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Privacy and Surveillance in the Workplace (Victoria)

Privacy and Surveillance in the Workplace (Victoria)


by Joanna Betteridge, Maddocks'

Released February 2003

INTRODUCTION

The issue of workplace surveillance, and its associated legal and industrial ramifications, has gained prominence over the last few years.   Workplace surveillance may take many forms.  Telephone conversations and email communications may be monitored.  Drug testing and DNA testing may be considered to be surveillance.  For the purposes of this paper, the discussion regarding workplace surveillance will be limited to the most obvious form of surveillance – that of video monitoring.

In the age of Big Brother, reality TV, on line exhibitionists and press coverage regarding the frequent investigative surveillance of WorkCover and transport accident claimants, our society is becoming much more aware of the everyday possibility of electronic surveillance.  Public opinion, however, does not welcome the idea of covert surveillance in either the home or the workplace.   It is therefore not surprising that commentators, academics and civil libertarians have drawn parallels between the totalitarian monitoring of George Orwell's 1984 and the increasing propensity of employers to resort to electronic surveillance.1

It is clear when looking at this issue that the interests of employees and employers need to be balanced in the use of surveillance in the workplace.   In its 1995 report on the use of video surveillance in the workplace, the (then) Privacy Commission of NSW stated:

Employers use video surveillance to protect property, staff and business interests. Video surveillance is one of several monitoring and surveillance technologies used in modern workplaces. Employees are concerned that the use of video surveillance raises issues of privacy, dignity, working conditions, discrimination, and control over employees2.

Parliamentary debate during the Surveillance Devices Bill indicated that improvement to privacy protection was a key motivator to the introduction of the new surveillance laws.  On 11 May 1999, Ron Bowden stated in Parliament:

This is an extremely important development in the protection of both privacy and civil liberties of Victorian citizens3.

On 5 March 2002, the Attorney-General in Victoria launched the Victorian Law Reform Commission's reference into workplace privacy and surveillance. The Commission is to examine, report and make recommendations on legislative or other reforms in relation to workers' privacy and surveillance in public places. After the launch, the Attorney-General expanded the terms to include an inquiry into the need, if any, for controls over the taking and production of photographs in the context of current and emerging methods of surveillance4.

The terms of reference of the inquiry are as follows:

In light of the widespread use of surveillance and other privacy-invasive technologies in workplaces and places of public resort, and the potential benefits and risks posed by these technologies, the Victorian Law Reform Commission will inquire into and report progressively upon

a) whether legislative or other reforms should be made to ensure that workers' privacy, including that of employees, independent contractors, outworkers and volunteers, is appropriately protected in Victoria. In the course of this inquiry, the Commission should consider activities such as:

  • surveillance and monitoring of workers' communications;

  • surveillance of workers by current and emerging technologies, including the use of video & audio devices on the employers' premises or in other places;

  • physical and psychological testing of workers, including drug and alcohol testing, medical testing and honesty testing;

  • searching of workers and their possessions;

  • collecting, using or disclosing personal information in workers' records.

b) whether legislative or other measures are necessary to ensure that there is appropriate control of surveillance, including current and emerging methods of surveillance, and the publication of photographs without the subject's consent. As part of this examination, the Commission should consider whether any regulatory models proposed by the Commission in relation to surveillance of workers, could be applied in other surveillance contexts, such as surveillance in places of public resort, to provide for a uniform approach to the regulation of surveillance.

In undertaking this reference, the Commission should have regard to:

  • the interests of employers and other users of surveillance, including their interest in protecting property and assets, complying with laws and regulations, ensuring productivity and providing safe and secure places;

  • the protection of the privacy, autonomy and dignity of workers and other individuals;

  • the interaction between State and Commonwealth laws, and the jurisdictional limits imposed on the Victorian Parliament;

  • the desirability of building on the work of other law reform bodies. 5

It will be very interesting to watch for legislative developments which may arise due to the results of this inquiry.

WORKPLACE SURVEILLANCE - A DEFINITION

In Victoria, the legislation governing workplace surveillance is the Surveillance Devices Act 1999 (Act).  This Act repeals the Listening Devices Act 1969.

Section 3 of the Act defines the following relevant terms:

  • surveillance device means a data surveillance device, a listening device, an optical surveillance device or a tracking device.

  • data surveillance device means any device capable of being used to record or monitor the input of information into or the output of information from a computer, but does not include an optical surveillance device;

  • device includes instrument, apparatus and equipment;

  • listening device means any device capable of being used to overhear, record, monitor or listen to a private conversation or words spoken to or by any person in private conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear;

  • optical surveillance device means any device capable of being used to record visually or observe a private activity, but does not include spectacles, contact lenses or a similar device used by a person with impaired sight to overcome that impairment;

  • tracking device means an electronic device the primary purpose of which is to determine the geographical location of a person or an object.

For the purpose of this paper, the term workplace surveillance (or electronic workplace surveillance) will be used to refer to a private employer's use of optical devices in the workplace for the purpose of monitoring and/or controlling its employees.

THE LEGISLATIVE REGIME

Surveillance Devices Act 1999

The purposes of the Act include —

  • to regulate the installation, use and maintenance of surveillance devices;

  • to restrict the communication and publication of records of private conversations and activities obtained through the use of surveillance devices;

  • to establish procedures for law enforcement officers to obtain warrants or emergency authorisations for the installation and use of surveillance devices;

  • to create offences relating to the improper installation or use of surveillance devices; and

  • to impose requirements for the secure storage and destruction of records obtained by law enforcement officers through the use of surveillance devices.

The Act covers not only video surveillance, but also regulates listening devices, tracking devices and data surveillance devices.  Telephone interception is also covered by the Federal Telecommunications (Interception) Act 1979.

