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Employment and Migration Blog

Big Brother in the workplace: Know your rights, and your wrongs

Posted by Lisa Qiu on 28 Jan 2016

Recently outrage was sparked at the Daily Telegraph in the UK when employees came to work to find plastic monitoring boxes attached to their desks. Employees discovered that the boxes were produced by OccupEye and could be used to monitor whether individuals were at their desks. The employees had not been advised that these boxes were going to be installed, nor about their purpose.

If I were to arrive at work to find that my movements were to be monitored in that way, I would feel that my employer had no trust in me and that direct monitoring of time at my desk was both intrusive and missing the point about my work output which is not directly related to time spent at my desk. Is this Big Brother style form of management justifiable in NSW, or would there have been some unlawful infringement of my workplace rights?

Under the Workplace Surveillance Act 2005 (NSW), employers must notify their employees of workplace surveillance, which includes surveillance by cameras, computers (which track and monitor computer use), and also “tracking surveillance”. Tracking surveillance is defined as “surveillance by means of an electronic device the primary purpose of which is to monitor or record geographical location or movement (such as a Global Positioning System tracking device”. So even though this suggests tracking surveillance of the type you would associate with tracking a company vehicle, a device such as the OccupEye would also fall within this definition as its purpose is to monitor movement. 

Overt surveillance is permissible under the Act, provided the employer meets notification requirements. Employers must provide notice to employees at least 14 days before surveillance commences, of 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 for a specified limited period, or ongoing. What if the OccupEye was not readily visible, so that it operated like a bug? Covert surveillance of an employee is only legal if it has been approved by a Magistrate, and would usually only be given where the employer can show a good reason, such as suspected theft or other illegal behaviour, not for general surveillance or supervisory purposes.

If the requirements of the Act are complied with, and advance notice is provided, the surveillance will be legal, but employers still need to consider questions of mutual trust and morale, and how the surveillance will affect the general relationship with employees. Is the monitoring a reasonable request? Is it justifiable and in line with the culture of the company? Is it suitable to deal with whatever issues the employer is attempting to address? If not, it may be time to consider alternative measures. Cameras for security purposes, and computer monitoring for offensive or inappropriate conduct are generally accepted.  Surveillance with Big Brother overtones is not.

If you’re unsure of your rights or if you may be potentially committing a workplace wrong, you should get in touch with our Employment Law team. 

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