With the development of technology, it is unsurprising that employers are implementing security cameras within their workplace. The use of surveillance devices, such as security cameras or CCTV, provides employers with the guarantee that their employees are doing the right thing. However, the interests of the employer and the employee must be balanced. It is important to establish clear workplace privacy expectations to maintain employee confidence and trust. This article will outline the laws relating to workplace surveillance and tips for employers in maintaining their privacy obligations.
What does the law say?
There is no uniform law about workplace surveillance, including security cameras. However, an employer must follow any relevant Commonwealth, state or territory laws if they are planning to install surveillance devices in their workplace.
Commonwealth law
The Privacy Act 1988 (Privacy Act) regulates the collection of personal information. The Privacy Act covers Australian government agencies, businesses with an annual turnover of more than $3 million and a limited range of small businesses. Such organisations must comply with the Australian Privacy Principles (APPs). This includes notifying individuals that their image may be captured and that any recorded personal information is secure and will be destroyed when it is no longer needed. While it is not mandatory for all businesses to comply with these principles, all employers should aim to incorporate these principles into their workplace policy. As previously discussed, this increases employee satisfaction and confidence. You can read more about the APPs here.
State laws
Some states also have specific workplace surveillance laws. The Workplace Surveillance Act 2005 (NSW) applies to the use of optical surveillance, computer surveillance and tracking surveillance. In NSW, employers must give written notice to an employee at least 14 days before the surveillance commences. The written notice must be given before the employee starts work if surveillance has already commenced or is due less than the 14 days. The notice must include:
- the kind of surveillance (camera, computer or tracking)
- how the surveillance will be carried out
- when the surveillance will start
- whether the surveillance will be continuous or intermittent
- whether the surveillance will be for a specified limited period or ongoing.
Are there any restrictions?
The NSW Act provides certain restrictions on the use of surveillance devices. For example, an employer must not use any surveillance in change rooms, toilets or other bathroom facilities at a workplace. It is also prohibited to carry out surveillance if the employee is not at work.
In some instances, a Magistrate may issue an authority authorising covert surveillance to an employer. The authority allows an employer to conduct surveillance without providing notice. This may be for the purpose of monitoring unlawful activity at work. However, an employer will be penalised if covert surveillance is carried out without obtaining authority from a court.
Recommendations for employers
As previously mentioned, there is no uniform law concerning workplace surveillance. Therefore, it is important that employers know relevant state laws and are aware of the APPs. Here are some recommendations for employers to ensure that their workplace is considering the interests of employees in implementing surveillance devices.
Provide notice to employees
It is important that current and prospective employees are notified before the use of surveillance devices. This should include details about the kind of surveillance being carried out and when the devices are operating.
Establish a surveillance policy
Having a surveillance policy ensures that there is a consistent approach in surveilling the workplace. The policy should set out how the business is protecting the footage and the certain expectations on the use of such devices. Employees should be aware of the surveillance policy and be notified of any updates or changes.
Incorporate APPs in the work policy
As previously discussed, businesses should incorporate the APPs into their workplace privacy policy. This approach helps move your business towards best practice and ensures that a workplace is complying with its legal obligations, which in turn, increases employee trust.
