The NSW Workplace Surveillance Act 2005 (the Act) commenced on 7 October 2005. The Act evolved from previous legislation dealing exclusively with video surveillance. Industrial disputes over employee access to union websites and email, and about GPS tracking technology in the transport industry led to consultation with employer and employee groups, and to the new legislation.
What the new Act covers
The basic requirement of the Act is that employers give notice to their employees that surveillance is taking place. Without the required notice, workplace surveillance becomes covert surveillance. Unauthorised covert surveillance renders the employer subject to criminal prosecution and pecuniary penalty.
Surveillance is divided into three kinds: camera, computer and tracking surveillance. Any kind of surveillance of an employee must not commence without prior notice in writing to the employee. The notice must specify the kind, how continuous, intermittent, for a specified period or ongoing. The notice is to be given fourteen days before surveillance commences or a shorter period if the employee agrees. For new employees, notice should be given before the employee starts work.
It is quite likely then that any employer who has had employee surveillance in place since 7 October without having given required notice is in breach of the Act.
There are additional requirements: for camera surveillance, cameras and camera castings must be clearly visible and signs notifying people they may be under surveillance must also be clearly visible. Computer surveillance must not be carried out unless in accordance with an employer policy and that policy must be notified in advance to employees. For tracking surveillance, notices on the vehicles or things being tracked must be clearly visible.
What the Act does not allow
There is a ban on surveillance of employees in change rooms, toilets, shower or bathing facilities, and of employees while not at work (unless of equipment provided by the employer). Blocking of emails and Internet access by the employer is prohibited unless it is in accordance with the employer's policy, notified in advance, and the employee is given a 'prevented delivery notice' when an email is blocked (this is not required for messages containing spam, viruses or offensive material). A policy cannot restrict email and Internet access merely because messages are sent by unions or to websites related to industrial matters.
Any surveillance not complying with the notice requirements is covert surveillance. Covert surveillance may be carried out only for the purpose of establishing whether or not employees are involved in any unlawful activity at work, and only with an authority issued by a Magistrate. The authority limits the who, when and what of the covert surveillance and the employer is required to report on the use of the authority back to the Magistrate.
Checklist for employers
In order to avoid breaching the Act, employers should:
- consider what constitutes a workplace and which employees and other contractors are covered by the Act
- review all surveillance being undertaken in their workplaces and check the correct notices are in place
- ensure all existing employees are given written (or email) notice prior to surveillance commencing
- if computer surveillance is contemplated, ensure a specifically worded policy is in place and that all employees have read and understood its contents
- ensure surveillance notices are included as part of induction for new employees before they start work.
DAVID BRAY
Director
Employment Law
