NSW Government Bulletin

Workplace surveillance – when is it legal?

Employers in NSW use various technical means to monitor the behavior of their employees and the general operations of their workplaces. Other reasons for workplace surveillance may be to detect theft or fraud, or to assist in monitoring work, health and safety issues (so that all workplace incidents are clearly documented).

In recent years, technology has increasingly been used to monitor employees. For example, increasing coverage of CCTV in workplaces and tracking employees’ location via vehicle-mounted GPS systems. “Spyware” has also been used to track computer and Internet access and usage. However, the surveillance of workers, and in particular the question of how the information obtained through surveillance can be used, is an issue that is regularly the subject of labor law disputes.

In this article we summarize the laws governing surveillance of employees and workplaces in NSW and how the Fair Work Commission has dealt with evidence obtained through surveillance in two recent cases.

Relevant workplace surveillance laws and requirements in NSW

overview

The applicable workplace legislation in NSW is the Workplace Surveillance Act 2005 (WS law).

The purpose of the WS Act is to regulate the use of visual, acoustic, electronic and tracking surveillance in the workplace. In summary, the WS Law states:

  • Requirements for employers to inform workers of the type of surveillance to be used, how it will be carried out, when it will begin, whether continuous or intermittent and for a period of time or on an ongoing basis
  • Camera surveillance, computer surveillance or tracking surveillance requirements
  • prohibited types of surveillance
  • Restrictions on Convert Monitoring and Retention of Monitoring Records
  • Consent Monitoring Provisions.

Specifically with regard to notification, the WS Act requires an employer to give an employee at least 14 days written notice before beginning workplace surveillance, or a shorter period if the employee consents. The notice must explain:

  • the type of monitoring (e.g. whether it includes audio or tracking)
  • Date and time the monitoring started
  • whether the monitoring is continuous or intermittent
  • be it for a specific period of time or an ongoing practice.

Camera surveillance may only be carried out if the cameras are clearly visible and signs are posted at each entrance to the work site advising employees that they are under surveillance.

Employee computer monitoring can only be done where there is an existing policy and the employer gives advance notice and ensures employees understand the policy.

Also, surveillance will only meet the requirements of the WS Act if the employee has consented to surveillance on the premises for a purpose other than surveillance of employees and the relevant surveillance is carried out in accordance with this Agreement.

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The use of surveillance devices in NSW is also regulated by the Surveillance Devices Act 2007 (NSW) (SD law). A surveillance device is defined as a listening device, data monitoring device, optical device or tracking device. The SD law includes:

  • the installation, use and maintenance of surveillance equipment
  • the requirements for obtaining warrants and emergency permits from law enforcement
  • Restrictions on the Use, Transmission, and Disclosure of Information Received from Surveillance Devices
  • Reporting and Records.

The maximum penalty for violating the WS Law is $55,000. However, under the SD Act, heavier penalties apply, with most offenses carrying a maximum fine of $550,000 (for corporations) and $110,000 (for individuals) and/or five years imprisonment.

Prohibited workplace surveillance NSW

Covert workplace surveillance is surveillance that takes place without the knowledge of employees. This type of surveillance is strictly prohibited in NSW. The only exception applies to an employer with a covert surveillance warrant issued by a judge (which can only be issued if the court is satisfied that the relevant criteria are met).

There are also certain areas of a workplace that cannot be monitored, including toilets, changing rooms and shower facilities. Any permissible surveillance must not record (even inadvertently) an area in which an employee has an expectation and right to privacy.

Current cases

The most common issue raised in the Fair Work Commission (FWC) in relation to evidence obtained through surveillance is how that evidence was obtained and whether it will consequently be included in the proceedings.

The two cases below illustrate that whether the RV accepts evidence that was “improperly obtained” depends more on the circumstances of the individual case than on a clear-cut approach that applies to all.

This corresponds to the fact that the RV is not technically bound by the rules of evidence and can inform itself at its own discretion, ie it has much greater discretion as to which evidence it admits and considers than a court. However, the hurdle for the FWC to exercise this discretion will be raised and consequently evidence will be less likely to be admitted when improperly obtained (e.g. in a manner that constitutes a violation of relevant laws). ).

