Surveillance in the workplace

Surveillance of employees is becoming increasingly prevalent in many workplaces, with the assistance of advances in technology. And many people find it surprising that in Australia, there is no general right to privacy. Instead, privacy is regulated by a complicated web of Federal, state and territory laws, meaning that whether or not employers are allowed to monitor you, and to what end, is not always clear.                                    

Optical Surveillance

A friend recently advised me that her employer had set up video surveillance in all communal areas of their office. Her manager had a number of television screens in his office and was literally able to see almost every move his employees made. She works in a small office for a company that manufactures apparel – hardly top secret stuff. Unfortunately, although it’s unsettling, this conduct is probably not unlawful.

According to Victorian law, it is an offence to use an optical surveillance device to record or observe a private activity without the expressed or implied consent of the parties being monitored. ‘A private activity’ is one that is carried out in circumstances that may reasonably be taken to indicate that the parties only want it to observed by themselves.

Employers in Victoria are also prohibited from using listening or optical devices in workplace toilets, bathrooms, change rooms and lactation rooms. This means is that employers are allowed to monitor employees in general office spaces, but have to afford privacy when the employees are using the bathroom. Employers who breach these prohibitions could face fines or even imprisonment.

In 2008 the owner of a Victorian hotel was fined after he installed a camera in a staff change room.[1] The change room had lockers as well as a shower, toilet and hand basin. The employer claimed that he installed the device to test it. A Victorian Magistrate convicted the employer of knowingly installing, using or maintaining an optical surveillance device to record a private activity without the consent of the party. This decision was upheld by the Victorian Supreme Court on appeal.

Audio recordings

In Victoria, the Surveillance Devices Act 1999 (VIC) (SD Act) applies to the use of cameras, listening and tracking devices and data surveillance. It is an offence to use or install a listening device to record or listen to a private conversation to which you are not a party. In some circumstances, cameras that record audio will breach the Act because of the audio they record, and not because of the images that they record.

I’ve had some employees come and see me after recording disciplinary conversations they have had with their employers. Whist it may not be unlawful to record these conversations (depending on how the recording is made), I would never recommend it – take detailed notes instead that you can rely on as evidence.

Depending on what is recorded, the recording could also breach confidentiality obligations in your contract of employment. Additionally, it is open for an employer to say that they don’t trust an employee who has covertly recorded discussions. Trust is an integral part of an employment relationship, and an employer could dismiss an employee on grounds that they don’t trust them. Whether or not termination of employment is warranted will depend on the circumstances.

Recording phone calls

The Federal Telecommunications (Interception and Access) Act 1979 (Cth) makes it an offence to listen into telephone calls, or record phone calls through the telecommunications network. This means that, subject to some limited exceptions,  intercepting phone calls is unlawful, as is recording a telephone conversation, even if you are a party to it.

Tracking Devices

In Victoria, the SD Act regulates the use of location tracking devices such as using a GPS. Express or implied consent is required to install, use or maintain a tracking device to determine the location of a person. This also extends to tracking devices on vehicles – they can only be installed with the agreement of the person in control of the vehicle.

Conclusion

The laws regulating workplace surveillance are complex and generally vary depending on what state or territory you’re in. But one thing is certain: employees should be mindful that they may be being monitored, and seek legal advice if you think your privacy is being violated.

[1] Brown v Palmer (2008) 192 A Crim R 18; [2008] VSC 335; BC200807762

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Emily Lupo

Maurice Blackburn Melbourne
Emily Creak is an employment and industrial Associate, practising in Maurice Blackburn’s Melbourne office. Emily is a member of the only first tier law practice listed by the prestigious Doyles Guide 2017 for employee representation. Emily assists employees and executives in the full range ...

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