This article was written by John Swinson, Rebecca Slater and Linus Schibler. Thanks to Patrick Gunning, Michael Swinson and Jamie Wells for their contributions.
Workplace surveillance, in various forms, has been common practice for some time (think punch cards and delivery driver logbooks).
However, the way in which such surveillance is conducted is changing. Technology-assisted workplace surveillance is becoming more common in Australia. New technologies offer businesses improved monitoring of their workforce, but may also increase privacy risks for businesses.
Wearable body cameras (or 'body cams') are one way employers are monitoring employee or contracter safety and compliance. These small but visible cameras are worn by employees (usually attached to the employee's chest). The cameras can be used to monitor areas or situations where traditional CCTV is not feasible. For example, on a large construction project, it may be difficult to install CCTV cameras due to the evolving environment and temporary nature of surrounding structures (such as scaffolding).
Dash cameras are another way in which businesses are monitoring employees for safety and insurance purposes. They are small cameras that sit on the dashboard of a car (some versions may also have a secondary camera at the rear end of the vehicle) which record the surrounding area at the front of the vehicle. Some cameras can also record speed and GPS location. In the event of an accident, the camera can provide helpful evidence for any subsequent insurance claim. This is useful for a business that may have a large number of fleet vehicles on the road or on a work site as it provides greater employee safety and mitigates risks in relation to adverse insurance claims.
Workplace surveillance is governed by a mix of State and Federal legislation. For example, the Privacy Act 1988 doesn't specifically cover surveillance in the workplace but it does cover the collection of personal information (including sensitive information) which could occur when conducting workplace surveillance. Some States and Territories have specific workplace surveillance legislation. Others have laws that cover the methods of surveillance instead, such as the installation and use of CCTV cameras.
For the past year, the Queensland Law Reform Commission has been conducting a review of Queensland's laws relating to workplace surveillance and the protection of privacy in the context of emerging technologies.[1]
Monitoring employees or contractors for a legitimate purpose is lawful, provided such employees and contractors have been properly notified of the monitoring activities. A legitimate purpose may include protecting company property or detecting theft, ensuring employee health and safety, or monitoring employee performance and compliance.
We have put together some practical tips to consider when using a new surveillance method such as body cameras or vehicle dash cameras.
Notify those being recorded
Before starting any new surveillance method, employees, contractors and others who may be recorded should be notified that they may be recorded and the purpose of the surveillance. Sometimes it is difficult to all on site, depending on site access and who is likely to be on site. Consider whether notification can be built into the employee or contracter onboarding process. If the monitoring is occurring on a specific site with a defined access point, consider whether notification can be displayed at the entrance to the site.
Obtain consent
It is prudent to obtain consent from employees and contractors. There is a risk that sensitive information will be recorded and collected. For example, if an employee is recording someone and it is clear that the person being recorded has a disability or is of a particular ethnicity or religion, extra care must be taken because this is "sensitive information" under the Privacy Act. Collection of sensitive information requires consent from the person being filmed.
Determine the purpose
Recordings should be made only for a legimate purpose. A legitimate purpose may be workplace safety, training, to determine contract compliance or to prevent theft. The recordings should be made in such a way that they fulfil that purpose and do not unnecessarily record information for a different purpose.
Is there a purpose for recording audio?
When using wearable body cameras or using vehicle dash cameras, consider whether audio capture should be enabled. When recording audio, there is an increased risk of collecting sensitive (or irrelevant) information. A business has no control over the conversations their employees have and often employees will discuss matters that contain sensitive information. Consider whether audio is required in the context of the original legitimate purpose of the monitoring and the increased risk of capturing sensitive information.
Do not use footage for an illegitimate purpose
The footage should only be used for the legitimate purpose it was recorded for. If, at any time, the reason for the monitoring changes, the employees and contractors must be notified of the new purpose for surveillance. Historical footage should not be used for any new purpose.
Have rules about turning the camera on and off
Consider whether the person wearing the body camera has the ability to turn it on and off. It may be considered discriminatory if the employee wearing the camera can choose when or who to record.
Do not retain recordings for longer than necessary
Consider how long the footage should be retained for and implement a business rule to create consistent retention periods. Footage can be retained for longer than this period but only when there is a legitimate business reason for a longer retention period.
Have the ability to easily find and retrieve recordings
The recordings may be the subject of a litigation discovery request or subpoena. It will be burdensome if you have to look at all stored recordings to determine whether a particular person is in the recording. Do not delete recordings that are possibly relevant to a discovery request or subpoena, and turn off system functions that automatically delete recordings after a certain period of time once a discovery request or subpoena is received.
This note does not cover secret or covert recordings. If you are considering secret recordings detailed advice should be obtained as the legal requirements are complex and vary in different States.
[1] The report is due by 30 April 2021. See: https://www.qlrc.qld.gov.au/__data/assets/pdf_file/0005/589514/Amended-Workplace-surveillance-ToRs.pdf
