WORKPLACE SURVEILLANCE

Author: Valentina Misevska

Publish Date: September 16, 2004

The New South Wales Government has released an exposure draft of the Workplace Surveillance Bill 2004 (NSW). 

Objectives

Broadly the objectives of the bill are to:

• prohibit camera, computer and tracking surveillance by employers of their employees at work except by notified surveillance or authorised covert surveillance; and
• restrict and regulate the blocking by employers of e-mail and Internet access of employees at work.

Notified Surveillance

Generally, surveillance is notified surveillance if:

• the employee has been given written notice of the intended surveillance at least 14 days (or less as agreed by the employee) before the intended surveillance;
• in the case of camera surveillance, the cameras are clearly visible and there are signs notifying people that they may be under surveillance;
• in the case of computer surveillance, the employee is given notice in advance of the surveillance and of the nature of the surveillance (by means of a written notice clearly visible in the vicinity of the computer, or audible announcement or written notice when the employee logs onto the computer or starts a program the subject of the surveillance);
• in the case of tracking surveillance, the employee is given notice in advance of the surveillance by means of a notice clearly visible on the vehicle or thing being tracked.

Covert Surveillance

Generally, covert surveillance is surveillance that is not notified surveillance. Covert surveillance is prohibited unless it is authorised by a Magistrate and is carried out solely for establishing whether or not an employee is involved in an unlawful activity at work. Covert surveillance must be carried out in accordance with the relevant authority. 

E-mail and Internet Blocking

The bill prohibits the blocking of emails sent to or by an employee and website access by an employee unless the employer is acting in accordance with the employer's email and internet access policy which has been notified to the employee in writing prior to any such blocking.  If any email is blocked, employees must be immediately notified that an email has been blocked unless the email is spam, menacing or offensive. An employer's email and internet access policy must not authorise blocking of emails or websites merely because the content of those emails or websites relates to industrial matters (such as stop-work meetings).

Conclusion

This bill if enacted in its current format will have wide reaching ramifications for employers.  It will require them to identify who are their employees and effectively incorporate workplace policies such as email, internet and surveillance policies into such persons contracts and then ensure they act in accordance with those policies.  There is also a real likelihood that many employers will need to monitor their computer systems to comply with the notice requirements set out in the bill.

We will monitor the progress of this draft legislation so that we can quickly assist our employer clients to formulate strategies and policies to deal effectively with the new laws.

Copyright ©2007 Harris Wheeler Lawyers