Sections 6 to 9 of the Act make it an offence for an employer to knowingly install, use or maintain a listening, optical, tracking or data surveillance device to conduct electronic surveillance of a 'private activity' to which the employer is not a party without 'the express or implied consent of each party to the activity'.

Private activity is defined in the Act to mean an activity carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be observed only by themselves, but does not include –

  • an activity carried on outside a building or

  • an activity carried on in any circumstances in which the parties to it ought reasonably to expect that it may be observed by someone else6.

The Explanatory Memorandum states:

Circumstances in which the parties to an activity ought reasonably expect that they may be observed by someone else include:

  • activities in places accessible to the public;

  • activities in those parts of the workplace accessible to other employees or invitees of that workplace;

Circumstances in which parties to an activity may reasonably expect that they may not be observed by someone else include:

  • activities in toilet cubicles and shower areas;

  • activities in change rooms; and

  • activities in those parts of workplaces where the parties to the activity may exclude others from observing the activity, such as in an office with covered windows.

Subject to the qualifications related to private activities, the Act does not restrict the right of employers to conduct surveillance in public areas. 

There are limited exceptions to the 'private activity' prohibition.   These include:

  • surveillance is conducted with the implied or express consent of one party to the conversation exempt (see, for example, section 7(1));

  • surveillance is permitted if installation, use or maintenance is in accordance with a warrant or an emergency authorisation (see for, example, section 7(2)(a)).

If an employer was concerned at some illegal action taking place on their premises, section 7(2) also allows for the installation, use or maintenance of an optical surveillance device by a law enforcement officer if an occupier of the premise authorises that installation, use or maintenance and the installation, use or maintenance is reasonably necessary for the protection of any person's 'lawful interests'.  Under this section, 'lawful interests' will arguably include the interests of a business in protecting its revenue and property. 

It has been suggested that in order to avoid any debate about whether surveillance is lawful in the circumstances, employers should ensure that employees and the public have been notified that they may be videotaped7.  Such notification can be achieved by:

  • telling employees and the public what will be monitored;

  • posting signs advising that activities are being monitored;

  • incorporating provisions about surveillance into contracts of employment; and

  • implementing supporting policies and procedures.

With either express or implied consent, of course, an employer may also use surveillance to monitor 'private activities'.  This would still have limitations for employers.  It would be difficult to conceive of a situation where everyday surveillance monitoring of toilet or change room facilities would be acceptable except perhaps in extreme circumstances where there was, for example, knowledge or real suspicion that drug deals were taking place in toilet or change room areas. 

The Act allows surveillance of what might otherwise be called private activities if they occur outside a building.  There may well be parts of an employer's premises which are outside of a building including, for example, areas where smokers congregate.  Likewise, the working areas inside a building where a number of members of staff work are areas where people might reasonably be expected to be observed by someone else and accordingly they would also fall outside the definition of private activity areas.

Penalties under the Act

The penalties for breaching the optical surveillance provisions of the Act are considerable.  Breaches of section 7 of the Act, knowingly installing, using or maintaining an optical surveillance device to record visually or observe a private activity to which the person is not a party and where there is no consent result in penalties of up to 2 years imprisonment or a $24,000 fine for an individual or a fine of $100,000 fine for a corporation on a first offence and a $200,000 fine on a second or subsequent offence.

Section 11 prohibits the communication or publication of records or reports of private conversations or private activities recorded by an optical surveillance device with similar penalties to those imposed under section 6.  The prohibition does not apply where there is consent or where the communication or publication:

  • is reasonably necessary for the public interest or

  • is reasonably necessary for the protection of lawful interests of the person making it or

  • is in the course of legal proceedings or disciplinary proceedings or

  • is made by a law enforcement officer to various persons or in various circumstances or

  • is made to a police officer by a person authorised to do so or

  • is authorised by a commonwealth law relating to national security.

It is also an offence to interfere with a surveillance device that has been lawfully installed on a premises. 8

If a body corporate is guilty of an offence under this Act, a person who is “concerned in, or takes part in, the management of the body corporate is also guilty of that offence and liable to the penalty for it.” 9  An individual may be proceeded against under the Act even though the body corporate has not been proceeded against.  The only defence open to management under the Act is that they must prove that the offence was committed without their consent or knowledge and that they exercised due diligence to prevent the commission of the offence.

RELATIONSHIP BETWEEN WORKPLACE SURVEILLANCE AND EMPLOYMENT LAW

The issue of consent in relation to workplace surveillance of what otherwise might be called private activities can essentially be controlled by what is expressly contained in an employee's contract of employment and incorporated by reason of the employer's policies and protocols.

The issue of surveillance may also become a pertinent issue in enterprise bargaining agreements particularly in circumstances where employers have utilised surveillance in the workplace.

In exploring the relationship between electronic workplace surveillance and the “fundamental norms of employment law 10, Sempill argues that electronic surveillance is a tool that reinforces the employer’s power in the employment relationship by giving the employer an additional opportunity to enforce obedience to the employer’s directions and by providing a means to gain objective evidence of behaviours which might be used to justify dismissal, particularly summary dismissal of employees.  However, argues Sempill, this additional power assumed by employers in using this technology in the workplace, may be tempered by the increasingly accepted common law duty of trust and confidence which is implied into all employment relationships. 11

Also implied into all employment contracts is the general duty of all employees to obey the employer's lawful and reasonable directions.  Sempill argues that the use of electronic surveillance might well be considered to be simply another example of the employers already considerable powers over its employees12.  In making this argument, he notes that Courts have demonstrated a considerable preparedness to uphold and extend 'managerial prerogative'.  Sempill provides examples of cases where the Court has upheld the power of employers to exercise authority in relation to matters which are beyond the employee's core tasks, or outside their working hours (arguably at the expense of employee privacy):

