In July of this year, the NSW state government introduced the Workplace Surveillance Act 2005.
The act covers three areas of activity: camera surveillance, tracking surveillance (monitoring the location or movement of an employee), and, perhaps most importantly, computer surveillance.
It is the last area of activity that undoubtedly will attract the most attention.
During recent years, there has been increasing conflict between employees who wish to protect the privacy of any emails that they may receive, and employers who are keen to ensure that employees receive emails only of a business nature.
Technological advances have permitted small tracking devices to capture every work typed into a computer.
One of the primary objectives of the new act is to ensure that employees are made aware of any surveillance that is undertaken.
The act prohibits the blocking of emails sent to or by an employee, and Internet access by an employee, unless the employer is acting in accordance with the employer’s email and Internet-access policy, as notified to the employee, and the employee is notified as soon as practicable that an email has been blocked.
An employer is entitled to protect the workplace from unlawful activity but in doing so must not encroach unjustifiably on the privacy of employees.
To protect itself, an employer should consider the following:
n Reviewing its IT policies and setting clear rules for employee use of IT systems.
n Properly communicating those policies to staff.
n Using log-in notifiers to signal to and gain consent from employees that their email and Internet use may be monitored.
The rules for employee use of IT systems should clearly outline acceptable usage and define any surveillance that will be undertaken. They should also specify when Internet or email access will be blocked.
The proper communication of those rules to employees should preferably include obtaining written acknowledgement from them confirming that they have read and understood those rules.
With increased use of emails and the Internet, the establishment and acceptance of clear and precise rules will hopefully help reduce the amount of conflict between employers and employees.
So far as surveillance of an employee is concerned, this can only be undertaken with at least 14 days’ prior notice in writing being given. The act does however prohibit any surveillance in certain areas, including a change room, toilet facility and in other circumstances.
Barrie Goldsmith is the principal of Australian Travel and Tourism Lawyers. Contact him on 02 9233 4702 or at goldlaw@bigpond.com
