Are you under surveillance at your workplace? Wherever you work – whether at a law firm, in-house or in government – there are laws that that govern the ability of an employer to conduct surveillance of its employees. Are your work phone calls monitored, or even recorded? What about your email traffic? Does your employer know right now that you are reading this article?
These are important questions, and increasingly frequently the answer is yes. While monitoring of staff emails and website traffic is hardly novel, the pandemic-induced switch to working from home prompted a surge of interest in tech-enabled monitoring of employees. It is therefore timely to recap when such surveillance is legal. What do staff need to be told before being surveilled? Are there circumstances in which surveillance is unlawful?
These questions sometimes arise in unfair dismissal cases, where an employer seeks to rely on evidence obtained through surveillance. The Fair Work Commission recently considered relevant principles in McGlashan v MSS Security Pty Ltd, which is subject to appeal.[1] This Article will begin by sketching out the regulatory framework in the Australian Capital Territory, before considering McGlashan as an illustrative example. We will then note relevant principles deriving from other cases, before concluding by contemplating further developments in the space.
Of course everything that follows should be read in conjunction with a caveat. Just because the law permits surveillance of staff in appropriate circumstances, and sometimes the Fair Work Commission might allow such evidence to be used in proceedings, this should not be taken as complete licence for intrusive workplace surveillance. Where necessary and proportionate to an employer’s needs, monitoring of phone calls, internet traffic and email content might be reasonable. But in a tight labour market, employees might vote with their feet if they feel their workplace has become too Orwellian.
There are a few elements to the legal framework governing the use of workplace surveillance in the ACT. First, federal law – specifically the Telecommunications (Interception and Access) Act 1979 (Cth) (‘TIA’) – provides that ‘[a] person shall not: (a) intercept; (b) authorize, suffer or permit another person to intercept; or (c) do any act or thing that will enable him or her or another person to intercept; a communication passing over a telecommunications system.’[2] However, critically, interception of communication is defined as taking place ‘without the knowledge of the person making the communication.’[3] In other words, where a party is on notice of the interception, it is not prohibited.
Second, the Listening Devices Act 1992 (ACT) (‘LDA’) provides that ‘[a] person must not use a listening device with the intention of— (a) listening to or recording a private conversation to which the person is not a party; or (b) recording a private conversation to which the person is a party.’[4] This prohibition is though significantly qualified. The prohibition does not apply where ‘the use of a listening device under an authority granted by or under a law in force in the ACT’.[5] Furthermore:
(3) Subsection (1) (b) does not apply to the use of a listening device by, or on behalf of, a party to a private conversation if—
(a) each principal party to the conversation consents to that use of the listening device; or
(b) a principal party to the conversation consents to the listening device being so used, and—
(i) the recording of the conversation is considered by that principal party, on reasonable grounds, to be necessary for the protection of that principal party’s lawful interests; or
(ii) the recording is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to any person who is not a party to the conversation.[6]
So, legal authorisation, consent or a reasonable grounds for protecting an employer’s lawful interests are all sufficient to avoid the prohibition in the LDA.
The third part of the legal framework is the Workplace Privacy Act 2011 (ACT). This provides that an employer ‘may only conduct surveillance of a worker in a workplace if— (a) the employer gives written notice to the worker under this section; and (b) the surveillance is conducted in accordance with the notice.’[7] Notice must be given, of at least two weeks, and employers must consult with employees about the introduction of surveillance measures, for a specified time period (also two weeks), and in good faith.[8] The notice requirement is waived for new employees, provided they are notified before starting work.[9] There are also additional requirements for optical surveillance devices (such as CCTV), data surveillance devices (say computer logging) and tracking devices (such as a car tracker).
The legislation is also prescriptive about the content of the notice (which, it provides, ‘may be in the form of a policy of the employer or otherwise’). To be valid, the notice must state:
(a) the kind of surveillance device to be used for the surveillance; and (b) how the surveillance will be conducted; and (c) who will regularly or ordinarily be the subject of the surveillance; and (d) when the surveillance will start; and (e) whether the surveillance will be continuous or intermittent; and (f) whether the surveillance will be for a stated period or ongoing; and (g) the purpose for which the employer may use and disclose surveillance records of the surveillance; and (h) that the worker may consult with the employer about the conduct of the surveillance.
