Workplace Surveillance (Qld)

Workplace surveillance is becoming increasingly common in Queensland for a variety of reasons. An employer might deploy surveillance devices for legitimate purposes such as to ensure employee safety, protect assets, detect fraud or theft, and monitor quality control and employee behaviour. However, these objectives need to be balanced against the employees’ and/or customers’ right to privacy. There is both federal and state law that governs the implementation of workplace surveillance in Queensland. This article outlines the rules and regulations relating to workplace surveillance.

Benefits Of Workplace Surveillance

One of the major advantages of workplace surveillance is the potential to have an uncontested record in case of workplace incident or accident. For example, if a company would otherwise be vicariously liable for the conduct of an employee, but the video recording establishes that the employee was acting outside their employment scope or engaging in willful misconduct, then the company may not be liable.

What Is Workplace Surveillance In Queensland?

Workplace surveillance has been standard in businesses for decades, but as technology has developed, the recording options have expanded. The types of devices that monitor workplaces in Queensland include:

• Equipment that provides visual and audio surveillance of the workplace and surrounding area;
• Data surveillance devices that monitor internet and computer use; and
• Tracking devices that monitor the physical location of an employee or a company vehicle.

In addition to long-established methods of workplace surveillance, such as CCTV, there are now other more modern devices that are commonly used, particularly in the construction and transport industries. For instance, transport and delivery companies typically install dashboard cameras on their company vehicles, which record the surrounding area of the car and sometimes also its speed and location. Another example is wearable cameras (or ‘body cams’) that are worn on an employee’s clothing and can travel to areas of a workplace that CCTV cameras do not cover.

Queensland Law On Workplace Surveillance

In Queensland, an employer can monitor and surveil workplace activity to ensure that staff members use resources and work appropriately. An employer can even legally monitor computer and internet use, as well as email, as long as the employee is aware of the surveillance.

However, it is an offence under Section 227A of the Criminal Code to photograph or video record people without consent in places where there is an expectation of privacy, such as a bathroom, bedroom or changing room. A breach of the criminal code is a misdemeanour punishable by up to three years in prison. An employer needs to take care that a surveillance camera does not inadvertently intrude on places where a worker has an expectation of privacy.

A business that is governed by the Privacy Act 1988 (Cth) must also comply with the Australian Privacy Principles (APPs) when implementing workplace surveillance. For instance, if a relevant business keeps a record of emails that is not directly related to work product then this data will be subject to the APPs.

Apart from these laws, in Queensland, there is no specific legislation that regulates the surveillance of employees, in contrast to other Australian states (such as New South Wales and Victoria). The Queensland Law Reform Commission is expected to publish a Workplace Surveillance Review in 2021 to address whether Queensland should have legislation on this matter. This review is expected to give weight to a number of factors, including the protection of the employees, the interests of the employers, and current legislative provisions.

How Should A Company Implement Workplace Surveillance?

A company should consider very carefully whether it is necessary and appropriate to implement workplace surveillance. The employer needs to have a legitimate purpose in making recordings, and the surveillance needs to achieve that purpose without unnecessarily recording information that does not fulfil that purpose.

The company should further consider whether it is necessary to record audio as well as video in order to achieve the stated purpose. Turning on audio surveillance increases the likelihood that sensitive information will be recorded, as employees will often discuss personal and protected information with co-workers.

Notify All Parties Of The Workplace Surveillance

Before proceeding with implementing surveillance, the first thing a company should do is notify all employees, contractors, customers and anyone else that they are being monitored. The company must also explain the purpose of the surveillance. If the reason for the surveillance changes, then the interested parties must be informed immediately. Often it is most convenient to give this notification to new employees during the onboarding or induction process. For businesses that are open to the public, it is most appropriate to display a sign at the entrance to the business.

Obtain Consent For The Workplace Surveillance

It is a good idea to obtain consent from employees to the surveillance, particularly if there is a possibility that sensitive information will inadvertently be recorded or collected. For instance, if a device records sensitive information, such as data about union membership, the collection of this information requires consent under the Privacy Act.

The company needs to develop policies on how long the recording will be retained and this policy should only be varied for a legitimate business reason. Ideally, a recording should be kept for as little time as practical for operational purposes. The surveillance should be stored in such a way that it is easy to locate and retrieve specific recordings in response to a litigation discovery request or inquest. A company that has been informed of pending litigation must not delete recordings that could be relevant to a subpoena and must turn off any systems that would automatically delete footage.

A company also needs to be careful when making rules about when surveillance commences and concludes. For instance, it may appear discriminatory if the employer only chooses to surveil some employees and not others. On the other hand, it may be difficult for an employee to abide by the privacy regulations in the Criminal Code if, for instance, body cam wearers cannot turn off their camera before entering a company bathroom.

A company or business should obtain legal advice before implementing any type of workplace surveillance in Queensland to ensure that it does not contravene privacy law. If you need advice on this matter, please contact the team at Armstrong Legal on 1300 038 223.