Use of improperly acquired material by an employer

This question of whether an employer can rely on illegally obtained surveillance footage as evidence in the defense of a wrongful dismissal claim was examined by a Full Bench of the FWC in Krav Maga Defense Institute Pty Ltd t/a KMDI vs. Markovitch [2019] FWCFB 4258 (Kra Maga).

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In this matter, the employer used cameras in its martial arts studio to monitor its employee, Mr. Markovitch. CCTV footage showed Mr Markovitch using his phone on several occasions when he should have been supervising his lessons. Consequently, his employer considered that Mr. Markovitch was not properly performing his duties and in particular was not paying due attention to the supervision of the students in his class. He was subsequently dismissed without notice for violating relevant guidelines. Mr Markovitch was aware that the cameras recording his misconduct were operational, but the employer did not give him 14 days’ notice of the start of surveillance and there was no indication that the cameras were operational.

In the first instance, the FWC found that the CCTV evidence had not been obtained in accordance with the requirements of the WS Act and was therefore inadmissible. However, the Full Bench overturned the first instance decision and upheld all grounds for the employer’s appeal.

The Full Bench accepted that there was sufficient evidence to support the employer’s claim that the surveillance had taken place with the employee’s consent. The Full Bench held that the agreement did not have to be in writing and could be implied. In this case, it was implied because Mr. Markovitch had been involved in installing the cameras, authorized payment for the cameras to be installed, and had not objected to or complained about the cameras.

The Full Bench also accepted that the surveillance served a different purpose than staff surveillance, namely to protect staff and students.

Reliance on surveillance footage by an employee

An example of where an employee’s covert recordings were used to support his version of events was in Kelly Walker (No.2) [2019] FWC 4862. In this case, Ms Walker unsuccessfully attempted to allow secret recordings of meetings with colleagues as evidence in her motion for an order to end bullying and in support of allegations of breaches of various laws, including the Fair Work Act 2009 (Cth) , health and safety laws and whistleblowing laws. Ms Walker submitted to the FWC that a police officer told her that she could legally secretly record conversations if she had concerns about her safety.

The employer submitted that the employee’s undercover call recordings constituted a violation of Section 7(1)(b) of the SD Act. In addition, the employer produced a statement he received from the police officer in charge, saying he had told Ms Walker that she could keep written records of any meetings she attended, but he had never told her that they had a legal right to audio recording of all conversations between the parties.

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Deputy President Sams first noted that whether or not a court later found that there was a violation of the SD Act, the FWC may allow evidence obtained unlawfully or otherwise to be used “in such a manner as it found it necessary for considers appropriate”. However, DP Sams then stressed that secret records were highly inappropriate, citing Deputy President Colman’s observations in Gadzikwa v. Australian Government Department of Human Services [2018] FWC 4878, where he stated:

“I consider the secret recording of conversations with colleagues to be highly inappropriate without justification, regardless of whether it can also be a criminal offense in the relevant jurisdiction … as soon as it is known that a person has secretly recorded a conversation, this can create a feeling in others of Induce foreboding, a fear that they must be cautious and vigilant. This is potentially corrosive to a healthy and productive work environment.

In general, it is not advisable to secretly record conversations with colleagues at work” (at [83]).

In deciding not to admit the recording into evidence, DP Sams relied on the following factors:

  • The employees’ claims that they had police authority to secretly record a meeting with their employer turned out to be false
  • there were questions of procedural fairness as the employee’s evidence case was long closed when she attempted to present the evidence and the employee had not stated how many meetings she had recorded
  • It became increasingly difficult to handle the case when new evidence was fed into the process at inopportune times and the employer was not given an opportunity to raise new issues
  • the case authorities that the employee wished to rely on were distinguishable from the employee’s circumstances.

Accordingly, DP Sams denied the employee’s request for leave to take evidence.

Author: Andrew Klein

Disclaimer
The information in this publication is general in nature and is not intended to take into account the circumstances of any particular person or entity. While we strive to provide accurate and timely information, we do not guarantee that the information in this article is correct at the time it is received or that it will continue to be accurate in the future.

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