employees have been notified. Under the  NSW Workplace Surveillance Act 2005 and the ACT Workplace Privacy Act 2011, notice must be provided in writing and at least 14 days before surveillance commences. This notice must include: The surveillance type(s), how the surveillance will be carried out, the date the surveillance will commence, and whether the surveillance will be continuous or intermittent.

In addition, in both NSW and the ACT, camera surveillance may only be carried out if the cameras are clearly visible, and there are clear signs notifying people that they may be under surveillance in that area. In relation to computer surveillance, in NSW and the ACT, this is only permitted if the business has a workplace surveillance policy in place which outlines the computer surveillance being conduct.

Victoria, Western Australia, South Australia, and the Northern Territory

While Victoria, Western Australia, South Australia, and the Northern Territory do not have specific workplace surveillance laws in place, surveillance, in general, is governed by its respective Surveillance Devices Act. Employers should adhere to the requirements under this legislation when engaging in surveillance in the workplace.

That is, employers are required to obtain employees’ consent before engaging in any type of surveillance including visual or audio surveillance.

Employee consent can be obtained via the implementation of a company surveillance policy. If an employee reads and acknowledges the policy (for example by returning a signed copy of the policy), the company can rely on this as the employee having consented to the surveillance as outlined in the policy. Employers will then be able to commence workplace surveillance without breaching the legislation.

Queensland, and Tasmania

There’s no specific legislation regulating the use of visual surveillance in Queensland or Tasmania, however, Queensland is currently considering implementing specific workplace surveillance laws in the near future.

Fines for the improper use of surveillance devices in all states are substantial, meaning compliance with state laws is essential. As the laws governing workplace surveillance are long and complex, it’s extremely important to implement a company policy that is tailored to your state or territory, to avoid any breaches.

Create policies with ease using Citation HR Software.

Inside Citation HR software is everything your business needs to manage your people. From a range of legally compliant workplace policies, templates, and resources to electronic policy acknowledgment from your employees and employee record management, you’ll be able to streamline your HR and ensure your admin tasks are taken care of. Contact us today to see how we can help with your workplace compliance.