Surveillance in the Workplace

In many businesses, the use of optical surveillance, including CCTV, is an important tool in monitoring and maintaining company security. However, generally, surveillance laws prevent any form of optical or sound surveillance, and recording, of private activities or areas where private activities are likely to be engaged in.

Every State and Territory has slightly nuanced differences as outlined below:

• • Victoria – all forms of known audiovisual and sound surveillance/recording is prohibited in all workplace toilets, washrooms, changerooms and lactation rooms.
  • New South Wales (Workplace Surveillance Act 2005 (NSW)) – prohibits the use of surveillance devices in workplace change rooms, toilet facilities and shower or bathing facilities.
  • Australian Capital Territory (Workplace Privacy Act 2011 (ACT)) – surveillance devices are prohibited in change rooms, toilet facilities and shower or bathing facilities, workplace parent or nursing rooms, prayer rooms, sick bays and first aid rooms.
  • Western Australia (WA), Queensland, South Australia (SA) and Northern Territory (NT) rely on general surveillance and/or privacy laws which generally prevent the installation, use or maintenance of optical surveillance to observe or record a ‘private activity’.

NSW and the ACT also have stringent notice requirements, including to inform employees of the type of surveillance being used in the workplace, how it will be used and the manner it will operate.

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Generally, across the States and Territories the covert recording of any conversations (whether it be in the workplace, or more broadly) is not permitted.

In Victoria, a person who is not a party to a conversation is not allowed to knowingly record it, unless they reasonably believe it is necessary for their legal interests.

Although in South Australia, Queensland, Western Australia, Tasmania, and the NT there is no specific legislation governing workplace surveillance, limitations are imposed by State/Territory surveillance and privacy laws more broadly in respect of the recording of conversations:

• South Australia (Surveillance Devices Act 2016 (SA)) – consent is required from all parties to record a private Unauthorised covert use of a device to listen or record a private conversation is an offence.
• Queensland (Invasion of Privacy Act 1971 (QLD)) – permits a person who is party to a conversation to record it, but imposes limitations as to how the recording can be used.
• Western Australia (Surveillance Devices Act 1998 (WA))- it is a criminal offence to make an audio recording of a private conversation without the consent of the parties involved. This applies to workplace conversations.
• Tasmania, NT and the ACT – generally consent of all parties is required to record a private conversation.

New South Wales law prohibits a private conversation from being recorded unless it is reasonably necessary to protect the lawful interests of the person making the recording (Surveillance Devices Act 2007 (NSW)).

Impact of audio recordings in the workplace

Even if the making of audio recordings is permitted in the workplace, case law has suggested that covert audio recordings are not looked upon favourably if relied on in any workplace dispute. This includes because of the unfair advantage gained by the person making the covert recording (they can change their tone, so the recording reflects more favourably on them); issues in respect of unwitting participants unknowingly breaching confidentiality; and the mere fact that the making of an unauthorised covert recording at work is likely to constitute misconduct.

In fact, courts and tribunals have observed that covertly recording a conversation at work can damage the employment relationship and ‘shatter’ any chance of re-building the trust and confidence an employer has in the employee. This is relevant in determining whether reinstatement is a viable option should an employee claim they were unfairly dismissed.

As a result, while the covert recording of conversations in the workplace is not always illegal, it is not always looked upon favourably by the courts and tribunals and may fracture the employment relationship.

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Generally, the known use of tracking devices in the workplace may be permitted subject to gaining express or implied consent.

In WA, SA, Victoria, NSW and NT – express or implied consent of the person being tracked, or operating the object being tracked, is required to knowingly use tracking devices to determine the geographical location the person and/or object (such as a company vehicle or machinery). Consent is only required if the person is lawfully in possession or lawfully in control of the object being tracked.

Arguably, implied consent could be gained from a person operating a vehicle that displays a notice on it that GPS tracking is installed.

In the ACT – surveillance of a worker that involves tracking of a vehicle/other thing is permitted as long as there is a clearly visible notice on the vehicle/thing stating that it is being tracked. The tracking notice requirement is subject to it being reasonably practicable to display the notice and the employer taking reasonable steps to notify worker/s of the tracking.

Queensland and Tasmania presently do not have laws preventing the tracking of vehicles.

For employers using tracking devices in company vehicles, it is important to consider whether the laws applying to them specifically prohibit the use of such surveillance when an employee is not at work. This is particularly relevant where an employee is provided a company vehicle that has tracking installed, which is used by the employee for personal use in addition to work purposes. The lawful ability of an employer to use tracking for the vehicle may be distinguished depending on whether the vehicle is solely used for work purposes or not.

Therefore, it is important for employers who knowingly install or use pre-installed tracking technologies in company vehicles, machinery or equipment, to comply with applicable laws in respect of the use of tracking devices.

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