Surveillance in the Workplace
Published on: Jun 30 2017
Are there cameras at your workplace?
Do you understand your legal rights at work when it comes to surveillance?
Here are some useful facts:
The Workplace Surveillance Act 2005 (NSW) is a NSW law only, with no other states regulating surveillance specifically within a work context.
Employers are using more and more surveillance at work to protect against theft and crime. Cameras have been used for many years in retail workplaces however with the advances in technology ‘surveillance’ may also include the use of other devices such as:
- global positioning systems (GPS) for transport tracking
- listening devices
- computers – for example, to monitor employee’s access to inappropriate emails or websites
- 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.
What is overt surveillance?
(basically you are aware of it)
Overt surveillance happens when employers surveil employees, and the employees are notified of this action. Under the Workplace Surveillance Act 2005, overt surveillance is unlawful unless a minimum of 14 days’ notice has been given in advance.
New employees must be notified before they start work.
The notice must contain details of:
- What kind of surveillance is going to be used (video, audio, tracking);
- When the surveillance will commence;
- Whether the surveillance will be intermittent or continuous; and
- Whether the surveillance will be for a specific time or ongoing.
All surveillance is required to be placed in clearly visible places with signs indicating surveillance is taking place.
Aside from the above regulations, the Act specifically prohibits surveillance in certain areas. These include change rooms, toilets, showers or bathing facilities at a workplace.
What is covert surveillance?
(basically you don’t know about it)
Covert surveillance refers to surveillance that is undertaken without the knowledge of the employee(s). The Act strictly prohibits covert surveillance unless the employer obtains a ‘covert surveillance authority’ which has been issued by a Magistrate authorising the surveillance to determine whether the employee(s) are involved in unlawful activity at work.
When issuing a covert surveillance authority, the Magistrate will consider the following:
- The seriousness of the unlawful activity;
- Whether it will affect the right to privacy of other employees in the area; and
- Whether reasonable grounds exist to justify the surveillance authority.
Computer, Internet and Email Surveillance
The Act restricts computer surveillance by employers including monitoring or recording of information accessed and sent. It also regulates the surveillance of internet access by employees and prohibits the blocking of emails.
Under the Act, surveillance of an employee’s computer use can only be carried out where:
- There is an existing policy on computer surveillance in the workplace; and
- Notice has been given to the employee in advance; and
- The employee is aware of and understands the policy.
What can you do as an employee if you feel that the law is being breached?
Members often express concern that surveillance in their workplace is not used legitimately to protect people from harm and property from theft or damage. Too often the Union must intervene when employers discipline workers for work performance they have observed using surveillance. In the Union’s view, this is an abuse of the original purpose of the law. It is a lazy substitute for managing, guiding and coaching workers on the job. If your employer is failing to train, support, coach and/or mentor you on the job and uses workplace surveillance to discipline you for allegedly poor job performance, give us a call.
If you believe that video surveillance is being misused in your workplace then talk to your Union Delegate or contact the SDA office on (02) 4961 4694 if you are unsure about your rights.