Surveillance in the workplace – what’s allowed and what’s not under Australian law

Surveillance in the workplace is a complicated issue that’s becoming more prevalent.

As technology becomes increasingly entrenched in our lives, especially as tools for work, the opportunity to monitor the activity of employees becomes easier.

But when does surveillance become a breach of privacy and where does the law stand?

In Australia, there is no blanket right to privacy. Instead, privacy is regulated by a complicated framework of Federal and State laws, and often there is uncertainty as to when and where employers are permitted to monitor their employees.

This article summarises the position under Victorian and Federal laws, noting that exceptions may apply where a warrant or emergency authorisation is obtained to commence a surveillance process.

Optical and audio surveillance

In Victoria, the Surveillance Devices Act 1999 (Vic) (SD Act) makes it an offence for an employer to install, maintain or use a surveillance device to observe, listen to, or record a ‘private activity’ of an employee, without consent. ‘Private activities’ are taken to mean activities carried out in circumstances that reasonably the party (or parties) may only want observed by themselves.

The SD Act also strictly prohibits optical and audio surveillance of employees in private areas of the workplace, such as toilets, washrooms, change rooms and lactation rooms, irrespective of whether consent is obtained.

Phone calls

Under the Telecommunications (Interception and Access) Act 1979 (Cth) it is an offence to listen to, or record phone calls through a telecommunications network without the knowledge of those involved in that communication. This includes conversations in relation to employment matters, which means such discussions cannot be recorded (including on smart phone devices) without both the employee’s and employer’s consent.

Electronic monitoring

Provided the workplace has a sound policy in place and employees are aware of that policy, employers are generally permitted to monitor an employee’s work email account. However, it is critical that employees are given notice that their email account will be monitored, and that appropriate use of work emails is expected.

Tracking devices

Express or implied consent is required to install, use, or maintain a tracking device (such as a GPS device) to determine the location of a person or an object.  For example, if employers are seeking to track a company vehicle, the driver of such a vehicle would need to provide their consent to the surveillance.

Lessons for employers

• Employees are afforded a reasonable expectation of privacy, and using surveillance to monitor them may be an offence.
• In particular, if an employee’s emails are to be monitored, the employer must let them know this will happen in advance (e.g. via a policy) and this should only happen in accordance with company policy.
• As well employers not being able to record conversations without an employee’s consent, employers also have such protections and in some cases may want to remind employees that they cannot covertly record discussions without their consent.

Workplace surveillance matters can be very difficult to navigate.  To ensure that your workplace practices are compliant in this area please contact our Employment, Safety and Migration team.