  • In Australian Telecommunications v Hart (1982) 43 ALR 165 the Court held that the employer was entitled to forbid an employee to arrive at work in a caftan and thongs and to fine him when he persistently refused to change his ways;

  • In Wall v Westcott (1982) 1 IR 45 the Court ruled that the employee had engaged in conduct justifying dismissal by having a sexual relationship with his employer's wife as an act of revenge against the employer;

Other examples include:

  • In McManus v Scott-Charlton (1996) 140 ALR 625 the Court held that it was within the scope of the employer's power to exercise control over the employee's conduct outside his course of employment and physical confines of the workplace in this instance as it was considered to be within the scope of the employer's legitimate interests.  In this case the employee was said to be sexually harassing a female co-worker outside of the workplace.  The Court held that while the employee's conduct may not have been engaged in "in connection with" his employment, it could still properly be said to have a relationship to – to be attributable to – that employment.  This linkage, the court said, properly allowed the harassment to be characterised as employment related.  The Court held that once an employee's conduct can be shown to have significant and adverse effects in the workplace (ie. impact on workplace relations, productivity and the effective conduct of the employer's business) that conduct becomes a proper matter of legitimate concern to an employer and does so because if its consequences.

  • The Court accepted the view that it is the common law obligation of an employee to obey the lawful and reasonable commands or directions of the employer (Australian Telecommunications v Hart).  The Court held that the "standard or test" of the lawfulness of a command or direction is that enunciated by Dixon J in R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621-622:

If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at the common law upon its being reasonable.  In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.

The McManus case is useful for ascertaining some general principles for determining whether the direction of an employer is lawful and reasonable:

  • The direction does not have to be related to, or have a nexus with, the performance of work-related duties;

  • There must be a lawful justification for the direction;

  • the conduct for which the command relates must be attributable to, has a relationship to or be a consequence of the employment;

  • the conduct for which the command relates must have significant adverse effect on the workplace;

  • the command must be proportionate to the effect the conduct is having on the workplace.

  • In Rose v Telstra (unreported, AIRC, Vice President Ross, 4 December 1998) Rose, a Telstra employee, had an altercation with a fellow colleague while they were on a work assignment in Armidale, NSW.  The altercation occurred outside of work hours and neither employee was in uniform. Rose's employment was terminated as a result.  Vice President Ross observed that the shift in the nature of the employment relationship had implications for an employer's capacity to discipline an employee in respect of out of work conduct.   He stated that the "modern law of employment has its basis on contract and an employee's behaviour outside of working hours will only have an impact on their employment to the extent that it can be said to breach an express or implied term of his or her contract of employment".  Vice President Ross concluded that out of hours conduct may result in adverse consequences for a person's employment in limited circumstances:

  • the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or

  • the conduct damages the employer's interests; or

  • the conduct is incompatible with the employee's duty as an employee.

Vice President Ross held that unlike the facts of McManus v Scott-Charlton, where the lawfulness of the direction given by the employer was dependent on the fact that the employee's out of work conduct had a demonstrated, substantial and adverse effect on the employer's business, Mr Rose's conduct on the night in question lacked the requisite connection to his employment and therefore did not provide a valid reason for his termination.  In this case neither Mr Rose nor his fellow colleague were in uniform, on call, or in a public place when the incident took place.  On this basis, Ross VP held that there was no evidence to support the claim that it had tarnished the public perception of Telstra.

Ross VP summarised the circumstances when an employee's out of hours conduct may result in adverse consequences for a person's employment: 

in essence the conduct complained of must be such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.

  • In R v Railways Appeal Board; Ex parte Haran [1969] WAR 13, the Full Court of the Supreme Court of Western Australia held that an employer has the power to dismiss an employee for misconduct when 'off-duty'.  In this case Haran was employed by the Railways Commission as a porter at Perth Station.  In May 1967 he struck a fellow employee at the station while on-duty and was fined $10 by the Commission in addition to being served with a formal warning.  On 2 December 1969, Haran returned to the station while off-duty and assaulted the assistant station master and another officer.  In the judgement Wolff CJ observed that the offence which Mr Haran was convicted of "vitally affects the management and conduct of the railways".

  • In Orr v The University of Tasmania (1957) 100 CLR 526 the Court held that the respondent was entitled to terminate the employment of a professor who had an affair with one of his students on the basis that his conduct had rendered him unfit to perform his duties.  The Court found that the fact that Professor Orr was engaging in a sexual relationship with one of his students made it impossible for him to dispassionately carry out his duties of examining and presenting candidates for their degrees.

The cases referred to above illustrate that the courts are willing to look beyond the confines of the employment relationship contained by normal working hours in the normal workplace.  The employment relationship itself is found to have a more pervasive impact on the lives of those who enter into it.  Once an employee has agreed to employment with an employer, even that employee’s behaviour away from the workplace will impact on the employment relationship provided there is a sufficient nexus between the two.  

As Sempill argues, however, the employer also has widespread obligations towards employees which may impact on its use of workplace surveillance.  Sempill states:

…it is well settled in England that there is an implied term in all contracts of employment to the effect that the employer will not ‘without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee’13 

It is generally accepted that this duty is also recognised by Australian courts. 14  Sempill argues that the doctrine, however, would probably be limited to reprehensible behaviour on the part of the employer in using electronic surveillance, for example, to monitor changerooms where employees might otherwise expect a high degree of privacy. 15

There are undoubtedly a number of very legitimate reasons for the use of electronic surveillance in the work environment.

