The Workplace Surveillance Act 2005 (NSW)

The Workplace Surveillance Act 2005 (NSW) was assented to on 23 June and will commence upon proclamation, at which time the Workplace Video Surveillance Act 1988 (NSW) will be repealed.

The new legislation will regulate the camera, computer and tracking surveillance of employees at work. Surveillance of an employee is defined as:

(a) camera surveillance , which is surveillance by means of a camera that monitors or records visual images of activities on premises or in any other place,

(b) computer surveillance , which is surveillance by means of software or other equipment that monitors or records the information input or output, or other use, of a computer (including, but not limited to, the sending and receipt of emails and the accessing of internet websites),

(c) tracking surveillance , which is surveillance by means of an electronic device the primary purpose of which is to monitor or record geographical location or movement (such as global positioning system tracking device).

Unless the surveillance of employees complies with certain conditions it may be characterised as ??covert surveillance??, which is prohibited unless authorised by a magistrate. Some of those conditions include:

? Surveillance of an employee must not commence without prior notice in writing given at least 14 days before the surveillance commences and indicating the kind of surveillance to be carried out, when it will commence and whether it will be for a specified period or ongoing

? For camera surveillance, both the cameras and signs notifying people that they may be under surveillance must be clearly visible

? If tracking surveillance involves tracking a vehicle or other thing, a notice must be clearly visible on the vehicle or other thing indicating that it is the subject of tracking surveillance.

Computer surveillance

? Computer surveillance must be carried out in accordance with a policy that has been notified to employees in advance and it is reasonable for the employer to assume that the employees are aware of and understand the policy

If an employer wishes to prevent access to an internet site or block the delivery or receipt of an email sent to or by an employee, the new Act requires the employer to act in accordance with a policy on email and internet access that has been communicated to employees. An employer preventing the delivery of an e-mail must also issue the employee with a prevented delivery notice except where the email or an attachment to it would be regarded by reasonable persons as being, in all circumstances, menacing, harassing or offensive.

What does the new legislation mean for employers?

? Employers should review any existing workplace surveillance to ensure it is being undertaken in accordance with the Act.

? Employers should review existing workplace policies on computer use and access to email and internet web sites to ensure those policies comply with the Act.

? Employers should ensure that all employees (including independent contractors and employees of subsidiaries) are aware of and understand workplace policies on computer use and access to email and internet web sites.

? Employers who do not currently have policies on computer use and access to email and internet web sites should consider introducing such policies firstly to ensure compliance with the Act and secondly (and perhaps more importantly) to ensure that appropriate action can be taken in relation to any discrimination, harassment or bullying issues which arise in the workplace.