Workplace Surveillance in NSW: Are you compliant with the legislation?

A recent Fair Work Commission decision over in the ACT allowed MSS Security to use telephone recordings of an employee to defend the employee’s unfair dismissal claim. Their decision hinged on the inclusion of a surveillance clause in the employee’s contract. While ACT based, the case does highlight the importance of understanding your state’s legislation about workplace surveillance so that you can feel protected at work and can raise any concerns you have about privacy and safety.

To understand the case in more detail, here is our summary:

MSS Security Pty Ltd (“MSS”) dismissed Terrence McGlashan (“McGlashan”) from his position after uncovering recorded phone conversations between himself and another employee. The recordings were deemed so extremely offensive by MSS that they dismissed him outright. He then brought an unfair dismissal application to the Fair Work Commission, where he alleged that the recordings were illegally obtained and should not be allowed as evidence.

In 2014, 4 years after he began working for MSS, McGlashan signed an employment contract which included a surveillance clause, advising of surveillance cameras on and around company property, the monitoring of emails, online and location data tracking and the recording of incoming and outgoing calls in some areas of the business. The clause also advised that the surveillance would be ongoing and continuous.

McGlashan argued that the recordings were illegally obtained because while he knew that telephone calls to and from devices not owned by MSS Security would be recorded while at work, he did not know that calls to and from telephones owned or controlled by MSS would also be recorded. He believed that the calls made using the internal landlines were personal telephone calls and were not monitored or recorded. He argued that MSS had breached the Telecommunications (Interception and Access) Act and the ACT’s Listening Devices Act

The FWC held that the recordings were not illegally or improperly obtained as McGlashan had known that his phone was recorded. This meant the Telecommunications (Interceptions and Access) Act had not been breached. As for the ACT’s Listening Devices Act, MSS was found not to have breached the legislation as McGlashan had consented to private conversations being recorded when he signed the contract containing the surveillance clause.

If you are a NSW employer and are wondering how the Workplace Surveillance Act affects you, this is what you need to know.

For NSW employers, the Workplace Surveillance Act 2005 regulates the surveillance of employees at work. For the purpose of the Workplace Surveillance Act, an employee is at work when the employee is at the employer’s workplace (or a related corporation of the employer) whether or not the employee is actually performing work at the time, or at any other place while performing work for the employer (or a related corporation of the employer).

This Act is to ensure that employees are protected and are aware of their rights with workplace surveillance, while they are at work.

Under the Workplace Surveillance Act 2005, an employer:

• Must provide 14 days’ notice before the surveillance commences and the details of the surveillance

• Ensure that surveillance devices are clearly visible

• Ensure that signs notifying people they may be under surveillance are clearly visible at each entrance to the place where the surveillance is taking place

• Cannot carry out, or cause to be carried out, any surveillance of an employee in any changing room, toilet, shower or bathing facility

• Cannot carry out or cause to be carried out, covert surveillance of an employee while the employee is at work unless the surveillance is authorised by a covert surveillance authority

• Must apply to a magistrate for a covert surveillance authority. The magistrate can only issue a covert surveillance authority for the purpose of monitoring unlawful activity in a workplace.

Voice Lawyers can provide best practice guidance and assist with workplace training and policies that comply with the new workplace laws. Our services also include workplace policy training which we can be provided at your business premises.

This article is general in nature and is not legal advice. If you need help with an Employment Law matter and guidance on workplace policies and training, Voice Lawyers hear you and can help you navigate the complexities of the Fair Work Act and workplace relations system with confident, practical advice.

You can contact us on 02 9261 1954 or by email at voice@voicelawyers.com. You can also use the link on our website to book a consultation to speak with one of our lawyers.