Many businesses now use CCTV and other kinds of monitoring for safety, security, and public liability reasons. There are a range of state and federal laws and regulations that Australian businesses must comply with regarding the information they collect from these devices.
The Office of the Australian Information Commissioner notes that generally, any business that uses CCTV will need to notify you before you are recorded. This includes employees, contractors, and customers. A business also has obligations to ensure any personal information it records about you is kept secure and is destroyed or de-identified when it is no longer required.
But it isn’t necessarily that simple. Only three states in Australia have specific laws about workplace surveillance. Only NSW, Victoria and the ACT have legislation covering the use of CCTV and even that is limited. The Federal Privacy Act is left to fill in the gaps.
CCTV in the workplace – employees’ rights
Despite what common sense might indicate, privacy legislation does not apply in relation to video monitoring employees in the workplace. However in states with specific laws, surveillance legislation often does.
For example, the NSW Workplace Surveillance Act requires employees to be notified at least 14 days prior to use of CCTV cameras, cameras must be clearly visible, and signs must be in place to advise people entering the premises they may be recorded. Emails are an acceptable method of notifying employees.
In Victoria, the Surveillances Devices Act prohibits video recording (or observation of) a private activity where the person recording is not party to the act, without the permission of each other person involved. It is not an offence however, to record something which is not a private activity. This includes workers on the job in any area of the business where private activity does not take place, (e.g. a change room).
These state-based laws also cover other surveillance, such as GPS monitoring, emails and mobile devices owned by the business.
Research published in the Queensland Law Society Journal says of states where specific legislation does not exist, “the law, especially in relation to Queensland workplaces, still marches behind the technological revolution”. In these states, surveillance legislation does exist but is often device-specific and applies more broadly than in the workplace.
For example, in Queensland the Invasion of Privacy Act prohibits the use of listening devices with respect to private activity but does not cover video surveillance or address their use specifically in the workplace.
In South Australia in 2015, SA Pathology was found to have installed covert cameras to monitor employees it felt were underperforming. An independent investigation found the hidden cameras to be lawful because they did not have the ability to record audio. As a result, they did not breach the SA Listening and Surveillance Devices Act.
Employees are allowed access to CCTV footage used in disciplinary matters
In the event an employee is disciplined or dismissed for events captured by CCTV, a copy of the recording should be made available to them or their lawyer as soon as possible. One case saw a casino employee terminated after actions caught on camera. The Industrial Relations Commissioner said the video clearly showed the actions of the employee, but that the investigation of the event by the business ‘lacked procedural fairness’. At no time prior to the termination was the employee given access to the recording. Employees have the right to request access to any footage used in disciplinary matters.
Video monitoring employees – fixing the “inconsistencies”
Federally, the National Privacy Principles cover how personal information must be handled by businesses. The jurisdiction of these principles is limited, and only applies to certain organisations. The Australian Law Reform Commission notes that “employers are justified in monitoring workplaces for the purposes of protecting property, monitoring employee performance or ensuring employee health and safety”. However, it also notes this needs to be balanced with reasonable expectations of privacy at work.
As a result, the ALRC recommended creating uniform laws across Australia to provide greater protections for employees, and promote certainty for businesses. This is particularly important for businesses who may operate multiple sites across jurisdictions.
As yet, the Federal Government is yet to take any action on unifying surveillance legislation.
