Workplace surveillance: When is it lawful?
Workplace surveillance has become a growing concern for many Australian employees. Particularly as more companies adopt technology to monitor productivity and performance. Some forms of surveillance are obvious, like CCTV. However others, like monitoring emails, phone calls, keystrokes or even your location via GPS might be less visible but are increasingly common.
Workplace surveillance is a significant issue for workers across Australia, and laws regulating this practice vary by state and territory. It’s therefore essential for employees to understand their rights in different regions.
In this article, we outline the laws governing workplace surveillance in different states and territories. We also look at a recent unfair dismissal case that involved an employee who was fired after his employer recorded his private “extremely offensive” conversations. In this case, the Fair Work Commission had to decide if the recordings were lawful.
Laundry workers subjected to workplace surveillance to monitor productivity
Many Australian employers argue that forms of workplace surveillance are not about keeping an eye on workers. Rather, they are to ensure they are working as productively as possible.
This argument hit Australian news headlines in September 2024 when the Laundry Association of Australia took issue with its “productivity tools” being labelled as workplace surveillance by the Victorian government. The technology in question can include a screen laundry workers can see, which shows their speed against set targets.
The Laundry Association of Australia defended the use of such technology when speaking to a Victorian government inquiry. The association argued its necessity given the high-volume, low margin” nature of laundry businesses. It told the inquiry that “productivity is therefore a critical issue”. Highlighting that such technology can lead to productivity improvements of up to 10 per cent. The association told the inquiry that most Victorian industrial laundries use such technology.
Victorian government has “disturbingly negative” view of productivity tools
In particular, the Laundry Association of Australia took issue with the Victorian government inquiry labelling the technology as “workplace surveillance” in its terms of reference. With respect to the terms of reference, the association said “the connotations are disturbingly negative.”
It lamented that “there is no mention at all…of the relevance and importance of workplace productivity” in the terms of reference for the technology.” The association decried the Victorian government for its “one-sided approach,” which “demonstrates a lack of interest in a business perspective.”
“Almost all significantly sized laundries will have what is effectively an item counter for each team member,” the Laundry Association of Australia wrote in its submission to the inquiry.
Laundry Association claims technology is about productivity, not surveillance
The Laundry Association of Australia argued to the inquiry that its productivity tools are necessary as laundry businesses are facing increasing wages and expenses. The association said that the technology “is about productivity not about other motives, contrary to what the terms of reference imply.”
The independent Australia Institute Centre for Future Work presented a different view of the workplace surveillance technology employed by laundries. The institute told the inquiry that “surveillance can benefit workers.” However, it said that for many workers it is resulting in “work intensification and reduced autonomy and control and undermine job quality and worker wellbeing.”
Workplace surveillance laws in NSW and the ACT
NSW and the ACT have some of the most comprehensive workplace surveillance laws. In NSW, the Workplace Surveillance Act 2005 regulates workplace surveillance. Meanwhile, in the ACT the Workplace Privacy Act 2011 governs this practice. Both sets of laws require employers to provide clear notice to employees about surveillance practices.
In both jurisdictions, employees must be given 14 days’ notice before any form of surveillance begins. Unless the employee agrees to a shorter notice period. The laws also demand employers to provide a workplace surveillance policy.
With respect to video surveillance, the laws dictate that cameras must be visible and signs must indicate their presence. Additionally, any GPS tracking or computer monitoring must be disclosed to employees. This ensures transparency and allows workers to be fully informed of how they are being monitored in the workplace.
Workplace surveillance in other states and territories
Unlike NSW and the ACT, other states and territories like Victoria, Queensland, Western Australia, South Australia, Tasmania and the NT do not have specific workplace surveillance laws. However, this does not mean that employees are left unprotected. Instead, broader privacy and surveillance laws in these states govern the use of devices such as CCTV, tracking, and audio recording.
For example, the Surveillance Devices Act 1999 (Vic) in Victoria prohibits surveillance in private spaces. This includes toilets, changing rooms, and other areas where privacy is expected.
Queensland’s Invasion of Privacy Act 1971 allows the recording of a conversation if one party consents, but restricts how those recordings can be used.
Western Australia’s Surveillance Devices Act 1998 and South Australia’s Surveillance Devices Act 2016 also make it illegal to record private conversations without consent from all parties involved.
In all of these jurisdictions, employers are generally required to gain consent from employees before installing or using any surveillance devices. Even though the laws are not as specific as those in NSW and the ACT, employees are still entitled to certain protections under general privacy principles.
Is it lawful for employers to record conversations?
Recording private conversations in the workplace without the knowledge and consent of all parties is generally prohibited across all states and territories. NSW, for instance, explicitly prohibits the recording of private conversations. That is, unless it is reasonably necessary to protect the lawful interests of the person making the recording.
In Queensland, an individual can record a conversation if they are a participant. However, the use of that recording can be restricted. Although surveillance is legal in most workplaces across Australia, employees have the right to be informed of the type of surveillance being conducted. Including why it is being used, and how long the data will be retained.
