Privacy and Surveillance in the Workplace

With the development of new surveillance technologies, there have been growing concerns over the issue of privacy and surveillance in the workplace. In Australia, policymakers and legislators are aware of the need to delicately balance employers’ legitimate interest in monitoring productivity and security, with employees’ right to personal privacy. Federal and state laws, as well as regulations and common law, all inform this tension between privacy and surveillance in the workplace.

Surveillance in the workplace

Workplace surveillance can take several different forms, such as video recording of workplaces, computer, email and telephone monitoring of in-office and remote workers, and GPS tracking of vehicles. Employers typically implement these types of surveillance for legitimate reasons, such as to prevent theft, ensure productivity, and maintain cybersecurity. However, workplace surveillance is subject to legal regulation, and workers have certain privacy rights even in the workplace.

Legal framework

The framework for legal governance of surveillance in Australia is made up of federal and state or territory legislation. Broadly speaking, federal law provides privacy protections in relation to personal information, while state and territory law covers the installation and operation of CCTV. Some jurisdictions also have specific workplace surveillance legislation.

Personal privacy

Under the Privacy Act 1988, and the related Australian Privacy Principles (APPs), employees have personal privacy rights, even in the workplace. Under this legislation, images of an identifiable person, such as CCTV footage of employees, is considered personal information entitled to protection. Employers should therefore respect their employees’ privacy and only implement video surveillance measures that are proportionate, reasonable and necessary for legitimate business needs. Any unwarranted or intrusive surveillance may infringe on employees’ privacy rights.  Additionally, any data that employers collect through surveillance of employees must be collected, used, stored and destroyed according to the Privacy Principles.

The cornerstone of employment law is the Fair Work Act 2009, which also includes requirements for the handling of employee’s personal and sensitive information. Under this legislation, employers have a legal responsibility to take reasonable steps to safeguard an employee’s personal information from theft or misuse. Employers are responsible for maintaining confidentiality regarding employee personal details, medical records and financial data. Only authorised individuals should have access to this information on a need-to-know basis. When the information is no longer needed for the original purpose, the employer should take reasonable steps to de-identify or destroy the information. Employers should also have a privacy policy on the collection and storage of this information.

If an employee believes that their employer has violated their privacy rights, they can lodge a complaint with an authority such as the Office of the Australian Information Commissioner (OAIC) or the Fair Work Commission.

Notification of surveillance

In most jurisdictions, employers have to notify employees of surveillance, through employment contracts, workplace agreements and clear policies. For instance, in New South Wales, the Workplace Surveillance Act 2005 mandates that employers provide at least 14 days’ notice before commencing surveillance, and prominently display signage of camera surveillance. For some types of surveillance, the employer must also seek informed and voluntary consent before installing surveillance.

Because employers can also monitor the activity of workers on electronic devices, company policies should outline the appropriate use of company electronic devices and networks. The policies should inform employees that their communications may be monitored for compliance with company policies and broader legal requirements.

There are specific areas of a workplace that an employer can never legally monitor, including changing rooms, shower facilities and toilets. Permitted surveillance must not incidentally record an area where an employee has a reasonable expectation of privacy.

Covert surveillance is monitoring that takes place without the employee’s knowledge, and it is prohibited in many jurisdictions across the country. However, even in these jurisdictions, an employer can seek an exception through the courts. For instance, in New South Wales, a magistrate can issue an order allowing surveillance to monitor suspected unlawful activity in the workplace.

Case study

The case of Krav Maga Defence Institute Pty Ltd t/a KMDI v Saar Markovitch [2019] examined the use of covert surveillance in the workplace. The Krav Maga Defence Institute was a gym located in NSW. Under the legislation of that state, there were legal requirements for the use of camera surveillance in the workplace. However, the employer installed surveillance with no previous notification to his employees or installation of signage. The employer subsequently used a recording of an employee’s action to justify his termination. The dismissed employee applied to the FWC on the grounds that his termination was based on evidence collected from unlawful surveillance.

In the first instance, the Commissioner excluded the CCTV footage as unlawfully obtained. The Full Bench then found that the Commissioner had erred in excluding the evidence without any deliberation. Instead, the proper approach required the decision maker to consider the probative value of the surveillance and its importance in the case. Ultimately the Full Bench quashed the ruling that the CCTV recording was inadmissible.

Go To Court Lawyers can provide further advice on privacy and surveillance in the workplace. Please get in touch today on 1300 636 846.