Workplace Surveillance and Monitoring (Qld)

Queensland employers may subject their physical workplaces, online environments, or employees to surveillance and monitoring for a number of reasons such as to monitor staff attendance at work and performance, to detect fraud, to detect inappropriate use of Internet or email, or to ensure safety. Any workplace surveillance and monitoring that occurs in Queensland must be conducted in accordance with federal and state laws. This page deals with workplace surveillance and monitoring in Queensland.

Why conduct workplace surveillance?

One of the most compelling reasons for conducting workplace surveillance is to have objective evidence in the event that an incident occurs which has legal implications. In some cases, an employer may be vicariously liable for a tort committed by an employee. However, if CCTV footage can establish that the individual was acting outside of the scope of their employment, or was engaging in willful misconduct, the employer will not be liable for their actions.

How is workplace surveillance conducted?

Workplace surveillance may be conducted with the use of a range of surveillance technology, including optical surveillance such as cameras, CCTV, and video recordings and data surveillance such as the monitoring of email correspondence and Internet use.

Surveillance may also occur when employees are out of the office, through the placement of dashboard cameras in company vehicles, or through wearable cameras attached to the clothing of staff members who are carrying out their duties in public places.

Is workplace surveillance legal?

Employers are permitted to carry out workplace surveillance to ensure that staff are using resources appropriately, and to monitor performance. Employers are permitted to monitor staff email and Internet use provided that the workers are made aware that these accounts are monitored.

Workplace surveillance and monitoring that occurs beyond the parameters of what is permissible may constitute a criminal offence.

The Privacy Act 1988

Employers that are covered by the Privacy Act 1988 must ensure that their surveillance practices comply with the Australian Privacy Principles. The Australian Privacy Principles are a set of 13 principles to which entities must adhere when dealing with personal information.

An employer is covered by the Privacy act 1988 if it is a company with an annual turnover of more than $3,000,000, if it is a healthcare provider, or if it is a government department or agency. Employers that are not covered by the Privacy Act 1988 should nonetheless be guided by its principles, and by the Workplace Privacy Best Practice Guide produced by the Fair Work Ombudsman.

Criminal offences

Under section 227A of the Criminal Code, it is an offence to take video recordings or photographs in areas where a person has a reasonable expectation of privacy – such as in a toilet, bathroom, bedroom, or changing room. A person who takes photos or video recordings in these areas commits an offence which is punishable by a maximum penalty of three years imprisonment.

It is important that an employer that is carrying out workplace surveillance and monitoring that includes taking photos or video recordings take steps to ensure that surveillance cameras do not inadvertently intrude into spaces where they are not permitted.

Workplace surveillance review on hold

In 2018, the Queensland Law Reform Commission was asked to review the privacy protections for Queensland workers in the context of workplace surveillance.

The commission was asked to make recommendations as to whether Queensland should have legislation to:

• regulate workplace surveillance
• regulate the communication and publication of information obtained from surveillance devices
• create offences relating to the unlawful use of surveillance devices
• otherwise protect the privacy of work in relation to surveillance devices.

However, this review is currently on hold due to the terms of reference changing.

Other states and territories

The laws surrounding workplace surveillance and monitoring differ between different Australian jurisdictions. In New South Wales, the ACT, and Victoria, there is dedicated legislation that deals with workplace surveillance. In other states, workplace surveillance is captured by general privacy and surveillance laws such as the Privacy Act 1988 as well as criminal legislation that makes it an offence to carry out particular types of surveillance and recording

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.