MDC Legal Senior Associate Nikita Barsby and Associate Renae Harg discuss the growing accessibility of surveillance technology and whether it’s legal in the workplace. Monitoring an employee’s activities in the workplace without their consent will likely breach legislation relating to surveillance devices, they write.
As surveillance technology becomes more accessible and affordable, workplace surveillance may become more appealing to employers looking for additional ways to protect their businesses. Video surveillance, GPS/tracking devices, monitoring of employees’ emails and computers and recording of employee calls are all popular methods of workplace surveillance.
However, before engaging in workplace surveillance, it’s important for employers to ensure they are doing so lawfully.
New South Wales and the Australian Capital Territory have dedicated workplace surveillance legislation (Workplace Surveillance Act 2005 (NSW) and Workplace Privacy Act 2012 (ACT)), setting out notice and consultation requirements regarding surveillance.
While other states do not have specific workplace surveillance legislation – they do have legislation relating to surveillance devices (including tracking devices), which can apply to the workplace. This legislation restricts how surveillance devices can be used. Generally, an employee must consent, either expressly or impliedly, to the surveillance of private activities or private conversations.
The Telecommunications (Interceptions and Access) Act 1979 (Cth) also places limitations on the recording of telephone conversations.
The legislation relating to surveillance devices sets out specifically what constitutes a “private activity” or “private conversation”, however, generally, a private activity or conversation is not one which the parties “ought reasonably to expect… may be overheard or observed” (Re Surveillance Devices Act 1998; Ex Parte TCN Channel Nine Pty Ltd  WASC 246). Private activities or conversations may occur in any workplace, whether the workplace is a corporate office or a public space, such as a retail store.
Use of surveillance as evidence
Workplace surveillance can be useful to ensure employees are not engaging in misconduct – however must be properly obtained by an employer to enable it to rely on the surveillance in disciplinary action or litigation. The recent Federal Court decision of Chappell v Griffin Coal Mining Pty Ltd  FCA 1248 is a sound reminder of this.
In this case, an employee was caught making adverse comments about the employer to an external person on a video surveillance device worn by a security guard hired by the employer. When the employer sought to rely on the surveillance as evidence of misconduct, the employee argued that the evidence was improperly obtained – as the recording was of a private conversation that he did not consent to being recorded.
The Court held it was arguable that the conversation was a private conversation, and that therefore the recording may have breached the Surveillance Devices Act 1998 (WA). On this basis, the Court granted the employee an injunction, restraining the employer from relying on the recording as evidence.
Recommendations for employers
Monitoring an employee’s activities in the workplace without their consent, whether express or implied, will likely breach legislation relating to surveillance devices.
Where employers intend to undertake surveillance in the workplace, they should inform employees in writing, including informing them of how the surveillance will be undertaken. Best practice is to communicate this in a workplace surveillance policy that, as with all policies, is easily accessible by employees, is provided to all new employees upon commencing employment and which is complemented by a written employment contract confirming the employee is obliged to make themselves aware of and comply with all workplace policies and procedures.
Any policy should consider the requirements of any relevant legislation of the state in which the surveillance is being undertaken. In particular, employers in New South Wales and the Australian Capital Territory should be mindful of the specific notice and consultation requirements in their workplace surveillance legislation.
In some situations, such as retail stores, it may be clear to employees that their activities are being monitored by video surveillance due to the nature of the industry. However, while it may be arguable that, in these circumstances, an employer may assume that if employees don’t object to the surveillance they have impliedly consented to it, best practice is still to provide written notification of the surveillance.
Nikita Barsby (BA LLB, Murdoch University) is a Senior Associate at MDC Legal, with almost a decade’s experience in workplace and employment law. She is recognised as a recommended employment lawyer in Doyle’s Guide to the Legal Profession, 2018. Nikita has worked with Corrs Chambers Westgarth and Lynn & Brown Lawyers, prior to joining MDC Legal. Nikita has advocacy and negotiation experience in the Federal Court of Australia, the Federal Circuit Court of Australia, the Magistrates, District and Supreme Courts of Western Australia, in the Fair Work Commission and in the Western Australian Industrial Relations Commission. She advises employees and employers on all aspects of State and Federal workplace laws. Nikita also works with Human Resources practitioners and business owners in the development of workplace relations strategies, policies and procedures. Contact Nikita at firstname.lastname@example.org
Renae Harg (BA LLB, University of Western Australia) is an Associate at MDC Legal. Renae has practiced in employment law since 2013. Prior to commencing with MDC Legal, Renae worked at a global law firm and boutique WA employment law firm. Renae has a broad range of experience in providing employment and workplace relations advice and has acted for individuals as well as small, medium and global employers. Renae provides advice and assistance in all employment law matters, including termination of employment, unfair dismissals, adverse action, discrimination, drafting of employment contracts and policies, enterprise bargaining, post-employment restraints and workplace investigations. Contact Renae at email@example.com
Disclaimer: This document should not be relied on as legal advice. If you require legal advice about any specific employment law issues that arise, contact MDC Legal or a lawyer in your state.