Workplace Surveillance: An Employer’s Guide

Workplace surveillance can take many forms – from CCTV cameras, swipe cards and fingerprint scanners to monitoring of employee computer and mobile phone use, GPS tracking of company vehicles to systems that measure productivity of workers.

If you’re considering introducing workplace surveillance, you may be wondering: can I legally monitor my employees?

The short answer is potentially yes, but it’s not simply a matter of installing a camera and switching it on. At the basic level, employers need to consider why surveillance is necessary, what is being monitored, what employees need to know about the surveillance and which laws apply to their work location.

Key takeaways

• Workplace surveillance includes CCTV, computer monitoring, location tracking and other employee monitoring technology.
• There is no single set of workplace surveillance rules covering every Australian workplace.
• Employers should have a clear, legitimate business reason for monitoring employees.
• Notification, privacy and information security requirements need to be considered.
• A well-written Workplace Surveillance Policy helps employees understand what is monitored and how information is used.

Is workplace surveillance legal in Australia?

Workplace surveillance can be lawful, but the requirements depend on the circumstances, type of monitoring and the location in which your business operates.

The Privacy Act 1988 – the primary federal law in Australia that protects the privacy of individuals – does not specifically regulate workplace surveillance. Other privacy obligations may apply, and state and territory laws can impose additional requirements. Some jurisdictions have specific workplace surveillance legislation.

Before introducing surveillance, employers should consider:

• What will be monitored, and why?
• Where and when will monitoring occur?
• What must employees be told?
• How will information be stored and protected?
• Who will have access to it?

Getting the correct answers before surveillance begins goes a long way to avoiding HR and legal issues later.

What is workplace surveillance?

Workplace surveillance involves monitoring or collecting information about employees or their activities at work. Common examples include:

• CCTV and other camera monitoring in the workplace.
• Monitoring employee emails, internet use and computer activity.
• GPS or vehicle location tracking.
• Monitoring company-issued phones and devices.
• Software used to track attendance, quality control or productivity.

Technology makes it increasingly easy to monitor employees. But just because a business can monitor something doesn’t necessarily mean it should. The starting point should always revolve around a legitimate business reason.

CCTV at work: what should employers consider?

Closed-circuit television (“CCTV”) is a video surveillance system that uses cameras to transmit signals to a specific, private set of monitors or recording devices rather than broadcasting openly to the public. CCTV is typically used for workplace safety, security, protecting property, preventing theft or investigating incidents.

Legitimate business purposes for CCTV might include protecting employees and customers, safeguarding business assets or meeting specific operational or compliance requirements. Not such a legitimate purpose? “Because we want to keep an eye on employees”.

Before considering the installation of CCTV, consider:

Where will cameras be located? Focus on areas that genuinely need monitoring and avoid unnecessarily intrusive locations. An employer cannot have cameras in a change room, locker room, toilet, or shower facility.

Will employees know they are there? Employees should understand what is being monitored and why. Specific notification requirements may also apply.

Who can access the CCTV footage? Access should be limited to people with a legitimate business reason.

How will CCTV recordings be handled? Have a sensible and transparent approach to security, retention and deletion.

Could footage be used for another purpose? If cameras are installed for security, consider whether recordings might also be used to investigate employee conduct.

The more intrusive the surveillance, the more important it is to understand the applicable legal and HR requirements and communicate these clearly to employees.

What should employees be told about surveillance in the workplace?

Early and transparent communication with employees is key to minimising issues and allaying concerns when introducing workplace surveillance. Employees should understand what is being monitored, why monitoring is taking place, when it occurs and how the information may be used.

Specific notification requirements vary. New South Wales for example, has legislation requiring prior written notice for most workplace surveillance, generally at least 14 days before it begins.

Queensland’s approach to workplace surveillance differs. Rather than a dedicated legal code, a number of laws interact, including the Criminal Code 1899 (QLD), the Invasion of Privacy Act 1971 (QLD), Privacy Act 1988 (Cth.) and Office of the Australian Information Commissioner (OAIC) guidelines.

Different jurisdictions have different rules, so employers should check the obligations that apply to their business in their state (or states) of operation.

What about privacy?

Surveillance can generate personal information, so employers need to consider how personal records are accessed, stored and used.

As a practical starting point:

• Secure the information: protect recordings and monitoring data from unauthorised access.
• Limit access: allow only those who genuinely need the information to view it.
• Use information appropriately: consider whether using it for a new purpose is justified.
• Manage retention: don’t keep records indefinitely without a reason.

The exact legal obligations depend on the circumstances. Employers should not assume that all employee information is automatically covered by privacy law – or that it is automatically exempt.

Have a Workplace Surveillance Policy

A Workplace Surveillance Policy tailored to your business and types of surveillance to be used helps managers and employees understand the arrangements.

Your policy should clearly explain:

• why surveillance is used and what it involves
• which areas, systems or devices are monitored
• when monitoring occurs and what information is collected
• who can access the information and how it is protected
• how surveillance information may be used.

The policy must reflect what actually happens in your workplace. A generic document that describes one thing while the actual technology in place does another is unlikely to help when questions or concerns arise.

Having professionally developed HR documentation and workplace policies tailored to your business can help establish clear expectations, support compliance and reduce the risk of workplace disputes.

Before you switch it on

Before introducing CCTV, monitoring software or another surveillance system, ask yourself:

• Why do we need it?
• Is the monitoring appropriate for that purpose?
• What do employees need to be told?
• Which state or territory laws apply?
• How will information be accessed, stored and used?
• Does our Workplace Surveillance Policy reflect the proposed arrangements?

Unsure about the answers to these? Seeking advice from an experienced HR consultant before installing the technology can help you understand your obligations, identify potential risks and ensure the appropriate workplace policies are in place

Frequently asked questions

1. Can employers monitor employees in Australia?

Potentially, yes. Employers however need a legitimate business reason and must consider the applicable surveillance, notification and privacy requirements before proceeding.

2. Do employers have to tell employees about workplace surveillance?

Notification requirements depend on the type of monitoring and the jurisdiction. Employers should ensure employees understand what is monitored and why, and check whether formal notice is required.

3. Can CCTV footage be used in employee disciplinary action?

Potentially. Employers should consider whether surveillance was lawfully conducted, what employees were told about its use and whether using the footage is consistent with relevant company policy and applicable laws.

Workplace surveillance: the bottom line

Workplace surveillance is about more than simply putting cameras on the wall and hitting the “record” button. Employers need to consider the purpose of monitoring, the rights and expectations of employees, applicable legal requirements and how surveillance information will be handled.

A well-drafted Workplace Surveillance Policy, supported by clear communication with employees, can help employers meet their obligations, establish appropriate monitoring practices and reduce the risk of workplace disputes or legal complications.

How Bare Bones Consulting makes things easier for you

If you’re considering CCTV, computer monitoring or another form of workplace surveillance, Bare Bones Consulting can help you work through the HR, policy and employee communication issues before you switch it on. We’re all about preventing HR issues before they occur. And that’s a simpler and smarter approach that benefits you. Why not give us a call or contact us here.

Disclaimer: This article provides general information only and is not legal advice. Workplace surveillance laws vary between Australian states and territories and depend on the circumstances. Employers should obtain appropriate advice before introducing workplace surveillance.