Is the company legally allowed to monitor employees activities during non work hours locations and activities?

In simple terms, it is legal for your boss to monitor and track your work-related tasks and performance while at work; whether working from home or on site. However, employers do not have unrestricted rights to conduct surveillance on an employee’s use of the employer’s (or the employee’s) communication devices.

An employer might deploy surveillance devices for justifiable purposes such as:

• to protect assets;
• ensure employee safety;
• detect fraud or theft;
• monitor quality control; and
• monitor employee behaviour.

However, these objectives need to be balanced against the employees’ and/or customers’ right to privacy.

There's no general right to privacy in Australia. Instead, there's a complicated web of federal, state and territory laws. Employee monitoring is also subject to these laws and the various rules that regulate surveillance of employees can be very complicated.

Various forms of employee surveillance and monitoring have been used in physical workplaces for many years. Now, with the effects of the pandemic, there is an increase in people working from home. Anecdotal evidence suggests a great number of employers are increasingly looking to use technology to check employees and to install surveillance tools which are now also reaching into homes. The potential for this activity to grow over the coming years is something all workers who may work from home, need to be aware of.

Industrial awards/agreements, I'veand work policies and procedures may contain provisions relating to workplace surveillance and should be carefully checked before surveillance is commenced or any adverse action is taken against an employee because of information collected through monitoring or surveillance.

How do employers carry out surveillance?

Employers use a range of technologies to monitor how, when and where their employees are working, including:

• CCTV cameras;
• GPS tracking;
• computer applications that monitor employee use of technology such as computers and mobile phones;
• devices which measure biometrics (eg, fingerprinting or facial recognition software);
• mobile phone “location tracking” applications; and
• Technologies for fleet management – eg, work vehicles that are fitted with speed, GPS and direction capturing software.

Federal laws for surveillance in the workplace

Unfortunately, there is no consistent set of laws operating across jurisdictions in Australia which regulate monitoring and surveillance of the workplace.

At the Commonwealth level, the Telecommunication (Interception) Act 1979 (Cth) prohibits any person from intercepting a communication passing over a telecommunications system. The Privacy Act 1988 (Cth) also has some application where the information being collected, used or disclosed is personal information.

Otherwise, for the most part, surveillance in the private sector workplace is regulated by the industrial laws of each state and territory.

State and territory-based surveillance laws currently in place

The most comprehensive Australian laws which specifically regulate workplace surveillance are in New South Wales and the Australian Capital Territory. In NSW, it is the Workplace Surveillance Act 2005 (NSW) and in the ACT, it is the Workplace Privacy Act 2011 (ACT).
In NSW, the Workplace Surveillance Act classifies all overt surveillance as unlawful unless employers provide 14 days’ notice before the surveillance begins.

Furthermore, the overt surveillance notice has to contain details explaining what equipment will be tracking the employees, when the surveillance occurs and any other applicable details.

In the Australian Capital Territory, employers who plan on using a surveillance method covered by the Workplace Privacy Act 2011 (ACT), must first give 14 days' written notice of the intended surveillance to any affected workers.

The notice must address:

• details of the planned surveillance; and
• invite workers to consult with the employer as to the proposed method for conducting the surveillance.

In the Australian Capital Territory, regulation of listening devices is through the Listening Devices Act 1992 (ACT).

The laws in NSW and the ACT limit the use of surveillance devices in the workplace by prohibiting employers from carrying out or causing to be carried out, any surveillance of an employee in a:

• change room;
• toilet facility; or
• shower or bathing facility.

The ACT goes further to prohibit the use of surveillance devices in the workplace:

• parent or nursing rooms;
• prayer rooms;
• sick bays; and
• first aid rooms.

Disclosure and use of surveillance records is specifically regulated in NSW and the ACT.

South Australia, Tasmania, Western Australia, the Northern Territory and Queensland do not currently have specific workplace surveillance laws in place.

Conclusion

The use of surveillance in the workplace has legitimate benefits to both workers and employers and can be useful in assisting with compliance with workplace laws. However, employers and workers need to be aware of the differing laws across the states and territories as well as any other agreed or contractual restrictions on the use of employee surveillance tools which may be specific to their workplace.

Employers need 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. For example, they may choose to engage more surveillance of employees working from home as opposed to those working on site.

Employers should be transparent about the introduction and use of surveillance.

Get help

If you have any concerns about employee surveillance and monitoring programs that have been introduced at your workplace, please contact us for advice and assistance.

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114
Email:

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  This article relates to Australian law; either at a State or Federal level.

The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances. For further information, please do not hesitate to contact Hall Payne Lawyers.

A full-time job can take a lot out of a person. For some people, 40 hours a week is just the beginning. So with work being such a huge part of our life, it’s nice to enjoy the time outside of work; our own time. So how much control, if any, can an employer have on your off-duty activities?

First of all, government and public entity employees do have constitutional rights to privacy. Their employers must follow strict rules that limit the monitoring and inquiring of their employee’s off-duty activities. The private sector must also abide by different rules regarding employee privacy, but it varies a bit more from state to state.

Some people wonder why an employer would even care what their employees are doing, as long as it’s not affecting their ability to work. There are quite a few reasons why an employer would worry about their employees off-duty behaviors, including; bad health habits increasing healthcare costs, dating a competitor and releasing proprietary information, or any activities that affect their employees’ productivity like a second job or an energy-consuming hobby. So what exactly can your employer monitor or restrict?

Working a second job – Working a second job is almost always legal and your employer has no authority in banning you from doing so. Your employer can, however, set guidelines for after-hours work that conflict with their own business interests. An employer does have the right to set guidelines to guarantee your allegiance and dedication to your primary job. Some of these guidelines can include; not allowing an employee to work for their competition, not allowing paid time off to be used for outside employment, and not allowing the use of their tools or equipment for outside work.

Union Involvement – This one is very simple and clear; an employer cannot monitor or control any of their employees union activities whatsoever, by rule of the National Labor Relations Act.

Fraternization – While it used to be standard procedure to forbid dating and fraternization among coworkers, these kinds of policies have become controversial. Generally the courts will side with employers, since there is a very real possibility of work performance suffering or being adversely affected. However, state laws prohibiting marital status discrimination and gender discrimination can make these policies difficult to enforce, not to mention you could lose good employees who choose to maintain their relationship over their job. For these reasons, many companies have moved to a more general rule of prohibiting supervisor/subordinate relationships, which will obviously affect the work relationship and can lead to unfair treatment of employees.

For more information on your employment rights, follow us at our San Antonio employment law attorney blog.

About the Author: Jeff Davis is the Owner of the Davis law firm and a highly experienced San Antonio employment law attorney. To find out more information about a San Antonio employment lawyer, please visit www.jeffdavislawfirm.com.