Workplace Surveillance and Monitoring (Vic)

Victorian employers may engage in workplace surveillance and monitoring for a number of reasons, and this monitoring may be carried out in different ways. Any Victorian employer that carries out workplace surveillance and monitoring must abide by the provisions of the Surveillance Devices Act 1999. This page deals with the laws surrounding workplace surveillance and monitoring in Victoria.

What is workplace surveillance?

Workplace surveillance and monitoring can take many different forms and can be done for a number of reasons. Surveillance may be conducted for legitimate reasons such as ensuring employee and customer safety, to protect assets, and to monitor quality control and employee behaviour. However, if surveillance is not done for legitimate reason and is not done in a permissible way it may amount to a committal offence.

Monitoring may be carried out to create a record of events and actions that occur during the course of an employee’s work. This is because in some circumstances, employers can be held the vicariously liable for the torts of their employees and surveillance may be necessary to establish whether a person was acting within the scope of their lawful duties when an incident occurred.

Workplace surveillance may be conducted in a number of ways. A physical workplace environment may be surveilled with the use of audio-visual equipment. The use of work email accounts and Internet by staff may be monitored to ensure that employees are not exposing the company system to malware. Employees may also have their conduct and interactions with the public monitored with the use of body cameras that are attached to their person. Company vehicles may be fitted with tracking devices that monitor their location.

Workplace surveillance that is permitted

An employer is permitted to use surveillance to monitor the attendance and performance of its staff, to detect fraud, and to ensure workplace safety. This surveillance may occur in general office spaces and online, and in some cases, when workers are out of the office carrying out their work in public places.

Workplace surveillance that is not permitted

Surveillance devices must not be placed in the toilets, bathrooms, change rooms, or lactation rooms of workplaces (section 9A)

It is a criminal offence to knowingly place surveillance devices in these areas. This offence can attract a penalty of up to two years imprisonment or a fine of up to 1200 penalty units.

Australian Privacy Principles

Businesses and entities that are covered by the Privacy Act 1988 must comply with the Australian Privacy Principles, when implementing workplace surveillance and monitoring. The Privacy Act 1988 covers businesses with an annual turnover of more than $3,000,000, as well as health services and public sector agencies.

Workplace Privacy Best Practice Guide

The Fair Work Ombudsman has produced a Workplace Privacy Best Practice Guide to help employers to understand their obligations with respect to keeping their employees’ personal information private.

The Guide recommends that employers clearly communicate to their staff that:

  • electronic communications from work email accounts are not private
  • which areas (if any) are under surveillance and who has access to this information

Notify all parties of surveillance

If a company is in the process of implementing surveillance and monitoring of the workplace, it should inform all parties including employees and customers that they are being monitored before the monitoring commences. If the nature, purpose, or method of the monitoring changes, party should be informed of the change and the reasons for the change.

If a common area is being surveilled, it is often appropriate to have a notice of this displayed within view. When new employees are on boarded, they should be informed of any surveillance and monitoring that occurs in the workplace.

Ask for consent

In some cases, it is a good idea to ask parties for their consent prior to carrying out surveillance, particularly if sensitive information is going to be obtained. Employers should develop policies as to how long information is retained, and how it is stored.

Companies should ensure that there surveillance practices are not (and do not appear to be) discriminatory. Surveillance practices that involve some employees being monitored, while others are not, may appear discriminatory.

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

Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
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