Employee’s use of workplace computers is often watched by employers. This is commonly for security reasons or to ensure appropriate behaviour. Legislation in NSW is very specific however, that unless workplace computer surveillance is carried out in accordance with a workplace policy it is unlawful. This includes monitoring internet use or emails.
Workplace Surveillance Policies
The Workplace Surveillance Act 2005 (NSW) provides that a policy must be in place for an employer to undertake workplace computer surveillance. Employees must be given notice of that policy. Commonly, employers include a notice of surveillance in a new employee’s contract. However, if employers are introducing computer surveillance into the workplace they must provide employees at least 14 days written notice.
Under the Act the notice must include:
- the kind of surveillance to be carried out (i.e. computer, camera or tracking surveillance)
- 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.
A written email conveying this information constitutes notice.
Consequences for Breaching the Requirements
Breach of the legislative requirements can carry a fine of up to 50 penalty units (up to $5,500). It is therefore crucial that employers have a comprehensive policy in place and notice is appropriately given to employees if computer surveillance is to be undertaken. It is also important for employees to understand their rights under the Act and to know what information is being gathered by their workplace.