Home' The Channel Magazine : The Channel April 2016 Contents 62 | The Channel
Employers have many options for keeping digital tabs on
employees—cameras, email/online monitoring and GPS
tracking in vehicles are three that are reasonably common.
But what are employers allowed to do? And what might be
What does the law say? Laws regulating surveillance generally,
or in the workplace specifically, are set by state and territory
governments, so the requirements across Australia are slightly
different depending on where you are located.
The general principle is that you cannot publish a record of
an employee’s private activity if the record has been obtained
without the employee’s consent. There are some limited
exceptions, such as in instances of protecting your own lawful
interests, however tread carefully!
Importantly, it must be recognised that being able to use an
electronic record is not the same thing as being allowed to
make the recording or conduct the surveillance. In several
states around Australia, no one is allowed to record activity in
private areas such as change rooms, toilets, and showers.
New South Wales has the most prescriptive surveillance laws
of all, requiring written notice 14 days before surveillance
commences. If the surveillance is by camera, signs must be
placed around the workplace indicating that surveillance
is undertaken. In most jurisdictions, employee consent is
required for surveillance, such as video or audio surveillance
where an employee might reasonably believe that they could
not be seen or heard by third parties.
Can an employer monitor email and online activity?
Employers may monitor employees’ emails and online activity
provided that there is a clearly communicated policy that
states that monitoring will take place, what will be monitored,
and how that information will be used. If, for example, the
results of monitoring may be used in disciplinary matters,
then this needs to be clear.
It’s my vehicle... surely I can track it? Employers are entitled
to track their vehicles, but tracking devices should only be
used with the following in place:
Written or implied consent should be obtained by the
employer installing, using or maintaining a tracking device.
Tracking should only be active during working hours.
Have a notice on the vehicle stating that the vehicle is
Be clear about the purpose of the tracking. If the
tracking data may be used for disciplinary purposes, this
should be explicitly communicated to employees.
What about an employee who secretly records a
conversation? Most employees who covertly record a
conversation at work are likely to argue that they are
protecting their lawful interests—for example, protecting
themselves against bullying, unfair management, or safety
risks. It is clear from a couple of cases in the Fair Work
Commission (FWC) that the Commission is not necessarily
supportive of the decision by an individual to covertly record
others. In one case (Schwenke v Silcar) the employee was
dismissed because he made a recording, and that decision
was upheld by the FWC.
The Commissioner said, “Secretly recorded discussions are
objectionable because one party is being deceptive and
purposefully misleading the other party.” The Commissioner
did recognise that it sometimes may be necessary to
protect an employee against bullying and other behaviour of
that ilk, but he cautioned that “the gravity and cause would
have to be significant to override the general requirement
of dealing honestly and openly with the employer and work
colleagues.” This is especially the case in light of the risk of
provocation or entrapment.
In another decision (Thomas v Newland Food Company), the
employee was awarded the maximum compensation, but was
not reinstated, because his actions struck at the
heart of the employment relationship, shattering any
chance of re-establishing the trust and confidence required
in the relationship.
However, both of these decisions relied to a certain extent on
the existence of a duty of mutual trust and confidence in the
employment contract, and subsequent decisions in the High
Court have specified that duty does not exist. When Grace
Collier hid a microphone in her bra when having discussions
with the AMWU during an industrial dispute during 2013, the
Federal Court was scathing in their criticism of her behaviour,
and the Judge was concerned that she was trying to trap the
union official into saying something contrary to his interests.
If you are having a meeting with an employee, and
you suspect that the employee may wish to record the
conversation you could either:
expressly state that you do not agree to the conversation
being recorded, and make a note in your records that
you did so; or
openly record the conversation and provide the
employee with a copy of the recording.
As a general rule, being open and transparent about
surveillance of any type in the workplace will give you a better
chance of being able to rely on material that comes to light.
Words: Emma Watt, ANF IR Specialist
1. Written consent might be in the contract of
employment, or in a tracking policy that the
employee signs before a tracking device is
2. Consent might be implied if the employee is
informed of a tracking device and raises no
Big Sibling is watching...
Links Archive N-view 2016 The Channel June 2016 Navigation Previous Page Next Page