TACKLING FRAUD AND SERIOUS MISCONDUCT

The costs of tackling ever increasing fraud committed against businesses by employees in Australia is a matter of ever growing concern.  In a study undertaken in 1992 by the Australian Institute of Criminology in Canberra, the costs to business of internal fraud (in 1992 figures) was put at $631 million annually.   The cost to businesses of employee fraud has doubtless increased significantly since that survey was undertaken.

Prevention – the use of effective internal policies and procedures

Employee theft is committed where an employee has both the motivation to steal from his or her employer and also the opportunity to do so.  It is one of many business risks that all businesses large or small are confronted with and, like other risks, can seldom be completely eliminated.  It can, however, be managed to minimise potential loss and any legal consequences that may flow from the actions of business proprietors and staff detecting fraudulent conduct and taking action in relation to it.

There are four stages at which measures for the control of fraud may be implemented.  They are:

  • prevention;

  • detection;

  • investigation;  and

  • punishment.

It is generally accepted that a policy focusing on prevention is likely to be most effective, therefore it is crucial that policies and systems should be in place to minimise employee motivation and opportunity to commit fraud. 

The issues relevant to workplace surveillance will be discussed.

Recruitment policies

Where it is anticipated that there will be workplace surveillance, particularly in the retail and banking industries, recruitment should include a specific consent in relation to workplace surveillance in areas where there may be private activity which is nonetheless reasonable to monitor (such as work in a cashiers area).

Surveillance will not be intrusive or stressful if all staff who are required to handle cash or record credit transactions are familiar with the standard operating procedures and policies of the business in relation to the handling of cash, operation of the tills, and use of credit facilities.  Lack of understanding of cash handling procedures and credit policies is the most frequent excuse given by employees suspected of theft at work.

All staff should be made aware of the businesses' attitude to fraud and its consequences and the possibility of surveillance.  This should be covered by announcements, notices and intranet references as well as being addressed in the contract of employment or letter of offer/appointment.  At the time they are employed, all employees should be made aware that failure to follow the organisation's policies in relation to the handling of cash and credit transactions is an extremely serious matter which may result in their dismissal if breached.

All employers should attempt to instil into the culture of the organisation standards of ethical behaviour which will encourage staff to report fraudulent activities by other members of staff.  The use of video surveillance may have the effect of staff abdicating responsibility for monitoring the honesty of other staff.

Use of Surveillance

It is not unusual for businesses in the retail industry to use surveillance cameras on a retail floor space as a means of detection of shoplifting activity.  Security cameras can also be used to monitor the activities of employees working in these areas.

A customer in a retail premises can reasonably expect that their activities will be observed by others and so surveillance cameras can be legitimately used by businesses for this purpose.

Where security cameras are installed in a retail premises, the employer should make each employee aware of their existence and location.  If, in the full knowledge of the existence of surveillance equipment, the employee continues to attend at work and perform their job, their consent to the filming of any activity, including private activities, in the workplace is either express, or at the very least, may be implied from their attendance.  They have continued to work in the full knowledge that their activity at work will be filmed by their employer. 

Covert or secret surveillance of employees

The secret use of surveillance equipment to monitor the conduct of staff is a more complex legal issue.  If fraudulent activity is committed on the business premises, it is probably reasonable to expect that the activity may be observed by someone else and as such it would be exempt from the prohibition contained in section 7(1) of the Act.  However, in a small business where there may only be one employee on the premises, if he or she were to move out of the general retail floor space and into a private area on another part of the premises, it may be that the exemption does not apply as they could genuinely expect that no one would be able to observe their activity.

As previously noted, section 7(2) of the Act permits the use of covert or secret surveillance cameras which have been installed by a member of the police force or other law enforcement officer in the performance of his or her duty on premises if:

  • the occupier of the premises, that is, the owner of the business, authorises that installation and use;  and

  • the installation, use or maintenance is reasonably necessary for the protection of any person's lawful interests.

The "lawful interests" being protected are the interests of the business in protecting its revenue and property.

Where an employer suspects an employee of fraud and the use of secret surveillance cameras may assist in obtaining incriminating evidence, the assistance of the police should be sought .  There are penalties including fines and possibly imprisonment for breaches of the Act.

Policy on Covert Surveillance

It has recent been publicised that in South Australia, Charles Stuart Council has introduced a new policy on covert surveillance of its workforce. 16  The policy is targeted at employees suspected of gross misconduct.

The policy differentiates between two modes of surveillance.  It relates to covert surveillance being video footage taken by private investigators or recorded on hidden cameras rather than video footage taken by closed circuit TV cameras.  The Council have stated that the policy aims to strike a balance between the rights of the workforce and the rights of the community.  Covert surveillance of those suspected of gross misconduct can only be authorised by those at the top level in the organisation and an annual report on the use of covert surveillance will be provided to the Council’s elected members.

Three council workers have already been dismissed for gross misconduct following evidence recorded on video surveillance.  The Council has publicised the policy as it wishes employees to know that they might be subject to covert surveillance if they are suspected of gross misconduct.  It was felt that this would act as a deterrent and that it was an honest move on the part of the employer to advise the workforce of this possibility.

It might well be argued also that the creation of a policy of covert surveillance and the dissemination of this information to employees might be argued to constitute implied consent to the filming of private activities if this were to become an issue in any workplace investigation. 

A useful tool in putting together any such policy is to look at the Commonwealth Administration Guidelines.

Principles from the Covert Surveillance in Commonwealth Administration Guidelines

In 1992, the Human Rights and Equal Opportunity Commission (HREOC) published a set of guidelines on the issue of covert surveillance in Commonwealth administration.  The document specifically contemplated the use of covert surveillance in business premises.

Covert surveillance in defined in this document as:

the secretive, continuous or periodic observation of persons, vehicles, places or objects to obtain information concerning the activities of individuals which is then recorded in material form including notes and photographs.

