September 2005

The new Workplace Surveillance Act 2005 (NSW) - Are you ready?

A new regime: how will it work and is it all valid?

Since 1998 the Workplace Video Surveillance Act has restricted video surveillance of employees at work.  The State Government has now decided to extend surveillance restrictions through the introduction of the Workplace Surveillance Act 2005 which will  regulate camera surveillance in much the same way as before and also computer surveillance and tracking devices.  On 16 September the Act was proclaimed to commence on 7 October 2005.  This bulletin provides an outline of the main points and questions the enforceability of aspects of the legislation.

What's new in the new legislation?

The new Act regulates surveillance of employees when they are at work. One significant change is the expanded definition of when an employee is "at work" which now includes any workplace of the employer (or related company) whether or not the employee is actually performing work, and also any other place where the person is performing work for the employer.

The change is less important for camera surveillance than for computer and tracking surveillance of people on the road or working from home. As before, the new Act allows employers to ask a court for an authority to carry out covert surveillance, but only in special circumstances.

Giving notice

The basic requirement for all forms of surveillance is 14 days written notice of the kind of surveillance to be carried out, how it will be done, when it will start, whether the surveillance will be continuous or intermittent and whether it is to be for limited periods or ongoing. Tracking surveillance (such as by GPS) requires that the device to be tracked is labelled with a notice, warning of tracking surveillance.

Given the short time between proclamation and commencement most employers will not have given the required 14 days notice and until that notice is given any surveillance will be contrary to the Act.

Any computer surveillance must be in accordance with a published and communicated computer surveillance policy.

Blocking emails and websites

When it comes to computer use an employer cannot prevent access to internet websites or block the sending or delivery of emails unless that blocking is in accordance with a policy. In the case of a blocked email the employer must send what is called a "prevented delivery notice" to the employee, unless the email was spam, contained a virus or was menacing, harassing or offensive. Employers cannot block emails or access to websites concerning "industrial matters".

The new restrictions on computer surveillance do not mean that employees are somehow entitled to private use of the company email system. A policy can limit or prohibit personal use, and all use can be monitored if notice is given.

Compliance

Once notice is given the Act requires new computer surveillance and email and internet blocking policies, and the labelling of devices that are tracked. It will be important to get things right because not only can proceedings for any breach be commenced by the relevant authorities but also by a union or the person who was subject to the alleged non-complying surveillance.

Once the compliance issues are met there are two areas of probable controversy; claims of breach of privacy and possible constitutional conflict with the Federal Telecommunications (Interception) Act.

Privacy

A computer system which regularly backs up personal emails could theoretically breach the Privacy Act because it collects personal information without the knowledge of those involved. This problem can be avoided if the company's computer use policy tells employees there are no private emails and all emails are backed up and reviewed for compliance with policy. So if workers choose to send a personal email they are giving consent to the email being backed up, and then reviewed for compliance with the policy.

Conflict with the Federal Telecommunications (Interception) Act

In the next few months we are all going to hear a great deal about the conflict between state and federal powers regarding industrial matters; workplace surveillance may be another area of dispute. The Federal Telecommunications (Interception) Act allows the listening to or recording of communications passing over the "telecommunications system", a concept which is not precisely defined but most likely includes email and internet access. In 1978 the High Court decided that Federal regulation of what was then the "telephone system" completely excluded any regulation by the states (Miller v Miller [1978] 141 CLR 269).

There is a good argument that the surveillance restrictions in the NSW Workplace Surveillance Act cannot apply to internet access and internet email, although the Act will still apply to internal emails and other types of surveillance covered by the Act. We can expect a constitutional challenge as soon as the first prosecution for breach of the new Act is launched.

The take home message

No surveillance or blocking without 14 days notice and complying policies; well drafted policies will allow you to do all you might want to do.