Rights & Responsibilities

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Workplace Surveillance Act

The Workplace Surveillance Act, which came into force on 7 October, 2005 relates to the employer's use of technology, including video cameras, computers and tracking devices, to monitor employees.

Generally the Workplace Surveillance Act 2005:

• prohibits the surveillance of employees at work, by their employer, except where employees have been given notice or where the employer has a covert surveillance authority.  (The notice requirements are listed below)
• applies to camera surveillance, computer surveillance (surveillance of the input, output or other use of a computer by an employee) and tracking surveillance (surveillance by means of an electronic device the primary purpose of which is to monitor or record geographical location or movement);
• extends beyond the workplace to any place where an employee is working;
• prohibits surveillance in a change room, toilet facility or shower or other bathing facility at a workplace;
• restricts and regulates the blocking by employers of emails and internet access of employees at work.  In particular it prevents employers from blocking access to emails or internet sites because the content relates to industrial matters;
• provides for the issue of covert surveillance authorities by Magistrates and regulates the carrying out of surveillance under a covert surveillance authority and storage of covert surveillance records;
• restricts the use and disclosure of covert surveillance records;
• repeals and replaces the Workplace Video Surveillance Act 1998, which applied only to video (ie camera) surveillance.

General notice requirements

Written (or emailed) notice must be given at least 14 days prior to any surveillance commencing.  This 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 new employees notification must be given before they start work. 

Additional camera/video surveillance notice requirements

Cameras used for surveillance (or camera casings or other equipment that would generally indicate the presence of a camera) must be clearly visible in the place where the surveillance is taking place.  Signs must also notify people that they may be under surveillance in that place and must be clearly visible at each entrance to that place.  These mirror the requirements under the Workplace Video Surveillance Act 1988.

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Additional tracking surveillance notice requirements

There must be a notice clearly visible on the vehicle (or other thing) that is being tracked, indicating that the vehicle (or thing) is the subject of tracking surveillance.

Additional computer surveillance notice requirements

Computer/internet/email surveillance of an employee must not be carried out unless the surveillance is carried out in accordance with a computer surveillance policy of the employer.  The employee must be notified in advance of that policy in such a way that it is reasonable to assume that he or she is aware of and understands the policy.  The notification requirements are flexible so that employers can meet them in different ways.

The Act does not prevent or significantly restrict employers from conducting email and internet surveillance.  All the Act requires is that notice of such surveillance is given.

It should be noted that not all monitoring or recording of the use of a computer is 'computer surveillance'.  The Act relates to 'surveillance', as that term is ordinarily understood. 

Computer surveillance therefore does not cover normal business practices such as back-ups of hard drives, network performance monitoring, software licence monitoring, computer asset tracking, computer asset management or the normal saving of documents.  These are not normally considered to be 'surveillance' activities.

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However, if back-ups , for instance, were used to conduct surveillance to facilitate the reading of somebody's emails, that would need to be notified to employees, otherwise it would be considered to be covert surveillance.

This is a common sense approach to the issue of computer surveillance.  There are obviously many functions of a computer that require the recording of activities.  Only surveillance activities, such as reading emails, or watching every web site a person goes to, or logging individual keystrokes, or covert observation of everything an employee does on their machine, requires notification.

The Act also places restrictions on the blocking of emails.  Employers will be required to give notice to an employee on any occasion when an e-mail message sent by or to the employee is blocked (that is, prevented from reaching its intended recipient). 

Notice is not required if the email has been blocked because it was spam, contained a virus, or would be regarded by reasonable persons as being menacing, harassing or offensive (for example, if it is pornography or involved criminal activity or was otherwise unlawful).  It is unlawful for an employer to block an e-mail message, or access to a website:

• other than in accordance with the employer's stated policy on e-mail and internet use; or
• merely because the message or website includes information relating to industrial matters. 

The provisions regarding access to information relating to industrial matters do not require employers to provide internet access to employees.  Nor will the Act prevent employers from blocking all external internet access, where previously they allowed such access, unless they do so to prevent their employees obtaining access to industrial information.  There may be legitimate business reasons, such as cost considerations, for an employer to not have external internet access.

Provisions relating to covert surveillance still require the employer to have an authority from a Magistrate prior to such surveillance commencing.

The Workplace Surveillance Act 2005 and accompanying regulations can be viewed at www.legislation.nsw.gov.au