HREOC provides a set of guidelines that are intended to provide a framework for agencies when developing their own detailed guidelines taking into account their role, their priorities and other operational factors when conducting covert surveillance:

  • The decision to conduct covert surveillance should be made at a senior level (guideline 1.3);

  • There should be reasonable suspicion to believe that on offence or an unlawful activity is about to be committed, is being committed or has been committed (1.4);

  • other forms of investigation should have been considered and have been found to be inconclusive or unsuitable (1.4);

  • the benefits arising from obtaining relevant information by covert surveillance are considered to outweigh to a substantial degree the intrusion on the privacy of the surveillance subject/s (1.4);

  • the collection of personal information using a covert surveillance operation should be conducted in a lawful manner (arguably in accordance with the relevant Privacy Principles and relevant state legislation) (2.1);

  • the collection should not involve entrapment of the surveillance subject (2.2);

  • agencies should avoid any actions which may unreasonably impinge on the privacy and rights of other people (2.3); and

  • only material relevant to the purpose of conducting the covert surveillance should be collected (2.5).

RELATIONSHIP BETWEEN WORKPLACE SURVEILLANCE AND OCCUPATIONAL HEALTH AND SAFETY/BEHAVIOUR MANAGEMENT

Pursuant to section 21 of the Occupational Health and Safety Act 1985, an employer has a responsibility to provide, so far as is practicable, a working environment for employees which is safe and without risks to health. 

An argument in relation to workplace surveillance can run both ways.   An employer can argue that workplace surveillance is used to ensure that a workplace is safe and free from risk of injury, including injury caused by activities such as harassment and discrimination.  An employee can argue that the fact they are monitored on video surveillance is in fact subjecting them to harassment and unnecessary stress which creates a hazard or risk to their health and safety.

An employer's duty under Occupational Health and Safety legislation is broad general duty and could arguably encompass the duty to provide a workplace which does not place employees under undue stress or harassment (caused by unnecessary or intrusive workplace surveillance). Workplace surveillance may also impact on employees morale and may create distrust and suspicion between employees and management.

Braue suggests that employee monitoring is:

…likely to cause resentment among workers if they feel they are being spied upon or continually pressured to improve their performance.  While the use of such programs is quite legal, it could backfire on employers by fostering low morale, widespread resentment and a negative public image that can be difficult to repair17.

Kim Heitman, Perth-based chairman of electronic privacy advocacy group Electronic Frontiers Australia, believes that if you adopt a (monitoring) policy on the basis that all your employees are out to get you, then you establish an us-and-them situation18.  Braue states that companies can realise the benefits of employee monitoring practices by obtaining the consent of its employees:

Consent can be incorporated as a term of employment.  Employers should be up-front about what data they collect and how they use it.  If data collection and usage policies change, workers should be informed19.

Chris Connelly, national co-ordinator for the Campaign for Fair Privacy Laws and director of non-profit consumer advocate the Financial Services Consumer Policy Centre believes it is "totally unrealistic" to expect employees won't occasionally have some need for privacy.  He believes that it is easier to keep staff if they are not scared by a dictatorial workplace.  Connelly questions whether a monitored workplace is a healthy work environment.

On the other hand, it is clear that one of the business rationales for adopting electronic surveillance is that it allows the employer to save money by reducing a layer of human management.  In fact, the NSW Privacy Committee has noted that in light of the constant pressure to cut costs…video surveillance may be an attractive means of reducing staffing costs, particularly those relating to supervision of other employees20.

Combating Behaviour Problems

Turner suggests that employers are not only concerned with issues of productivity, but also with minimising their liability with respect to potential claims which may arise as a result of misuse of the employer's system:

These claims include but are not limited to claims of sexual harassment, discrimination, bullying, and defamation; in addition, the exposure to claims of infringement of copyright, and offences under criminal legislation are also potential issues of concern to the employer21.

There are a range of workplace behaviour issues that might be favourably affected by the realisation on the part of the perpetrators that surveillance of their activities is possible or even likely.  The taking of drugs and alcohol at work, the sexual harassment of fellow employees and the bullying of other employees are all activities that are usually associated with stealth on the part of the perpetrator – they are often hidden activities to which there is no witness.  They are also all activities which might well constitute serious misconduct in the workplace and which can lead to injury and harm to self and others.

Some Australian states have introduced in car cameras as a means of protecting the safety of Taxi drivers by providing a real deterrent to those who otherwise may feel able to attack them in the relative privacy of the taxi cab.  In this sense, the electronic surveillance of the workplace is not designed to spotlight the work performance of the taxi driver but rather to uphold the employers occupational health and safety obligations to provide a safe workplace for the driver and to aid in the capture and conviction of those who threaten the safety of taxi drivers.

It might well be argued from a public policy perspective, that overt surveillance in the workplace may well lead to a reduction or even elimination of anti-social and potentially dangerous activities.

RELATIONSHIP BETWEEN WORKPLACE SURVEILLANCE AND DISCRIMINATION

Legislation at both State and Federal level prohibits discriminatory conduct on the basis of a number of identified attributes.  At Federal level, legislation covers race, disability and gender.  In Victoria, the Equal Opportunity Act 1995 covers the following attributes being:

  • age;

  • breastfeeding;

  • gender identity;

  • impairment;

  • industrial activity;

  • lawful sexual activity;

  • marital status;

  • parental status or status as a carer;

  • physical features;

  • political belief or activity;

  • pregnancy;

  • race;

  • religious belief or activity;

  • sex;

  • sexual orientation;

  • personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes.

If workplace surveillance is used either directly or indirectly to monitor the activities of those who fall within one of the attributes listed above, that surveillance could be said to constitute discrimination.  Direct discrimination is to treat someone with an attribute less favourably than someone without that attribute.  Indirect discrimination is to impose a requirement or condition or practice that someone with an attribute cannot or does not comply with and that a higher proportion of people without that attribute can comply with and that is not reasonable.