Employers wishing to undertake workplace surveillance in the ACT must, then, comply with these requirements.
Adherence to these requirements is not only relevant to avoid liability (failure to comply with some provisions can constitute an offence), but is also helpful in being able to rely on evidence obtained via surveillance in employment litigation. The recent case of McGlashan, determined by Deputy President Dean last December, is a useful restatement of principle.
The Applicant worked at a security firm. During an investigation unrelated to the applicant, the respondent became aware of telephone recordings in which the Applicant made ‘extremely offensive’ comments to other employees.[10] He was subsequently dismissed. In commencing unfair dismissal proceedings, the Applicant contended that the recordings were ‘illegally or improperly obtained’ and should, therefore, be excluded from evidence. The applicant sought an advance ruling on admissibility.
The Applicant had commenced employment in 2010. In 2014, he signed a revised employment contract which contained a clause entitled ‘Surveillance in the Workplace’. It provided:
The Company gives you notice that surveillance may take place while you are at work through camera, computer or tracking surveillance. Such surveillance may be carried out by any of the following means: fixed cameras that monitor or record visual images of activities at premises or within or near Company vehicles; software or other equipment that monitors or records the information input or output, or other use, of a computer (including the sending and receipt of emails and the accessing of Internet websites); and/or electronic devices that monitor or record geographical location or movement (including devices such as global positioning system tracking devices, hand held terminals, mobile phones and/or access control cards); and telephone voice recordings for incoming and outgoing calls in some areas of the business.
This surveillance will have commenced at the date of your employment on an ongoing and continuous daily basis. Such surveillance is undertaken while you are at work for the purposes of quality control and ensuring the security of the workplace and persons in it and the surveillance of any employee will be secondary to that purpose. You agree that you have been given sufficient notice of the intended surveillance.
Additionally, in late 2021 the employer had promulgated a new workplace policy which noted that workplace surveillance might include ‘audio recording of telephones at some of the MSS Security work locations.’[11]
The Applicant conceded that he had knowledge of the recording of external calls. However, he contended that he was not on notice that ‘internal telephone calls would be intercepted or recorded by the Respondent.’ He therefore argued that the recordings were contrary to the TIA and LIA.
These arguments were rejected in short order by Deputy President Dean. The respondent had tendered emails indicating that the applicant knew the phone was recorded, with no evidence of any division between internal and external calls. This was sufficient for the purposes of the TIA. Equally, the contract and policy were sufficient evidence of consent for the purposes of the LIA, such that it was held ‘the Applicant consented to the use of a listening device to record what would otherwise be a private conversation.’[12]
Accordingly, Deputy President Dean ordered that the evidence obtained through surveillance was admissible. The Fair Work Commission is not required to strictly adhere to the rules of evidence, but will nonetheless consider issues relating to admissibility: ‘It is uncontroversial that the Evidence Act 1995 (Cth) does not apply to the Commission, however this is not a licence to ignore the rules.’[13] As the recordings had clear probative value and the question of illegality had been addressed, the Deputy President concluded that there was ‘no basis in my view to deprive the Respondent of key evidence aimed at proving the conduct for which the Applicant was dismissed.’[14]
The Applicant has appealed, which may provide further helpful consideration of these issues. Otherwise, the case will proceed to a hearing on the merits.
McGlashan is not the first time the Fair Work Commission has confronted these issues. While its significant discretion around admitting evidence provides some latitude, there have been cases where secret evidence was not accepted into evidence. In Kelly Walker (No. 2), for example, Deputy President Sams declined to admit a secret recording on the basis that he was ‘not satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting it.’[15] This was so despite not reaching a firm view on illegality: ‘It must be stressed that the Commission does not have the jurisdiction to determine whether a secret recording was obtained unlawfully under the SD Act … These are matters for the Courts of competent jurisdiction.’[16]
In Markovitch v Krav Maga Defence Institute Pty Ltd,[17] at first-instance Commissioner Riordan refused to admit CCTV evidence that was captured contrary to the requirement of the equivalent workplace surveillance regime in New South Wales. The Commissioner observed:
[27] When attending for work, every employee has a right and expectation that [their] employer will abide by the law.
