Workplace surveillance – Which definitions apply?

Workplace surveillance laws apply to particular types of surveillance "of employees at work". So, for the purposes of these laws, who is an "employee" and when are they "at work"?

The definition of ‘employee’

Business owners need to be aware that the workplace surveillance laws adopt the NSW definition of ‘employees’¹, which:

• includes certain types of contractors, such as labour only and substantially labour only contractors, and

• extends to

  • other arrangements such as volunteers and payment by commission, and

  • employees of a related corporation².

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Be aware! A person employed or engaged by his or her:

• spouse,

• de facto partner, or

• parent,

is not an ‘employee’ for the purposes of this Act.

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Being ‘at work’

Under WS laws, an ‘employee’ is ‘at work’³ when the ‘employee’ is at:

• a ‘workplace’ of the employer (or a related corporation of the employer) whether or not the employee is actually performing work (as an employee) at the time, or

• any other place while performing work (as an employee) for the employer (or a related corporation of the employer),

where a ‘workplace’ means premises (or part of the premises), or any other place (or part of the place), where employees work.

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¹Section 5 IR Act 1996 No 17 (IR Act)

²Section 4 WS Act

³Sections 3 & 5, WS Act