When surveillance IS allowed – For each type of surveillance
Camera surveillance¹
Camera surveillance of an employee must NOT be carried out unless:
The following type of equipment is clearly visible where the surveillance is taking place:
the cameras being used for the surveillance,
any camera casings or other equipment that would generally indicate the presence of a camera, and
signs notifying people that they may be under surveillance in that place are clearly visible at each entrance to that place.
Computer surveillance
The general rule - A policy must be in place and understood²
Computer surveillance of an employee must NOT be carried out unless:
a computer surveillance policy - is in place & being followed by the employer, and
understanding & awareness of the policy - the employee:
has been notified in advance of that policy
in such a way that it is reasonable to assume that the employee is aware of and understands the policy.
A special rule - blocking emails or internet access
The special rule³
An employer must NOT prevent (or cause to be prevented) either:
delivery of an email sent to or by, or
access to an Internet website by,
an employee of the employer unless:
the employer is acting in accordance with a policy on email and Internet access that has been notified in advance to the employee in such a way that it is reasonable to assume that the employee is aware of and understands the policy, and
in the case of the preventing of delivery of an email, the employee is given a “prevented delivery notice” as soon as practicable by the employer, by email or otherwise, that delivery of the email has been prevented (unless this section provides that a prevented delivery notice is not required).
Note – penalties apply!
Exceptions to the special rule re: giving a prevented delivery notice⁴
Exceptions that are NOT allowed
An employer’s policy on email and Internet access cannot provide for preventing delivery of an email or access to a website merely because –
the email was sent by or on behalf of an industrial organisation of employees or an officer of such an organisation, or
the website or email contains information relating to industrial matters (within the meaning of the Industrial Relations Act 1996).
Exceptions that ARE allowed
A “prevented delivery notice” is NOT required if the delivery of the email was prevented (whether by operation of a program or otherwise) in the belief that or on the basis that:
the email was a commercial electronic message within the meaning of the Spam Act 2003 of the Commonwealth, or
the content of the email or any attachment to the email would or might have resulted in an unauthorised interference with, damage to or operation of a computer or computer network operated by the employer or of any program run by or data stored on such a computer or computer network, or
the email or any attachment to the email would be regarded by reasonable persons as being, in all the circumstances, menacing, harassing or offensive.
An employer is not required to be given a prevented delivery notice for an email sent by the employee if the employer was not aware (and could not reasonably be expected to be aware):
of the identity of the employee who sent the email or,
that the email was sent by an employee.
Tracking surveillance – of a vehicle or other thing⁵
Tracking surveillance of an employee that involves the tracking of a vehicle or other thing must NOT be carried out unless there is a notice clearly visible on the vehicle or other thing indicating that the vehicle or thing is the subject of tracking surveillance.
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¹Section 11, WS Act
²Section 12, WS Act
³Subsection 17(1), WS Act
⁴Subsection 17(2), WS Act
⁵Section 13, WS Act