[28] The breach of safety, as alleged by the Respondent, is not of sufficient magnitude to warrant a determination to override the provisions of the Workplace Surveillance Act. …
[29] The Respondent’s decision to terminate the Applicant was based on evidence obtained from the CCTV recordings of the gym. These recordings were not conducted in accordance with the NSW Workplace Surveillance Act 2005. This means that the recordings were obtained illegally. As a result, the Respondent has no evidence to infer that a serious safety incident has occurred. Therefore, the provisions of the Small Business Code have not been met.
On appeal, the full bench reversed the decision not to admit the evidence and remitted the matter. It reached this position on the basis that Commissioner Riordan had, in effect, automatically excluded the evidence having reached the view it was inadmissible. The full bench considered this to be an error of law: ‘[m]ost notably, he was not bound to automatically exclude the CCTV footage, because it was, in his view, obtained unlawfully.’[18]
These decisions underscore the latitude given to the Commission, as a tribunal not bound by strict rules of evidence. But they also emphasise the desirability of getting it right in the first place and not being drawn into such arguments over admissibility.
Employers wishing to undertake surveillance of their staff – recording phone calls, capturing CCTV or monitoring internet usage – need to comply with a multi-faceted framework. Broadly-speaking, workplace surveillance is permissible provided employees consent through their employment contract or policies. Adherence to notice and other requirements is essential, to avoid liability and ensure evidence captured through surveillance can be used in employment litigation.
Albeit arising in a different context, another recent Fair Work Commission decision provides a helpful reminder when it comes to workplace surveillance. In Al Bankani v Western Sydney Migrant Resource Centre Ltd,[19] the Applicant was dismissed after deleting data on a work-phone, contrary to workplace policy. Deputy President Easton found that the policy breach was a valid reason, but the dismissal was nonetheless unfair – and ordered reinstatement.
The Deputy President was particularly critique of the legalistic policy, observing that its terminology ‘is legalistic, complex and more commonly found in a commercial or government contract than in a document used by workers in a migrant assistance agency. [The relevant clause] might make sense to copyright lawyers and some IT specialists, but probably no one else.’[20]
Accordingly, notwithstanding the breach of its ‘literal terms’, the policy was found to be ‘too complicated for its context and bore little connection to the procedures initiated and/or tolerated by managers.’[21] Employment policy documents must be, Deputy President Easton continued, ‘be accessible, understandable and reasonable in their terms.’[22] Words of wisdom – whether drafting workplace surveillance notices or another policy. But as we have canvassed, in the surveillance context, the policies are particularly important. Approach with care.
John Wilson is the managing legal director at BAL Lawyers. Kieran Pender is an honorary lecturer at the ANU College of Law and a consultant at BAL. The views expressed here are their own. They acknowledge the research assistance of Jacinta Moss-Pinch.
The above article was written for and published in Ethos -Law Society of the ACT Journal.
For all employment related queries or concerns, please contact our Employment Law & Investigations team at BAL Lawyers.
[1] [2022] FWC 3304 (21 December 2022) (‘McGlashan’).
[2] Section 7.
[3] Section 6.
[4] Section 4(1).
[5] Section 4(2).
[6] Section 4(3).
[7] Section 13(1).
[8] Section 14.
[9] Section 13(3)(c).
[10] [2022] FWC 3304 (21 December 2022) [2].
[11] Ibid [7]–[8].
[12] Ibid [15]–[30].
[13] Ibid [31].
[14] Ibid [32].
[15] [2019] FWC 4862 (18 July 2019) [68].
[16] Ibid [52].
[17] [2018] FWC 6114 (18 October 2018).
[18] [2019] FWCFB 4258 (19 June 2019) [46].
[19] [2023] FWC 557 (7 March 2023).
[20] Ibid [122].
[21] Ibid [150].
[22] Ibid [154].