The general rule for employers is that surveillance must not commence without prior notice to the employees affected.
The notice must indicate the kind of surveillance to be carried out, how it will be carried out, when it will start, whether it will be continuous or intermittent, and whether it will be ongoing.
There are also additional requirements depending on the type of surveillance. For example cameras must be clearly visible and have a sign notifying people that they may be under surveillance in that place.
An employer must not carry out, or cause to be carried out, surveillance in a change room, toilet facility, shower or other bathing facility at a workplace and must not conduct surveillance using a work surveillance device when the employee is not at work.
The only circumstances in which an employer can conduct surveillance on an employee without prior notice is if there is reason to suspect unlawful activity. The employer may apply to a Magistrate in the Local Court for an order allowing them to conduct covert surveillance.
An employer cannot disclose the surveillance of an employee (other than authorised covert surveillance) unless that use or disclosure is for a legitimate purpose related to: the employment, legitimate business activities or functions of the employer; disclosure to a law enforcement agency for use in connection with the detection, investigation or prosecution of an offence; disclosure for a purpose that is directly or indirectly related to the taking of civil or criminal proceedings; or use or disclosure that is reasonably believed to be necessary to avert an imminent threat of serious violence to persons or of substantial damage to property.
If an employer conducts surveillance of an employee without prior notice to the employee they can have penalties imposed against them by the Local Court. The employee will also not be able to rely upon that surveillance in any workplace investigation.
If an employer currently had their employees under workplace surveillance or is considering commencing the surveillance of their employees they should immediately seek legal advice.
If you, your family or friends wish to enquire about a similar circumstance, please email us on our "Ask Us a Question" feature or call (02) 4228 8288 to speak to one of our specialist family lawyers.