September 2005 Special Edition

EMPLOYMENT BRIEFLY

NEW COVERT SURVEILLANCE LAWS – NOTIFY YOUR EMPLOYEES (IN NSW PARTICULARLY)!

From Friday 7 October 2005, the recently enacted New South Wales Workplace Surveillance Act 2005 will come into force, restricting employers from carrying out certain forms of surveillance of employees in the workplace – some of which employers may have previously considered their “right” to undertake.

The “surveillance” covered by the Act extends to use of cameras, internet and email monitoring/blocking or other tracking devices to monitor employee activity. For example, if an employer conducts periodic checks of internet site access by its employees, then this is an act of “surveillance” under the Act. Under the Act, it will unlawful for employers to conduct surveillance of employees at work using camera, computer and tracking devices unless employers have provided written notice to employees at least 14 days before the intended surveillance commences (a lesser period of notice can only be provided where an agreement has been reached with employees to that effect).

Therefore, given that the Act will commence on Friday 7 October 2005, employers of workers in New South Wales who currently conduct surveillance and intend to continue doing so after 7 October 2005 must provide written notice to those employees by no later than Friday 23 September 2005. The penalty for failing to provide such notice will render the surveillance “covert”. Employers who conduct covert surveillance within the meaning of the Act may be liable for fines of up to $5500 per breach.

The Act provides that the notice given to employees must indicate:

The kind of surveillance to be carried out (e.g camera, computer or tracking);
How the surveillance will be carried out;
When the surveillance will start;
Whether the surveillance will be continuous or intermittent; and
Whether the surveillance will be for a specified limited period or ongoing.

Further, notice by email constitutes notice in writing for the purposes of the Act.

In addition to ensuring compliance with the notice requirements, employers are urged to review their existing workplace surveillance policies (including email and internet monitoring procedures) to ensure that they too are compliant with the requirements of the Act.

Whilst these requirements are law only in NSW, it is our view that it is only a matter of time before similar legislation is enacted in other states. For this reason, it may be prudent for such notification to be considered now by employers in jurisdictions other than NSW.

A copy of the Act and its associated regulations can be found at www.legislation.nsw.gov.au.

For further information about issues covered in this article, please contact our Employment Team, Ian Colgrave, Sathish Dasan, Cecilia White, Michael Foley or Sharon Kelsey on 8210 1200

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