If, for example, a factory owner with a high proportion of employees from a particular ethnic background working in the factory decided to monitor the behaviour of the factory workforce but not to monitor the administrative staff in the factory office (who all happened to be of another ethnicity), it might be argued by the factory staff that one reason for the surveillance was the fact that they possessed a certain common attribute of being of a particular race which meant that they were being treated less favourably than those of another race in the office.

The possession of the attribute only needs to be a substantial reason, not the only or the dominant reason for the less favourable treatment. 22

In the workplace, an employer with a industrially active workforce, may be accused of instituting surveillance in order to monitor industrial activity – a specified attribute.   Whether such a claim of discrimination would be successful may depend on where cameras are placed and when they operate (in other words, could there be an argument that those meeting or talking to other employees on industrial issues are treated less favourably than those who do not meet to discuss industrial issues).

Clearly, surveillance of private areas such as toilets and change rooms would leave an employer wide open to complaints of sexual harassment and sex discrimination.

RELATIONSHIP BETWEEN WORKPLACE SURVEILLANCE AND PRIVACY

There is no fundamental general common law right to privacy in Australia.  The Commonwealth Privacy Act 1988 is the only comprehensive piece of legislation that specifically addresses the rights of employees to privacy.

The Privacy Act 1988 (Cth)

The Privacy Act 1988 (Cth) applies to all agencies of the Commonwealth and the Australian Capital Territory. Since 21 December 2001, the Act also applies to certain private sector organisations.

Under the Privacy Act 1988, an employer has several responsibilities towards its employees. These include:

  • only collect, use and disclose personal information (which is defined as any information which identifies or could potentially identify an individual) in a manner that is consistent with the National (or Information) Privacy Principles and the Privacy Act;

  • maintain the security of personal information held about them;

  • provide individuals with access to personal information held about them.

Information Privacy Principles: the public sector - Privacy Act 1988 (Cth)

The Privacy Act 1988 (Cth) sets out 11 Information Privacy Principles (IPPs) that govern the collection; storage and security; access; accuracy of records; and the use and disclosure of personal information by Commonwealth agencies (ie. public sector privacy obligations). 

The following IPPs have been deemed relevant by the Human Rights and Equal Opportunity Commission to the practice of covert surveillance23:

IPP 1: Manner and purpose of collection of personal information

Collection must be fair and lawful.  The information collected must be for a lawful purpose which is directly related to the function or activity of the agency and the collection of information must be necessary for or directly related to that purpose.

IPP 3: Solicitation of personal information generally

Agencies who solicit information (whether from the person that the information is about or otherwise) to take reasonable steps to ensure that the information is relevant to the purposes of collection, up-to-date, complete and that there is not unreasonable intrusion into a person's personal affairs.

IPP 4: Storage and security of personal information

Agencies must protect information with reasonable security safeguards against loss, unauthorised access, use, modification or disclosure, and other misuse. 

IPP 6:  Access to records containing personal information

IPP 6 grants to the individual concerned access rights to personal information held by an agency, subject to exemptions provided in the Freedom of Information Act 1982 or any other law.

IPP 7: Alteration of records containing personal information

IPP 7 requires agencies to ensure that personal information held is accurate, relevant, up to date, complete and not misleading.  The individual concerned has amendment and annotation rights, subject to the exceptions listed in IPP 6.

IPP 8:  Record-keeper to check accuracy etc. of personal information before use

IPP 8 requires agencies to check that information is accurate, up to date and complete prior to using it.

IPP 9: Limits on the use of personal information to relevant purpose

This IPP requires agencies to confine the use of information to purposes to which the information is relevant.

IPP 10:  Limits on the use of personal information

IPP limits the use of personal information.  Agencies may not use personal information for purposes other than those for which it is collected except:

  • with the consent of the person

  • to prevent a serious and imminent threat to a person's life or health

  • as required or authorised by law

  • where reasonably necessary for the enforcement of the criminal law or a law imposing a pecuniary penalty or for the protection of the public revenue

  • for a directly related purpose.

If an agency uses information for another purpose under the fourth exception, the use must be logged on the individual's record.

IPP 11: Limits on disclosure of personal information

IPP 11 limits the disclosure of personal information outside an agency.  Agencies may not disclose personal information unless one of five exceptions apply.  Four of these exceptions are the same as for 1PP 10 (see (a) to (d) above).  There is an additional exception where the subject of the information is reasonably likely to be aware or made aware under IPP 2 that the information is usually disclosed.  The recipient of information under one of these exceptions may only use it for the purpose for which it was disclosed.

Is Surveillance Material Personal Information?

The obvious question which arises in relation to information gained by electronic surveillance is – is that information personal information for the purposes of the privacy legislation.

Personal information under section 6 of the Privacy Act means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

It is likely that the visual images recorded of employees and others on surveillance tapes will disclose the identity of the individual.  Those images, therefore, are personal information recorded in a material form.  A record, under the Privacy Act, includes a photograph or other pictorial representation.

National Privacy Principles: the private sector – The Privacy Act 1988 (Cth)

Since 21 December 2001, the Federal Government has extended privacy protection from the public sector to the private sector.  Ten National Privacy Principles (NPPs), set out in the Privacy Act 1988, now regulate the handling of personal information including collection, use, disclosure and storage of personal information by some private bodies.  NPPs do not apply to certain categories of organisation including small business operators (business with a turnover of less than $3 million), political parties and representatives in particular circumstances, certain government contractors, and the media for acts done in the course of journalism.