It is also important to note that certain areas are off-limits for surveillance. For example, toilets, changing rooms, and areas where employees can reasonably expect privacy are protected by law in every state. Employers cannot install cameras or listening devices in these areas under any circumstances.
Unfair dismissal claim rejected as secret recordings ruled admissible by Fair Work
A recent unfair dismissal case highlighted how workers can be legally surveilled without their knowledge. The case in question is Terrence McGlashan v MSS Security Pty Limited [2023].
Terrence McGlashan was employed by MSS Security from October 2010 until his termination in 2023. His employment was brought to an abrupt end after MSS Security discovered recordings of internal telephone conversations during an unrelated investigation.
These recordings, according to MSS Security, contained “extremely offensive” content, which led to the dismissal of Mr McGlashan. However, he argued to the Fair Work Commission that these recordings were illegally obtained. Mr McGlashan therefore contented that the recordings should not be allowed as evidence in his unfair dismissal proceedings.
Fair Work finds contract and policies stipulated workplace surveillance
Both parties agreed to seek a preliminary ruling from the Fair Work Commission on the admissibility of the recordings. The commission found that the employment contract Mr McGlashan signed outlined that surveillance could take place in the workplace. This included cameras, computer monitoring, tracking devices and phone voice recordings.
The contract also stated surveillance would be continuous throughout the period of employment. According to the contract, the surveillance was intended for quality control and security purposes. It however noted that employee monitoring was also an objective.
The Fair Work Commission also found that MSS Security’s workplace policy explicitly mentioned that workplace surveillance included the “audio recording of telephones at some MSS Security work locations.” Mr McGlashan acknowledged that he was aware external calls made to or from the company’s phones could be recorded. However, he denied knowing that internal phone conversations were also being monitored.
Worker claims recordings violated the law
In his unfair dismissal claim, Mr McGlashan argued to the Fair Work Commission that the recordings violated the Telecommunications (Interception and Access) Act 1979 (Cth) (the TIA Act). This legislation prohibits the unauthorised interception of communications passing over a telecommunications system.
Specifically, it defines “interception” as the recording or listening to a communication passing over a telecommunications system without the knowledge of the person making the communication. Mr McGlashan contended that he did not know his internal calls were being recorded. He also argued the recordings violated the Listening Devices Act 1992 (ACT) (the LD Act). This legislation restricts the use of listening devices to record private conversations without consent of the parties involved.
Employer argues worker consented to recordings
However, MSS Security argued to the Fair Work Commission that Mr McGlashan had consented to the recordings through his employment contract and workplace policies. The company said it had informed all its employees about the possibility of workplace surveillance.
Therefore, the key question before the Fair Work Commission was whether Mr McGlashan had sufficient knowledge of the surveillance to render the recordings unlawful.
Worker had requested recordings of company phone lines
At the preliminary unfair dismissal hearing, the Fair Work Commission heard evidence from MSS Security’s National IT Manager. He explained that Mr McGlashan’s had been told several times that his phone line was being monitored.
One key piece of evidence submitted to the Fair Work Commission was an email exchange between Mr McGlashan and an MSS Security IT coordinator. In the email, Mr McGlashan was asked to confirm whether certain landline numbers, including his own, were still required to be recorded. In response, he had confirmed that his phone line should continue to be recorded.
A subsequent email reaffirmed this request, where Mr McGlashan once again confirmed that his phone line was “still fine to be recorded.” These communications played a crucial role in the Fair Work Commission’s findings. Specifically that Mr McGlashan had knowledge of the ongoing phone surveillance.
Another MSS Security employee told the Fair Work Commission that Mr McGlashan had acknowledged that his phone line was being recorded.
Was the workplace surveillance lawful?
Considering all this evidence, the Fair Work Commission found that the phone recordings did not breach the TIA Act. It ruled that Mr McGlashan had sufficient knowledge of the surveillance. Furthermore, had consented to the recording of his phone calls.
It was acknowledged that Mr McGlashan had agreed to the terms of his employment contract. Which clearly outlined the potential for surveillance. Additionally, it was noted that the phone recording stipulation in MSS Security’s policy was sufficient to inform him internal calls could be recorded.
As a result, the Fair Work Commission rejected Mr McGlashan’s argument that the recordings contravened the TIA Act. It also found that the recordings did not breach the LD Act. This was because Mr McGlashan had consented to the use of listening devices to record conversations during the course of his employment.
The Fair Work Commission concluded that “there is no compelling reason as to why this evidence should otherwise be excluded.” It deemed that the recordings were relevant to determining whether Mr McGlashan’s dismissal was justified.
Have you been unfairly dismissed?
If you have concerns about workplace surveillance or any other violation of your rights, call our team today. We at A Whole New Approach are Australia’s leading workplace mediators. If you have been unfairly dismissed, a workplace investigation or faced discrimination or harassment, we can help.
With a private and confidential discussion, our team can guide you through the process of taking action through the Fair Work Commission. We can also help you build the most effective case against your employer. To help ensure you get the result you’re looking for.
Don’t be afraid to call us today on 1800 333 666 for a no-obligation discussion about your situation.
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