Business warned of legal action for spying on staff

Businesses that spy on their staff have been warned to make sure they have appropriate workplace surveillance guidelines in place or risk legal action from disgruntled employees. 

Bronwyn Maynard, senior associate at Harmers Workplace Lawyers, says businesses need to be aware of a raft of possible changes to privacy laws, particularly around the use of technology. 

The Senate is preparing to review submissions regarding the Rudd Government’s new Fair Work bill’s scope to deal with privacy issues. 

At the same time, the Australian Law Reform Commission is undertaking a national review of privacy laws. Changes to the Federal Privacy Act are expected as a result of the inquiry, with portable technology such as smartphones and wireless devices expected to be examined closely. 

The ALRC wrote that, “devices that use wireless technologies could be stolen and misused, raising questions about monitoring by employers of such new and increasingly remote technologies by their staff.” 

“As technology changes, the legislation doesn’t specifically cater to new technologies. So part of the reforms to the privacy act will provide a greater scope for those technologies,” Maynard says. 

“As to what those are yet, that is uncertain. But businesses do need to be aware of those changes when they occur,” she says.

Currently, the most likely form of surveillance in businesses are security cameras, which require a fortnight’s notice before installation.

If an employer captures any foul play by employees via surveillance without giving proper notice, that evidence may be ineligible for use in court. The expected changes to the Federal Privacy Act may expand the acceptable use of surveillance and what can be used as evidence.

Maynard says another change that is likely to occur will relate to the right of employees to request personal information obtained by an employer through surveillance.

“Employers will have to regard certain requirements and obligations when using information obtained. There is not an automatic right for employees to request information held by an employer, and that may change.”

But Maynard claims while employee surveillance can still be undertaken, employers must “smarten up” about the policies they have in place and whatever changes are made to national laws

“Businesses should have a written policy in place that is hard copy or can be circulated that lets employees know that surveillance will be conducted. In particular, if it’s computer surveillance, it needs to be said when it will occur and whether that will be on-going or temporary.”

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