Can Employers Monitor Employee Use of Company Property?

While an employer has a right to monitor employee use of company property (such as work computers), there are limits to what the monitoring of employees can look like.

And while there can certainly be benefits to monitoring employee behaviour (e.g. assisting with workplace law compliance), there are also a number of privacy considerations that need to be taken into account.

In this week’s Akyra blog, we examine the use of surveillance in the workplace, and highlight the key points employers need to be aware of.

Surveillance and Privacy Considerations

In the first instance, the Privacy Act has 13 legally binding principles (Australian Privacy Principles (APPs)) that relate to the collection, use, disclosure and storage of personal information and applies to Australian government agencies and all private sector organisations.

An exemption to the Privacy Act applies to private sector organisations when handling employee records relating to current or former employees and their employment relationship or records. An employee record or personal information includes employee:

• health information
• engagement, training, disciplining or resignation
• termination of the employment
• terms and conditions of employment
• personal and emergency contact details
• performance or conduct
• hours of employment
• salary or wages
• membership of a professional or trade association
• trade union membership
• leave entitlements
• taxation, banking or superannuation affairs.

However, an employer who conducts surveillance or monitors their staff must follow any relevant Australian, state or territory laws. This includes laws applying to the monitoring and recording of telephone conversations.

Generally, state laws cover the installation and use of CCTV, and some states also have specific workplace surveillance laws.

It may be reasonable for an employer to monitor some activities to ensure staff are doing their work and using resources appropriately. As long as employees are aware that this monitoring is or may be undertaken, then there is no issue with monitoring. 

If an employer keeps a record of their monitoring then the Australian Privacy Principles may apply – e.g. a CCTV video recording or a computer record of emails that doesn’t directly relate to your employment.

Then each State has laws that address the installations and use of CCTV while some States also has specific workplace surveillance laws.

Existing State and Territory-Based Surveillance Laws

The most comprehensive Australian laws which specifically regulate workplace surveillance are in New South Wales and the Australian Capital Territory.

In NSW, the Workplace Surveillance Act classifies all overt surveillance as unlawful unless employers provide 14 days’ notice before the surveillance begins. Furthermore, the overt surveillance notice must contain details explaining what equipment will be tracking the employees, when the surveillance occurs and any other applicable details.

In the Australian Capital Territory, employers who plan on using a surveillance method covered by the Workplace Privacy Act 2011, must first give 14 days’ written notice of the intended surveillance to any affected workers. The notice must address:

• details of the planned surveillance; and
• invite workers to consult with the employer as to the proposed method for conducting the surveillance.

Also in the Australian Capital Territory, regulation of listening devices is through the Listening Devices Act 1992.

The laws in NSW and the ACT limit the use of surveillance devices in the workplace by prohibiting employers from carrying out or causing to be carried out, any surveillance of an employee in a:

• change room;
• toilet facility; or
• shower or bathing facility.

The ACT goes further to prohibit the use of surveillance devices in the workplace:

• parent or nursing rooms;
• prayer rooms;
• sick bays; and
• first aid rooms.

South Australia, Tasmania, Western Australia, the Northern Territory and Queensland do not currently have specific workplace surveillance laws in place.

Review of the Act

The Australian Government is currently reviewing and considering reforms to the Privacy Act, following its response to the proposed changes released on 28 September 2023. Based on some recommendations, it is possible the ‘employee records exemption’ may be subject to reform as part of this review. We’ll keep a watch on this space.

Key Takeaways