Workplace Surveillance – the position as at November 2021

Many of us will be familiar with the sight of speed cameras, red-light cameras and Safe-T-Cams on roads, ‘street safety cameras’ in urban settings, and CCTV cameras monitoring home security. What of the use of surveillance cameras in the workplace? Can an employer simply proceed to install a security system which monitors their workplace, perhaps continuously?

The Workplace Surveillance Act 2005 (NSW)  

The Workplace Surveillance Act 2005 (NSW) (the ‘2005 Act’) prohibits employer surveillance of employees at work unless the employees have been given prior notice. Surveillance as defined in the 2005 Act includes that by camera, computer, and / or tracking surveillance. Notice in writing must be given to employees at least 14 days before the surveillance commences (unless a lesser period is agreed), and must include various details such as the type of surveillance, how it will be carried out, and when it will commence. This notice can be given by email.

Where notice has been given, other requirements for implementation of surveillance include –

• Cameras must be clearly visible in the place where the surveillance is taking place
• Signage notifying people that they may be under camera surveillance in that place must be clearly visible at the entrance to that place
• Computer surveillance will be carried out in accordance with a policy of the employer which has been notified to the employees in such a way as is reasonable to assume employee awareness and understanding of that policy
• Tracking surveillance of a vehicle or other thing is subject to a clearly visible sign indicating tracking surveillance being present on that vehicle or other thing

Prohibitions under the 2005 Act include –

• Any employer surveillance in a change room, toilet or shower / bathing facility at a workplace
• Surveillance of an employee not at work (unless computer surveillance in some circumstances)

Restrictions also apply under the 2005 Act regarding –

• the blocking of emails or internet access
• the use and disclosure of surveillance records

Where an employer has grounds for suspecting that an employee is engaging in unlawful activity at work and wishes to undertake covert surveillance, an application for an authority authorising covert surveillance must first be made and approved. Various conditions apply when covert surveillance is approved. A covert surveillance authority does not authorise covert surveillance for the purpose of monitoring employee work performance.

Please contact Bridgeford & Associates– Lawyers if you would like to discuss any workplace surveillance issues you may have.

N.B.  The above points are not exhaustive, are general in nature, and do not necessarily reflect all recent developments. They are not a substitute for professional advice. Bridgeford & Associates – Lawyers can assist clients seeking specialized legal advice in Employment law – please feel free to contact us.