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Focus: Workplace Surveillance Act – September 2005

NSW workplace surveillance legislation

In brief: The NSW Workplace Surveillance Act 2005 comes into effect on 7 October 2005. Partner Peter Jones(view CV) outlines the Act's main features.

As previously reported in AAR's Focus: Workplace Relations, the NSW Government first issued an exposure draft of the Workplace Surveillance Bill in June 2004. The Bill was passed in June 2005.

The new Act regulates camera, computer and tracking surveillance (which is surveillance by means of electronic devices that monitor geographical location, such as a global positioning system) in the workplace. The Act regulates both covert and overt surveillance.

Overt surveillance

Overt surveillance can only occur if an employee has been given notice of the surveillance. At least 14 days prior notice is required, unless the employee agrees to a shorter period. For new employees, notification must be given before they start work.

The notice must indicate the kind of surveillance to be carried out (camera, computer or tracking), how the surveillance will be carried out, when the surveillance will start, whether the surveillance will be continuous or intermittent, and whether the surveillance will be for a specified limited period or ongoing.

For employers who currently carry out surveillance and wish to continue to do so when the Act comes into effect, 23 September is the last day to give this notice. 

Camera surveillance requires that cameras are clearly visible in the place where the surveillance is taking place, and signs notifying people that they may be under surveillance in that place are clearly visible at each entrance.

Computer surveillance must only be carried out in accordance with a workplace policy of which the employee has been given advance notice. Employers should check their policies to ensure they meet the Act's requirements.

Tracking surveillance must not be carried out unless there is a notice clearly visible on the vehicle indicating that it is the subject of tracking surveillance.

There is an exception in circumstances where the employee has agreed to the carrying out of surveillance for a purpose other than surveillance of employees. This situation would cover, for example, security cameras that are placed in the lobby or lifts of workplaces; however, employers will have to gain employee or union consent to the surveillance.

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Covert surveillance

Covert surveillance is unlawful except where the employer has gained a 'covert surveillance authority'.

These are obtainable from a magistrate and are issued for the purpose of establishing whether one or more particular employees are involved in unlawful activity while at work. A magistrate must not grant a covert surveillance authority unless they are satisfied that reasonable grounds exist to justify its issue. Both the seriousness of the perceived unlawful activity and the private or public nature of the area to be under surveillance are considerations.

An application for a covert surveillance authority must include a variety of information, including the grounds for suspecting the employee/s of unlawful activity. The authority lasts for a maximum of 30 days, and surveillance records that are not required for evidentiary purposes must be destroyed within three months.

When a magistrate issues a covert surveillance authority, he or she also designates a surveillance supervisor to oversee the conduct of the operation and take custody of the surveillance material. The surveillance supervisor can only release to the employer those portions of the surveillance records that are relevant to establishing the involvement of any employee in an unlawful activity at work.

It is a defence to a prosecution for unlawful covert surveillance where the surveillance was carried out for security purposes, where there was a real and significant likelihood of the security of the workplace or persons in it being jeopardised if covert surveillance was not carried out and notice was given to the employees.

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Specific prohibitions

Employers should note that there is specific prohibition against surveillance of employees in change rooms, bathrooms or toilets. There is also a prohibition on using a work surveillance device on an employee while he or she is not at work.

Finally, an employer must not prevent delivery to, or sending of emails by, or access to websites by employees unless in doing so the employer is acting in accordance with a workplace policy on email and Internet access that has been notified in advance to the employee, and the employee is given a notice as soon as practicable by the employer where emails are not delivered. No notice need be given where emails are blocked because they are spam, or contain viruses or menacing, harassing or offensive material. Employers are unable to block the use of websites belonging to, or emails from, industrial organisations.

Employers should check their policies to ensure they meet the Act's requirements. 

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For further information, please contact:

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