As an employer, monitoring your employees can be useful to ensure productivity and their own safety. With working from home becoming such a common option too, having surveillance also allows employers to properly meet their Work Health and Safety obligations in a remote workspace. 

However, the extent to which employees are monitored is debatable. Installing workplace cameras and surveillance is generally legal in New South Wales according to the Workplace Surveillance Act 2005 (NSW) as long as the kind of surveillance does not breach the employees’ privacy rights (we’ll cover this in more detail later in this article).

Although working from home is becoming an increasingly popular option, it can be difficult for employers to find the balance between monitoring their employees without overstepping the bounds of their privacy. 

Understanding your employer obligations when using surveillance is key to striking this balance. Read on to find out more. 

Are Cameras Legal In The Workplace?

Yes, cameras are legal in the workplace. However, there are limits to how surveillance cameras can be used. The Workplace Surveillance Act 2005 (NSW) strictly prohibits two core practices when using cameras on employees. 

  • Cameras cannot be installed to monitor employees in places where they are entitled to privacy, such as bathrooms and changing rooms
  • Employees must always be made aware of any cameras that are watching them

Can I Track Employees While They Work From Home?

Yes, certain programs and technology can be used to track employees as they work from home. Employers can choose to monitor emails, login and log off times, chats and searches to keep tabs on their employees. GPS trackers can also be installed for employees that travel for work. 

Employers have even been known to access the webcams of employees that work from home or devices that create alerts for when they leave their designated workspace. The technology to monitor employees is widely available, however, the extent to which it is engaged will depend on the employer. 

Giving Notice To Employees

Section 10 of the Workplace Surveillance Act 2005 (NSW) states that employees must be given 14 days notice prior to being monitored by workplace surveillance methods. In addition to a two week notice, employers are also required to provide information regarding the following in the notice: 

  • The kind of surveillance
  • The places the surveillance will be administered
  • The length of the surveillance 
  • The purpose of it 
  • What the information the surveillance collects will be used for 

It’s worth adding this kind of information in your workplace policies so that employees can refer to them and understand that you, as an employer, are complying with privacy laws.

It’s also a great way for new employees to understand how this will work from the outset, creating a smooth onboarding process. 

What Do Privacy Laws Say?

There are two main sources of legislation that deal with surveillance in the workplace:

Privacy Act 1988 

The Privacy Act 1988 does not specifically address workplace surveillance. However, the legislation is still relevant as it sets out the standards of privacy people are entitled to. 

For example, the Act requires businesses to have a Privacy Policy if they are collecting personal or sensitive information. There’s no way of knowing for sure whether you will be collecting personal information through the use of surveillance for your employees, however, it’s better to be safe than sorry. 

To comply with the Privacy Act and avoid penalties, it’s good practice to disclose your use of surveillance in your Privacy Policy and notify employees of how you will be monitoring them (we’ll cover this in more detail shortly). 

As an employer, it’s wise to have a legal professional talk you through your requirements under the Privacy Act or the Australian Privacy Principles (APP). In doing so, you can be certain you have taken steps to respect your employees’ privacy while engaging in workplace surveillance. 

Workplace Surveillance Act 2005 (NSW) 

The Workplace Surveillance Act 2005 (NSW) is the presiding authority over workplace surveillance in NSW and the ACT. The Act summarises the following matters:

  • The kind of surveillance that can be conducted
  • here it can be applied
  • The notice that needs to be given to employees
  •  What can be done with the information obtained from workplace surveillance

For example, section 10 of the Act requires employers to provide notice to employees that they will be under surveillance, and this should be given 14 days before monitoring commences. 

Workplace surveillance laws are not uniform across Australia, therefore, it’s important to check the relevant legislation for your state. Workplace surveillance information can also be found in company policies, Employment Contracts and websites for larger institutions such as universities. 

Are Workplace Cameras Ethical? 

Since the disruptions caused by COVID-19, workplace surveillance laws are yet to catch up to these new working arrangements. 

As an employer, privacy is one of the biggest considerations in the workplace. As such, a common dilemma you’ll find is whether it is actually ethical to engage in monitoring your employees through surveillance. 

It’s crucial to draw the line between monitoring your employees under your workplace obligations and impeding on their right to privacy. Workplace surveillance and monitoring can be a breaking point for many employees, where too much surveillance can cause unnecessary stress, anxiety and potentially a strained relationship with employees. 

