It may come as little surprise that Victorian employers have very few restrictions when it comes to surveillance at work, other than those contained in the Fair Work Act 2009 (Cth) and the Surveillance Devices Act 1999 (Vic), to monitor their employee's digital workplace activities.  

Generally speaking, an employer is entitled to monitor, their employee's work email accounts, work phones and online browsing (when such browsing is performed on a work computer). An employer can even monitor an employee's online browsing on their private mobile phone, should that browsing have occurred while the mobile phone was connected to the employer's Wi-Fi signal.

What about CCTV and tracking devices?

The ability of an employer to film their employees is partly limited by the Surveillance Devices Act. While an employer can film the workplace (given that performing work in the workplace would not be considered a private activity), there are some sensible limitations prescribed in law. For example, an employer cannot place cameras or listening devices in toilets, change rooms, washrooms or other showering/bathing facilities.

Should an employer wish to film its workplace, it is preferable that they first obtain the express or implied consent of their employees. Such consent can be obtained by way of a suitably worded clause in a Contract of Employment authorising such monitoring, or possibly the placement of signs alerting people to the existence of cameras.

Much like cameras, an employer can make use of tracking devices when it comes to tracking an employee's movements (such as delivery drivers), as long as the employee who is being tracked has provided their express or implied consent. Again, employers can obtain consent to track by way of a properly worded and legally enforceable clause in a Contract of Employment.

Can I secretly record meetings at work?

With the advent of smart phones, secret recordings of meetings (say, performance or dismissal meetings) by employees are becoming more and more common.

Generally speaking, secretly recording such meetings would not constitute a breach of the Surveillance Devices Act, given that the person conducting the recording is a participant in the meetings, keeping in mind that the Act prohibits the secret recording of meetings by a person who is not a participant in the meeting.

However, should a workplace dispute arise as a result of (or partly a result of) the secretly recorded meeting, it might not always be possible to admit a secret recording to the Fair Work Commission in evidence. This is because some Commissioners in recent times have refused to listen to secret recordings, even when such recordings may be directly relevant to the particular dispute, out of concern that doing so may encourage the recording of such meetings.

Despite misgivings by some, the use of such secret recordings may very well be allowed at law, noting that the Surveillance Devices Act allows such publication where it is necessary for the protection of the lawful interests of the person who made the secret recording.

How can Sharrock Pitman Legal help?

It is important to understand your legal rights when it comes to surveillance at work and any other employment law matters, whether you are an employer or the employee. For expert legal assistance with employment matters, please feel free to contact Accredited Specialist in Commercial Law Mitchell Zadow on 1300 205 506 or complete the form below.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

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