New Bill controls workplace surveillance

The New South Wales Government has released an exposure draft of the Workplace Surveillance Bill 2004 (NSW) for comment. The Bill will have a far-reaching effect on employers.

Amongst other things the Bill prohibits:

• camera, computer and tracking device surveillance by employers of their employees at work without employees being notified of that surveillance or unless that surveillance has been previously authorised by a Covert Surveillance Authority ("CSA"). A CSA must only be issued for the purpose of investigating unlawful activities of employees and not to monitor employee performance.
• the blocking of an employee's workplace internet and email access unless that blocking is in accordance with the employer's internet and email policy and that blocking is immediately notified to that employee.

Types of surveillance

The Bill applies only to the following types of surveillance:

• Camera surveillance -the monitoring or recording, by electronic means, of visual images of the employee (eg. by closed-circuit television);
• Computer surveillance - the monitoring or recording by means of software or other equipment of the information input or output, or other use, of a computer used by the employee (including but not limited to, the sending and receipt of emails and the accessing of internet websites), and;
• Tracking surveillance - the monitoring or recording of the geographical location or movement of the employee by means of an electronic device (such as tracking the employee or the vehicle driven by the employee by means of a Global Positioning System device).

Prohibition on surveillance

Section 8 of the Bill prohibits covert surveillance by an employer of their employees at work (ie. at the workplace, or any other place while working) except as authorised by a CSA and only for the purpose of establishing whether or not the employee is involved in any unlawful activity at work.

A CSA does not authorise the carrying out of covert surveillance for the purpose of monitoring the employee's work performance.

"Covert surveillance" is anything that is not "notified surveillance". Surveillance of an employee is "notified surveillance" if:

• the employee has been notified in writing of the intended surveillance at least 14 days (or less as agreed by the employee) before the intended surveillance;
• in the case of camera surveillance, the cameras are clearly visible and there are signs notifying people that they may be under surveillance;
• in the case of computer surveillance, the employee is given notice in advance of the surveillance and of the nature of the surveillance (by means of a written notice clearly visible in the vicinity of the computer, or audible announcement or written notice when the employee logs onto the computer or starts a program the subject of the surveillance);
• in the case of tracking surveillance, the employee is given notice in advance of the surveillance by means of a notice clearly visible on the vehicle or thing being tracked;

As with the existing Workplace Video Surveillance Act 1998 (NSW), which the Bill repeals, the Bill prohibits surveillance of any change room, toilet facility or shower or other bathing facility at work and surveillance of an employee while the employee is not at work.

It is a defence to a breach of the section 8 covert surveillance prohibition if the employer proves that the covert surveillance of an employee was carried out solely for the purpose of ensuring security of the workplace or persons in it, and that surveillance of any employee was extrinsic to that purpose and that there was a real and significant likelihood of the security being jeopardised if covert surveillance was not carried out.

Emails and website blocking

Section 11 prohibits the blocking of emails sent to or by an employee and website access by an employee unless the employer is acting in accordance with the employer's email and internet access policy. The email and internet policy must be communicated to the employee prior to any blocking of that email or website. Employees must be immediately notified that an email has been blocked except in the case of spam or menacing or offensive emails. An employer's email and internet access policy must not authorise blocking of emails or websites merely because the content of those emails or websites relates to industrial matters (such as stop-work meetings).

Covert Surveillance Authorities

In order to conduct covert surveillance in their workplace, an employer must first obtain a CSA from a Magistrate under section 14.

In considering an application for covert surveillance, a Magistrate must be convinced that the grounds justifying its issue are reasonable. Magistrates must also consider whether the surveillance would unduly intrude on the privacy of the employee concerned, or any other employees particularly in locations in which employees are not directly engaged in work such as recreation rooms or meal rooms (sections 16 and 17). An applicant for a CSA, following a decision of a Magistrate to refuse to issue, vary or cancel a CSA application, can apply to the Industrial Relations Commission within 30 days of that Magistrate's decision to issue, vary or cancel that CSA. Similarly an employee can apply to the Commission to vary or cancel a CSA.

Reporting and disclosure requirements

Under section 26 of the Bill an employer must provide a report to the issuing Magistrate within 30 days of the expiry of the CSA, specifying amongst other things, the name of the employee who was the subject of the surveillance, the period of surveillance, details of the type of surveillance, details of any surveillance record and any reason why an employee who was the subject of the surveillance should not be informed of the surveillance.

Section 28 of the Bill provides that disclosure of the surveillance record may only be made in certain circumstances, such as disclosure to a law enforcement agency for investigation of an offence or in disciplinary or legal proceedings against the employee. Under section 8(5) of the Bill, any recordings obtained by covert surveillance which are unrelated to the security of the workplace must not be admitted in evidence in any disciplinary or legal proceedings against an employee unless the desirability of admitting the evidence outweighs the undesirability of admitting that evidence.

The Bill also regulates the storage of covert surveillance records by employers, employers' representatives and licensed security operators and provides for fines of up to $2200 per breach of the record storage provisions.

Comments on the Bill

Comments on the Bill can be submitted to the NSW Attorney-General's Department until 4 August 2004. If you would like further information on the Bill and assistance in preparing comments, please contact your nearest Clayton Utz partner.