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HARMERS WORKPLACE LAWYERS CLIENT ALERT, OCTOBER 2005
THE RULES FOR SURVEILLANCE OF EMPLOYEES AT WORK CHANGE IN NEW SOUTH WALES ON 7 OCTOBER 2005
The Workplace Surveillance Act 2005 (“Act”) will be operative in New South Wales from 7 October2005. The Act regulates the ability of an employer to conduct surveillance of its employees by way of camera, tracking devices or computer, including email and Internet use.
The Act replaces the Workplace Surveillance Act 1998, which prohibited video surveillance of employees unless the employer had satisfied certain notification requirements or had been authorised by a Magistrate.
The Act extends the coverage that previously existed, regulating three broadly defined forms of surveillance: camera surveillance, computer surveillance and tracking surveillance.
The principal obligation on employers is to be open about workplace surveillance. The Act does not completely prevent employers from conducting surveillance of employees, and there is no requirement that consent be obtained. The Act does require the employer to either notify its employees that such surveillance will be conducted, or seek authorisation from a Magistrate (for covert surveillance).
Notification to employees must contain details about:
- the kind of surveillance to be carried out (for example camera or tracking);
- how surveillance will be carried out;
- when surveillance will start;
- whether surveillance will be continuous or intermittent; and
- whether surveillance will be for a specified limited period or ongoing.
The Act also regulates the ability of an employer to block emails to or from an employee, as well as an employee’s access to Internet websites. An employer must notify employees of its policy in relation to blocking emails and Internet access.
A more detailed guide to the Act, including a discussion of the legislation in jurisdictions other than New South Wales can be found in the WorkInsights Winter 2005 edition, on the Harmers Workplace Lawyers website: harmers.com.au.
A checklist to assist is set out below.
A PRACTICAL CHECKLIST FOR COMPLIANCE
1. Have a written Policy on surveillance that clearly sets out that employees may be monitored at work, including:
- The method of surveillance (camera, computer or tracking device), where it will take place and the means (for example, random monitoring of inboxes/outboxes, examining logs of internet use, installation of cameras in certain areas, recording of keyboard input, etc).
- Who will be authorised to conduct surveillance (for example, IT staff, human resources and/or line managers).
- Whether surveillance is continuous or intermittent.
- Whether surveillance is for a specified limited period or ongoing (ongoing would preserve greatest flexibility).
- When and what email or Internet websites will be blocked (remembering that an email or website must not be blocked for the sole reason of being from a union or about industrial matters).
2. Ensure the Policy has been brought to the attention of all employees in such a way that it is reasonable to assume that employees are aware of and understand it. Ideally:
- At least 14 days before surveillance commences, distribute the Policy to each employee.
- Provide all employees with training on the Policy to ensure that they understand it; including any consequences of failure to comply (a small business may simply discuss the Policy with each individual employee).
- Provide employees with regular reminders about the Policy (for example, by “all staff” emails, by a “pop up” notice at every “log on” to the network; or via the staff noticeboard).
- Ensure all new employees are informed of the Policy before they commence work.
3. If you block emails (other than “spam”, emails which might damage the computer network, or menacing, harassing or offensive emails), ensure there is a system that provides employees with a “prevented delivery notice” each time an email sent to, or by, the employee is blocked.
4. If you have installed camera surveillance, ensure the camera (or its casing) is clearly visible and signs are posted at the entrance of the area under surveillance indicating that people may be subject to such surveillance in that area.
5. If you have installed GPS or other tracking devices in any vehicle or other thing used by your employees, ensure a notice is clearly visible on that vehicle or thing indicating that it is subject to tracking.
For further information, please contact Harmers Workplace Lawyers:
Sydney: MICHAEL HARMER Managing Partner
Tel: (02) 9267 4322
michael.harmer@harmers.com.au
Melbourne: CHRIS MOLNAR Partner
Tel: (03) 9612 2300
chris.molnar@harmers.com.au
Brisbane: JAMES YEATMAN Partner
Tel: (07) 3016 8000
james.yeatman@harmers.com.au
Disclaimer: The information and comments contained in this document are of a general nature only and should not be relied on in place of legal advice. |
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