With technology in business and our everyday lives increasing at a rapid pace, employers conducting surveillance on their employees is becoming more common. In response, employees are asking for their privacy to be respected. The intersection of these rights is not straightforward, with the law being spread across commonwealth and state legislation.
In Victoria, it is only an offence for an employer to use an optical surveillance device to record or observe a private activity without the express or implied consent of the persons being monitored. This means that if it is a public activity or the employee consents to the surveillance, the employer can use optical surveillance such as a video camera or web-cam.
So What is a Private Activity?
The law defines a private activity as one that is carried out in circumstances that may reasonably be taken to indicate that the parties only want it to be observed by themselves. This clearly precludes an employer from having cameras installed in washrooms, change rooms or an employee’s private residence.
However, employees should be aware that there are exceptions where certain court orders or warrants are in place.
The use of listening devices is governed by the Surveillance Devices Act 1999 (Vic). Listening devices cover technology which allow audio recording, including cameras, listening and data surveillance devices.
The legislation makes it an offence to use or install a listening device to record or listen to a private conversation to which you are not a party. This generally includes conversations between employees when having a private lunch together and discussing their employment or employer.
In most cases an employer will commit an offence if they listen to or record telephone calls through a telecommunications network pursuant to the Telecommunications (Interception and Access) Act 1979 (Cth).
Tracking devices, such as GPS locators, can be installed, used or maintained to determine the location of an employee as long as the employee has given their implied or express consent. This also applies to installing tracking devices on vehicles, such as a company car.
The easiest and least controversial means of obtaining consent is by having the employee sign a term in the employment contract agreeing to the tracking device. Alternatively, there can be a company policy which the employee agrees to abide by as part of their employment contract.
Using Surveillance as Evidence
In order for an employer to rely on surveillance as evidence in disciplinary action or litigation, the evidence must have been obtained properly. In other words, the evidence is to be obtained in accordance with federal and state legislation.
In the recent case of Chappell v Griffin Coal Mining Pty Ltd  FCA 1248, the Court held that a video surveillance device worn by a security guard could not be relied upon to prove misconduct of another employee which was discussed on camera. The Court found that the conversation was a private conversation between the employee and security guard and the employer had not first obtained the employee’s consent to record the conversation.
Best Practices for Employers
As a first step, employers should make sure that they are familiar with the legislation regarding surveillance of employees and if not, ensure they seek legal advice.
Employers can then:
- Implement a workplace surveillance policy setting out what employer surveillance takes place (or may take place) and the expectation of employees. For instance, this can include that you will monitor work emails and expect employees to only use work emails and internet for work purposes;
- Ensure that any workplace policies are easily accessible by employees;
- Make sure employment agreements or policies are signed by employees to obtain express consent to undertake surveillance;
- Aim not to conduct excessive surveillance as this may sour the employment relationship and lead to an increase in staff turn-over; and
- Ensure there is a process in place to record and deal with any employee complaints.
If you are an employee or employer wanting to clarify your rights regarding surveillance in the workplace, please contact an employment solicitor at Taurus Legal Management team on (03) 9481 2000.