ACT Government and private sector employers will need to review their workplace surveillance now that the ACT's new Workplace Privacy Act 2011 is coming into force, or face hefty penalties.

What does the Workplace Privacy Act cover?

The Act, which is similar to the Workplace Surveillance Act 2005 (NSW), regulates three kinds of workplace surveillance:

  • “prohibited” surveillance;
  • “notified” surveillance; and
  • “covert” surveillance.

The parts of the Act dealing with prohibited surveillance came into effect 10 March 2011. The rest of the Act begins on 24 August 2011.

Prohibited surveillance in ACT workplaces

As of 10 March, it is an offence to conduct any form of surveillance in places where there is a heightened expectation of privacy, such as toilets, the sick, bay, a parent’s room, or shower.

If any prohibited surveillance is conducted, the employer is liable for a fine of $5,500 (if an individual) or $27,500 (if a corporation).

What is notified surveillance?

Under the Act, employers cannot conduct surveillance of a worker in a workplace unless written notice has been given and the surveillance is conducted in accordance with the notice. Failure to comply means a fine of $2,200 (if an individual) or $11,000 (if a corporation).

This seems to suggest that even if you already have surveillance, and your employees are aware of it, you will need to go through a notification process to be ready for 24 August.

Employers must engage in a process of notification and consultation before implementing general surveillance in the workplace.

The employer must first write to employees notifying them that their workplace will be subject to surveillance 14 days before the surveillance begins, with various details of the proposed surveillance. This 14-day period is to allow good faith consultation with employees, meaning the worker must have a genuine opportunity to influence the conduct of the surveillance.

Notification may take the form of a generalised surveillance policy or individual notices, or a combination of both. This does not apply to employees that are in a workplace that is not a usual workplace of the employee.

Once surveillance is underway, new employees must be notified of it before they start.

Optical surveillance

Employers are required to ensure video cameras are clearly visible. Signage must be in place at the entrance to the workplace advising that they may be recorded.

Failure to comply means a fine of $2,200 (if an individual) or $11,000 (if a corporation).

Computer surveillance

If employers want to monitor computer usage they must develop a policy on the use of data surveillance. This policy has to outline how data device usage may be monitored (such as internet usage, audits and email content monitoring). The policy must deal with blocked websites and email stoppage. Where a website or the sending of an email is blocked, the employer must notify the worker as soon as practicable.

Failure to comply means a fine of $2,200 (if an individual) or $11,000 (if a corporation).

Tracking devices

Employers are required to place a visible notice on any transport vehicles being tracked by a GPS device. Other devices that are used to track employees (such as smartphones and palm-pilots) must also display a notice.

Failure to comply means a fine of $2,200 (if an individual) or $11,000 (if a corporation).

Limits on what an employer can do with the results of surveillance

The employer cannot disclose the results of the surveillance to anyone other than courts or law enforcement agencies.

Nor can the employer take adverse action based on activities captured by the surveillance records, unless the employer states that this is a possible use in the notification.

If an employer uses or discloses the information contrary to the Act, the fine is $5,500 (if an individual) or $27,500 (if a corporation).

Covert surveillance

The employer can conduct surveillance without the worker’s consent to find out if he or she has engaged in unlawful activity, but only with the consent of a Magistrate, and with strict controls on its conduct and the retention and use of any information gathered.

What do you have to do now?

First, if you’re already conducting surveillance, you need to review where and how it is conducted to ensure you are not conducting prohibited surveillance, as that part of the Act is already in place.

As noted above, the Act seems to suggest that even if you already have surveillance, and your employees are aware of it, you will need to go through a notification process to be ready for 24 August.

You will also need to review your recruitment processes to ensure that your new employees are notified before their starting date.