Employee Surveillance: what can you do?
In New South Wales, workplace surveillance is regulated by the Workplace Surveillance Act 2005 (NSW) as well as the Surveillance Devices Act 2007 (NSW). These acts govern the monitoring of employees in relation to cameras, GPS tracking, listening devices and computers.
Monitoring employees can be very useful in helping to protect a company’s confidential information as well as its intellectual property. However, there are limits on the methods employers can use to survey workplace activities of their employees. Breaching the legislation could result in an employer facing potential fines and even imprisonment in a worst case scenario.
The Workplace Surveillance Act 2005 (NSW) provides for various forms of surveillance including computer surveillance. Computer surveillance is one of the most regularly used methods of monitoring employees. It can be used to review numerous activities including tracking internet sites visited, the accessing of employer software, software which has been downloaded, emails and files saved to external storage devices.
A written warning must be given to employees where an employer wishes to carry out surveillance of workplace computers. This notice must be given at least fourteen days prior to the commencement of the surveillance. If surveillance of employees is already being carried out, then new employees must be given notice prior to commencing work that they too will be under surveillance. This notice is usually given to new employees by setting it out in their contract of employment.
Written notice must state the kind of surveillance that is to be carried out and:
- How the surveillance is to occur;
- When the surveillance will start;
- Whether the surveillance is to be continuous or only from time to time; and
- Whether the surveillance will be for a particular period or whether it will be ongoing.
While notice must be given, there is no need to obtain consent from the employees. Computer surveillance is also not limited to desktop computers, and it can extend to the monitoring of smart phones and other electronic devices.
Listening devices are not commonly installed within workplaces because of the strict prohibition on the recording of private conversations. An exception exists where an employee’s phone calls are recorded in industries such as telemarketing to ensure legal compliance and quality control. In these situations the customer and the employee must be informed that the call could be monitored.
The Surveillance Devices Act 2007 (NSW) does not allow an employer to install, use or cause to use or maintain a listening device to overhear, record, monitor or listen to a private conversation. The private nature of many conversations that take place in the workplace means that the legality of installing a listening device in the workplace is fraught with risk.
There are significant penalties for breaching the Surveillance Devices Act 2007. They include fines of up to $11,000 per breach for an individual as well as up to 5 years imprisonment and fines up to $55,000 per breach for a corporation.
In addition to computer surveillance, the Workplace Surveillance Act 2005 (NSW) also provides for camera surveillance of employees. The use of camera surveillance is common in many workplaces, particularly in the retail and hospitality sectors. Camera surveillance is useful when reviewing customer service levels, and it helps to monitor the start and finish times of employees. Camera surveillance can also assist in protecting an employer’s property. The misconduct of employees is generally reduced when employees are made aware that a camera is recording their actions.
The notice requirements for carrying out camera surveillance is the same as is required for computer surveillance. Camera surveillance is prohibited from being carried out in change rooms, toilet facilities and bathrooms. In addition, cameras and or camera casings must be clearly visible within the workplace environment. Notices must be used to inform employees that camera surveillance is taking place.
GPS tracking devices are often installed by companies for security reasons, as well as for employee safety reasons. Tracking devices are frequently used in the trucking industry, so that the goods that the truck is carrying can be monitored and employee safety and break times can be observed.
Employers are able to track vehicles that employees utilise for work under the Workplace Surveillance Act. The written notice requirements outlined above for computer surveillance must also be observed when seeking to use GPS tracking devices. Furthermore, employers must put a clearly visible notice in the vehicle which explains that the vehicle is installed with GPS tracking.
So what and who cares?
Workplace surveillance is important for workplace safety and the protection of company property, but the law provides limits to its use. Employees and their directors who are in breach of the Workplace Surveillance Act 2005 (NSW) can be fined up to $55,000 per breach. If you want to protect your business value, get the most out of your employees and avoid fines and penalties, call Leigh at Leigh Adams Business Lawyers on 02 9964 0022 or email firstname.lastname@example.org. He and his team can assist you.