12 most asked questions on Australian employee monitoring laws

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As the concept of a digital workforce continues to evolve, there’s no longer a question of the need to incorporate employee monitoring software into the workplace. It is in the company’s best interest to keep a close watch on activities in the workplace. That said, some jurisdictions in Australia have enacted laws that govern how and to what degree employers can monitor their employees. For instance, New South Wales (NSW), the Australian Capital Territory (ACT) and Victoria have laws guiding how employers can effectively monitor their employees and stay on the right side of the law.

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1. Is employee monitoring legal in Australia?

Yes. Under the Australian Workplace Surveillance Act, an employer may monitor employees in the workplace if a formal notice and monitoring policy is in place. Under the condition, the monitoring is conducted per the given notice. There are also exceptions where employees can be monitored without being informed. To do so, employers are required to obtain a “covert surveillance authority,” which has explicitly been issued by the Magistrate court.

2. Is it legal to monitor the company’s computers?

Yes. For the most part, an employer in Australia is within their rights to install any monitoring software on a computer that they have provided for work. What employers are not permitted to do is install monitoring software without informing their employees. That said, what is to be monitored, needs to be drafted and explained to each employee in a way they understand. This should be done no less than 14 days before any monitoring software is installed or activated.

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3. Is it legal to monitor screen contents and keystrokes?

Yes. Employers have the right to monitor screen activities and keystrokes on company-owned computers, but on the condition that employees get a notification before the monitoring and purpose of the monitoring.

4. Is it legal to monitor employee internet and social media activities?

Yes. This is legal in Australia. However, The law requires that clear policies on the use of the internet in the workplace should be established to ensure that employees understand the expectations and responsibilities that apply to internet use. Employers are also obligated to discuss with employees about the policy during the policy’s development. This will help increase employees’ awareness.

5. Is it legal to monitor email content?

Yes. Generally speaking, in Australia, an employer is entitled to monitor their employee’s work email accounts provided this is under their policies or procedures. Also, there are work-related reasons behind the monitoring. Employers are to set clear workplace policies that can help ensure that both employees understand the expectations and responsibilities that apply to receive and send emails on company devices.

6. Is it legal to monitor or record phone conversations?

Yes. But, on the basis that the conversation is not considered private, the parties concerned are aware of it, and consent is given. There are, of course, specific prohibitions to monitoring and recording phone conversations. The general privacy and surveillance laws prohibit listening in (in Victoria and the Northern Territory) or recording a private conversation without the parties’ permission or consent. There is also federal legislation that regulates the monitoring of telephone communications in the workplace, including mobile phones.
The Telecommunications (Interception and Access) Act 1979 prohibits listening to or recording communications passing over a telecommunications system without the consent or knowledge of the parties to the communication.

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7. Is it legal to use video monitoring systems in the workplace?

Yes. An employer in Australia can monitor employees with video monitoring systems in the workplace for legitimate business purposes, but there are reasonable limitations given by law. The Surveillance Devices Act (1999) restricts the employer’s right to use video surveillance systems in areas deemed private, such as toilets, washrooms, changing rooms, and lactation rooms. Employers should pay attention to different laws across the States and Territories in this area, as well as any other rules and regulations on the use of monitoring systems in the workplace. Employers should also be transparent about the type of monitoring.

8. Is it legal to monitor private messages and email content?

Yes. According to the Citizens Advice Bureau, employers “have the right to keep a close watch on activities carried out on work devices. This includes private emails in situations that the need may arise (this is justifiable for productivity checks and threat detection). Generally speaking, if the employer owns the device and the network, the employer can access workers’ inbox. Provided the workplace has a clear policy in place that explains the proper use of work equipment and employees are aware of the policy. If the employee’s emails are to be monitored, the employer must inform them in advance (e.g., via a policy), and this should only happen in compliance with company policy.

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9. Is it legal to monitor employees’ personal devices?

Yes. As long as employers create and convey sound (BYOD) Bring Your Own Device policies that clarify work-related reasons for monitoring employees on their personal devices and acknowledging that the policy has been understood, the law permits the monitoring.

10. Is it legal to monitor employees’ personal computers?

Yes. Under specific conditions (where BYOD policies are in place, and employees are aware and consent to the monitoring, an employer can collect data on a computer belonging to an employee within company premises.

11. Is it required to inform employees of the monitoring?

Yes. It is required to communicate with employees about what kind of monitoring will be used when the monitoring will start, the nature of the monitoring whether the monitoring will be for a specific time or ongoing. Also, the Workplace Surveillance Act (2005) stipulates that an employer may NOT monitor employees without prior written notice. The written notice must be provided at least 14 days before the monitoring starts.