It can be a tricky area to navigate, especially if you run your business from home. Our expert lawyers are happy to chat you through your options if you need any legal help around Data & Privacy and Employment Law

My Employees Work From Home – What Other Obligations Do I Have?

Even when  employees work from home, employers still have a number of responsibilities towards their employees that need to be fulfilled as if they were working in a physical office. 

Eliminating the presence of an office does not take away employer obligations towards the employee. The most significant example here is Workplace Health and Safety

Work From Home (WFH) Policy

WFH policies aim to keep all employees safe and businesses operations running smoothly, even if they are not present. It basically acts as a guide for employees and employers alike to understand their obligations to contribute to a safe and inclusive workplace, consistent with your business values. 

WFH policies can include matters such as:

  • Safe work practices
  • Work from home processes
  • Behaviour and professionalism on work message threads 
  • Rules around businesses equipment
  • The expectations of employees regarding work from home processes
  • The responsibilities of the employer

A work from home policy will look different based on the business and its specific requirements. For example, employers will have different ways of fulfilling their WFH obligations.

Some workplaces may require a full scan of employees’ WFH spaces, whereas other businesses might prefer to simply send out a short survey to employees to report whether their workplace is safe to work in or not.

This kind of policy is also essential as your employees will be accessing your business’ confidential information at home, where they may be living with family members or roommates. 

It’s important to take extra steps to protect that confidential information and incorporate these processes into your WFH policy, such as two factor authentication when accessing certain data remotely.  

Privacy Policy

If the Privacy Act applies to your business (for example, if you have an annual turnover of $3 million or more), then you will need to have a Privacy Policy. It also applies if your business collects sensitive or personal information. 

While the use of workplace surveillance might not necessarily involve the collection of personal information, it is still worth having a Privacy Policy in place.To be 100% safe, it’s good business practice to remain transparent with your employees about how you may be recording them or their activity while working. 

Fair Work Australia has also made it quite clear that employers should tell employees how their information is being used and disclosed, so having a Privacy Policy that covers this matter will ensure consistency in your internal business practices, too. 

Example
Sarah works for John’s online business, and works from home full-time. She works as a  customer service representative and  is in constant contact with various clients. 

Her phone calls and other interactions with customers are recorded and stored for security purposes, and at times, is  used to train new recruits. 

Sarah is made aware of this through written notice at the beginning of her employment and agreed to it prior to her first day. 

Giving Notice

As mentioned previously, under the Workplace Surveillance Act 2005 (NSW), all employers need to give their employees at least 14 days notice if they are about to be the subject of surveillance. The same notion applies for work from home surveillance

As an employer, if you are tracking the activity of employees who are working remotely, it’s important to follow the same regulations regardless. 

Example
Andy runs a small eCommerce business from home. As his team is growing, he is concerned about making sure everyone is communicating with each other appropriately over text channels, emails, zoom meeting and messages. 

To ease his concerns, Andy instals a tracking software on all the employee methods of communication. Andy calls a business-wide meeting introducing the new changes, emails everyone a copy of the notice, creates a surveillance policy and allows everyone three weeks to get used to the idea before the tracking surveillance begins. 

He also incorporates this process into his Work From Home policy, which each employee receives a copy of. This way, he is compliant with requirements under the Workplace Surveillance Act. 

Workplace Surveillance Policy

It’s good practice to have a Work From Home Policy to set out how the business will run remotely, but if you’re setting up surveillance, it’s worth having a separate Workplace Surveillance Policy.

Whether you are monitoring employees at a physical office or remotely, a Workplace Surveillance Policy is beneficial for ensuring all staff are on the same page about privacy laws and how surveillance maintains WHS obligations on the employer’s part. 

Put simply, this policy will ensure a transparent relationship between employees and employers. 

The policy should let employees know about what activity will be tracked, for how long and for what purpose as well as any other relevant information.

Key Takeaways

Installing workplace cameras and surveillance is legal, as long as you provide notice to employees following the requirements under the relevant legislation. You also want to make sure that these processes are made crystal clear in your workplace policies to avoid confusion and legal headaches. 

When it comes to data and privacy, our legal team is more than happy to walk you through the relevant legislation and provide advice on your best options for protecting your business. Reach out to us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.

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