The NPPs set out minimum standards for the handling of personal information.  To follow is a summary of NPPs that are considered relevant to the issue of workplace surveillance:

NPP1: Collection of personal information

Collection must be necessary for an organisation's activities, information must be collected lawfully and fairly and as a general principle must be collected with the individual's consent

NPP2: Use and disclosure of personal information

As general principle, information can only be used or disclosed for its original purpose unless the person has consented to its use or disclosure for another purpose.  Exemptions apply, including situations where there are issues of law enforcement, public safety or protecting the company from fraud.

NPP 4: Security of personal information

Organisations must take reasonable steps to protect the personal information which they hold from misuse, loss, unauthorised access, modification or disclosure.

NPP 5: Openness in relation to the organisations practices

Organisations which collect personal information must be able to document their practices and must make this information available on request.

NPP 6:  Access and correction rights

As a general principle, organisations must give individuals access to their personal information and must allow them to correct it or explain something with which they disagree, unless disclosing this would have an unreasonable impact on someone else's privacy.  This principle is subject to exemptions such as if this disclosure would compromise a fraud investigation.

National Privacy Principles – Relationship to Workplace Surveillance

There were a number of new definitions inserted into the Privacy Act as a result of the 2000 amendments.  Of interest to the issue of workplace surveillance, these included:

Employee record, in relation to an employee, means a record of personal information relating to the employment of the employee. Examples of personal information relating to the employment of the employee are health information about the employee and personal information about all or any of the following:

(a)  the engagement, training, disciplining or resignation of the employee;

(b)  the termination of the employment of the employee;

(c)  the terms and conditions of employment of the employee;

(d)  the employee's personal and emergency contact details;

(e)  the employee's performance or conduct;

(f)  the employee's hours of employment;

(g)  the employee's salary or wages;

(h)  the employee's membership of a professional or trade association;

(i)  the employee's trade union membership;

(j)  the employee's recreation, long service, sick, personal, maternity, paternity or other leave;

(k)  the employee's taxation, banking or superannuation affairs.

An act done, or practice engaged in, by an employer, is exempt under the Privacy Act if the act or practice is directly related to a current or former employment relationship between the employer and the individual and an employee record held by the organisation and relating to the individual.  Surveillance tapes record, it might be argued, matters of conduct and performance which fall within the definition of employment records.

These records of employee activities recorded by video surveillance, therefore, are arguably employment records and therefore exempt from the privacy requirements of the Privacy Act.

The Law Reform Commission of Victoria notes in its discussion paper, Privacy Law – Options for Reform24 that the information privacy of employee records is a subject that might well be targeted for reform.

Records relating to members of the public and non employees, however, would not fall within this exception to the Privacy Act.

Enforcement under the Privacy Act 1988

An individual who believes that their privacy has been breached can make a complaint to the organisation concerned pursuant to section 40(1A) of the Privacy Act 1988.  The Privacy Commissioner will generally not investigate a complaint unless the individual has first complained to the respondent.  If the complaint is not resolved satisfactorily, the individual can then make a complaint to the Privacy Commissioner. 

The Privacy Commissioner does not have the power to impose fines on companies that breach the Privacy Act, however the Commissioner can make a formal determination pursuant to section 52 of the Privacy Act when a complaint concerning a breach of privacy cannot be satisfactorily resolved.  The determination can include monetary compensation.  A determination can also be made requiring the organisation to cease a particular act.

Information Privacy Act 2000 (Vic)

The Information Privacy Act 2000 (Vic) establishes a regime for the responsible collection and handling of 'personal information' in the Victorian public sector.   Similarly to the Commonwealth legislation: 

Personal information is defined in the Act to mean information or an opinion (including information or an opinion forming part of a database), that is recorded in any form and whether true or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion, but does not include information of a kind to which the Health Records Act 2001 applies.

The Information Privacy Act 2000 requires Victorian government agencies and local councils to comply with ten Information Privacy Principles25.  Similar to the IPPs for Federal public sector agencies, the IPPs centre around the concepts of Information Collection (IPP 1), Use and Disclosure (IPP 2), Date Quality (IPP 3) Data Security (IPP 4), Access and Correction (IPP 6), Anonymity (IPP 8) and Sensitive Information (IPP 10).

There is no exclusion under this legislation for employee records.  Accordingly, those employees engaged by the public sector arguably have access to video surveillance records of themselves in accordance with the Information Privacy Principles.

Enforcement under Information Privacy Act 2000 (Vic)

Pursuant to section 18(3)(d) of the Act, agencies have one year to ensure that they are compliant with the IPPs or an approved code of practice.  From 1 September 2002, the Privacy Commissioner will consider complaints about acts or practices that may interfere with the privacy of individuals.  It is expected that the majority of complaints will be resolved through conciliation.26  Those complaints not resolved through conciliation are likely to be determined by the Victorian Civil and Administrative  Appeals Tribunal (VCAT).

CONCLUSIONS IN RELATION TO WORKPLACE SURVEILLANCE AND PRIVACY

Nolan states that recent case law27 demonstrates that privacy intrusive employment practices are on the increase28.  It is clear that there is a need for employers to balance an employee's desire for privacy against its obligation to ensure safe and harassment free work environments of all employees29.  Cooper and Croxford state that an employer can manage risks by ensuring that:

  • they understand their legal position;

  • they consider the need to include provisions about surveillance in contracts of employment;

  • employees (and in some cases the public) are aware that their activities may be recorded or filmed;

  • employees (and in some cases the public) are told what is being monitored;

  • policies and procedures are in place to support monitoring;

  • systems are in place to prevent misuse;

  • caution is exercised in the use of surveillance; and

  • the police are involved when illegal activity is suspected30.