12. Employee monitoring policy – Mandatory or not?

Yes. n Australia, employers must set up policies regarding the use of monitoring software to comply with legislation. Employers are to discuss policies with employees when creating them and regularly review them to increase employees’ awareness about the monitoring. It is recommended that all workplace policies regarding employee monitoring should:

  • Clearly explain how devices should be appropriately used at work.
  • Outline what personal use of company property is prohibited.
  • Refer to any applicable legislation regarding use and access.
  • Outline what employee information is taken and who has access to the data.
  • Plainly explain how the company intends to monitor employees with and the purpose behind the monitoring.
  • Outline potential consequences for misuse of company.
  • Also, policies should be reviewed regularly and revised whenever significant changes are made». (‘Email and Internet Monitoring/Video and Physical Surveillance’ by Morrison & Foerster LLP, ‘GLOBAL EMPLOYEE PRIVACY AND DATA SECURITY LAW’)

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Are there laws in Australia that protect employee workplace privacy?

Yes. An employer must follow any relevant Australian, state, or territory laws when monitoring employees. Although the Federal Privacy Act of 1988 doesn’t specifically cover monitoring in the workplace. This law is designed to promote the protection of individuals in Australia by imposing obligations on those collecting and handling personal information to manage it responsibly and keep it secure.

Is there professional lawyers’ advice on monitoring?

Yes. Lawyers advise employers to take note of the different laws relating to this field across the states and any other restrictions on the use of monitoring software in the workplace.

  • Employers must ensure the employee monitoring process is as transparent as possible by establishing monitoring policies that will help employees understand their rights and obligations concerning monitoring.
  • Employers must provide written notice to their employees. The notice should specify what type of monitoring is introduced, and what the monitoring software will be used for.
  • If specific places are recorded by video, there should be a notice informing employees that they are being recorded.
  • Employers may not covertly listen in or record private conversations without seeking legal advice specific to their jurisdiction and circumstances surrounding the monitoring.

What is the bottom line?

In Australia, the Privacy Act does not exactly cover the issue of monitoring in the workplace. Still, the most general laws in New South Wales (NSW) and the Australian Capital Territory (ACT) aim to balance the need for security and safety in the workplace with an employee’s right to privacy. According to the Office of the Australian Information Commissioner(NSW), employee monitoring is usually permitted as this ensures that employees are performing their duties and using work equipment appropriately. As such, if employers intend to monitor employees’ use of email, the internet, and other computer devices, consent is required.

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New South Wales employee monitoring Laws(Simplified)

In New South Wales, the Workplace Surveillance Act 2005 (NSW) and the Surveillance Devices Act 2007 (NSW) provide legal regulations for employers to monitor and record their employees. Balanced against this are the employees’ rights to get notified on the kind of monitoring, when the monitoring will commence and duration prior to monitoring. Employers can covertly monitor employees only with “covert surveillance authority” from the court.
Workstations/ company devices: Employers should provide written notice to the employees at least 14 days before the monitoring commences. The written notice must be in a particular form and provide ample information on the type and duration of monitoring.
Video monitoring system: Similar written notice provisions apply for camera surveillance, and cameras must be placed in clearly visible areas within the workplace. Privacy restrictions apply, in that, an employer must not carry out any surveillance of an employee of the employer in any change room, toilet or shower, or other bathing facilities at a workplace.
Phone monitoring or recording: Concerning listening devices, this area can be challenging to implement within the bounds of the law, given the strict prohibition on the record of private conversations, although exceptions apply within some industries. All employers considering the use of workplace surveillance should seek legal advice before doing so.

Victoria employee monitoring laws(Simplified)

An employer in Victoria can legally monitor employees for work-related reasons. That said, certain actions should be taken to ensure that employees are informed, and privacy is respected. The legislation governing workplace monitoring in Victoria is the Surveillance Devices Act 1999 (Act).
Workstations/ company devices: In Victoria, employers must provide employees with adequate information on the type and duration of monitoring. By creating detailed workplace policies, employees can understand what the monitoring entails.
Video monitoring system: An employer must obtain consent from their employees. Such permission can be obtained through a clear policy in the contract of employment, authorizing the monitoring, or possibly the placement of signs alerting people to cameras’ existence. The Surveillance Devices Act 1999 (Vic) also prohibits using video monitoring systems in toilets, washrooms, change rooms, and lactation rooms.
Phone monitoring or recording: Phone interception in Victoria is also covered by the Federal Telecommunications (Interception) Act 1979. The law prohibits the listening or recording of private phone conversations without the parties’ consent, although exceptions may apply within certain industries. All employers considering this type of monitoring should seek legal advice before doing so.

Disclaimer
The information provided in this article is for general understanding only and not to be used as legal advice. To receive professional legal advice, please consult your lawyer.

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