ILO Code Of Practice On The Protection Of Worker's Personal Data

There is certainly international support for the protection of individual privacy in the workplace.  The International Labor Office (ILO) supports strong privacy principles.  The ILO's Code of Practice on the Protection of Workers' Personal Data sets out the following general principles31:

  • personal data should be used lawfully and fairly, only for reasons directly relevant to the employment of the worker and only for the purposes for which they were originally collected;

  • employers should not collect sensitive personal data (such as that concerning a worker's sex life, political, religious or other beliefs, trade union membership etc) unless that information is directly relevant to an employment decision and in conformity with national legislation;

  • workers should be informed in advance of any monitoring and any data collected by such monitoring should not be the only factors in evaluating performance;

  • employers should ensure the security of personal data against loss, unauthorised access, use, alteration or disclosure; and

  • employees should be informed regularly of any data held about them and be given access to the data.

WORKPLACE SURVEILLANCE – SOME CONCLUSIONS

Workplace surveillance is likely to become an increasingly accepted part of going to work.  Whereas in past years, employees walked around their office areas without having to negotiate locked security doors, the carrying of electronic/magnetic pass cards to access all office areas is now standard practice.  Each time one of us swipes that card to access an office area, our movements are recorded. 

We are used to seeing cameras in lifts, building foyers, shops, banks and 24 hour outlets such as 7/11.  The viewing of video surveillance tapes on television shows is a common crime solving technique on all police dramas.  We now have our motor vehicle speed checked by speed cameras and fines are issued on the basis of that information.  Many families record family events and child milestones on their own video record.  These are now provided by families to television shows as part of reality TV (worlds funniest/worst etc home videos).  Cameras even record intimate personal events such as medical tests, procedures and operations and discussions with doctors for those willing to participate in hospital reality shows such as RPA.

Our world is permeated with electronic surveillance.  In some cases, for those whose well being is threatened by others at work or in connection with their work, the deterrent offered by video surveillance will be welcomed.  Others may find electronic surveillance of their work activities to be intrusive and disturbing.

When activities at work are not private activities, employees should now assume that video surveillance, if not likely, is still a real possibility.  Where the employee is doing what might be considered private activities, the employee should be aware of whether they have been asked to provide express consent to video surveillance or whether the employer has any policy or procedure of which they are aware where it might be argued that their knowledge of this has in effect meant that they have given implied consent to the filming of private activities.

Today’s employee should also be aware of their rights under the privacy legislation but realise that, if employed by a private sector employer, an electronic record of their conduct and performance at work may well be considered to fall outside the protections offered by the privacy legislation by forming part of their exempt employment record.

  1. J Sempill, Under the Lens: Electronic Workplace Surveillance (2001) 14 Australian Journal of Labour Law, at 112.

  2. The Privacy Committee of New South Wales, Invisible Eyes: Report on Video Surveillance in the Workplace (No 67) 1995, at 5

  3. Hansard, 11 May 1999.

  4. See www.lawreform.vic.gov.au for details

  5. www.lawreform.vic.gov.au

  6. J Cooper and L Croxford in Employment Law: Workplace Surveillance and Employee Information (July 2000), Australian Company Secretary, at 359 suggest that employees ought reasonably to expect the employee activities be observed by someone else at banks, casinos and service stations.

  7. J Cooper and L Croxford in Employment Law: Workplace Surveillance and Employee Information (July 2000), Australian Company Secretary, at 359

  8. Section 31

  9. Section 32

  10. ibid 1 at 115

  11. ibid 1 at 116ff

  12. ibid 1 at 122ff

  13. ibid 1 at 128

  14. see Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144

  15. ibid 1 at 129

  16. Workplace Express, Wednesday 25 September 2002

  17. D Braue, Every Breath You Take, The Bulletin, January 25, 2000, at 65

  18. D Braue, Every Breath You Take, The Bulletin, January 25, 2000, at 65

  19. D Braue, Every Breath You Take, The Bulletin, January 25, 2000, at 65

  20. The Privacy Committee of New South Wales, Invisible Eyes: Report on Video Surveillance in the Workplace (No 67) 1995, at 5

  21. C Turner, Workplace Investigations and Surveillance, BLEC Conferences.

  22. Section 8 of the Equal Opportunity Act 1995

  23. Human Rights and Equal Opportunity Commission (February 1992), Covert surveillance in Commonwealth Administration Guidelines.

  24. Which can be accessed at www.lawreform.vic.gov.au

  25. Section 16(1)

  26. P Chadwick, Privacy in Victoria – A New Landscape (18 October 2001), Victorian Privacy Commissioner to the International Association of Business Communicators.

  27. For example Rose v Telstra (unreported, AIRC, Vice President Ross, 4 December 1998 Print Q9292); McManus v Scott-Charlton (1996) 140 ALR 625

  28. J Nolan, Employee privacy in the electronic workplace Pt 2: drug testing, out of hours conduct and references (2000) PLPR 7, at 144

  29. J Cooper and L Croxford, Employment Law – Workplace Surveillance and Employee Information (July 2000), Australian Company Secretary, at 361.

  30. J Cooper and L Croxford, Employment Law – Workplace Surveillance and Employee Information (July 2000), Australian Company Secretary, at 361.

  31. These principles have been summarised by D Banisar and S Andrews in, The World of Surveillance Pt 4: Workplace Privacy (2000) 7 PLPR 6, at 119

STUDY POINTS

1.         Does the Surveillance Devices Act prohibit workplace surveillance?  
2.         Does the Act prohibit covert surveillance?  
3.         What are the HREOC Guidelines for covert surveillance?  
4.         What are the arguments for and against surveillance on OHS grounds?  
5.         When could surveillance be seen as discriminatory?  
6.         What National Privacy Principles apply to workplace surveillance?  
7.         What restrictions apply to publication and communication of private activities under the Surveillance Devices Act?