28 September 2022
23 min read
#Government, #Workplace Relations & Safety
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Employers in NSW use various means of technology to monitor the behaviour of their employees and what is generally occurring in their workplaces. Other reasons for surveillance in the workplace may include detecting theft or fraud, or to assist in monitoring work, health and safety issues (so that it has a clear record of any workplace incidents).
Over recent years, technology has increasingly been used to monitor employees. For example, increasing coverage of CCTV in workplaces and tracking the location of employees via GPS systems attached to vehicles. ‘Spyware’ has also been used to track computer and internet access and usage. However, the surveillance of employees, and particularly, how information obtained by surveillance can be used, is an issue that features regularly in employment-related disputes.
In this article, we summarise the laws that regulate the surveillance of employees and workplaces in NSW and how the Fair Work Commission has dealt with evidence obtained by surveillance in two recent cases.
Overview
The applicable workplace-related legislation in NSW is the Workplace Surveillance Act 2005 (WS Act).
The purpose of the WS Act is to regulate the use of optical, audio, electronic and tracking surveillance in the workplace. In summary, the WS Act sets out:
Specifically, with regard to notification, the WS Act requires that an employer provide an employee with at least 14 days’ written notice before commencing workplace surveillance, or a lesser period if the employee agrees. The notice must explain:
Camera surveillance must not be carried out unless the cameras are clearly visible and there are signs at each entrance to the work premises notifying employees they are under surveillance.
Surveillance of employee computers can only occur when there is an existing policy in place, and the employer provides notice in advance and ensures that the employees understand the policy.
Surveillance will also only comply with the requirements of the WS Act if the employee has agreed to the surveillance at the premises for a purpose other than the surveillance of employees, and the surveillance in question is carried out in accordance with that agreement.
The use of surveillance devices in NSW is also regulated by the Surveillance Devices Act 2007 (NSW) (SD Act). A surveillance device is defined as being a listening device, data surveillance device, an optical device or a tracking device. The SD Act covers:
The maximum penalty for non-compliance with the WS Act is $55,000. However, more significant penalties apply under the SD Act, with most offences carrying a maximum penalty of $550,000 (for corporations) and $110,000 (for individuals) and/or five years imprisonment.
Prohibited workplace surveillance NSW
Covert workplace surveillance is surveillance that takes place without the awareness of employees. This kind of surveillance is strictly prohibited in NSW. The only exception is for an employer with covert surveillance authority issued by a magistrate (which can only be issued if the court is satisfied that relevant criteria have been met).
There are also specific areas of a workplace that cannot be monitored, including toilets, changing rooms and shower facilities. Any permitted surveillance must not record (even inadvertently) an area where an employee has an expectation of and right to privacy.
The most common issue that arises in the Fair Work Commission (FWC) regarding evidence obtained by way of surveillance is how that evidence has been obtained, and whether it will consequently be accepted into the proceedings.
The two cases below illustrate that whether or not the FWC will accept evidence obtained ‘improperly’ depends on each case’s circumstances, rather than a clear approach that applies to all.
This is in keeping with the fact that the FWC is technically not bound by the rules of evidence and can inform itself as it sees fit, i.e., it has much more discretion regarding what evidence it will admit and take into account than a court. However, the bar for the FWC to exercise that discretion will be raised, and it will be consequently less likely that evidence will be admitted, if it has been improperly obtained (e.g., in a way that represents a breach of the relevant legislation).
Use of improperly obtained material by an employer
This question of whether an employer could rely upon improperly obtained surveillance material as evidence in defending an unfair dismissal application was considered by a Full Bench of the FWC in Krav Maga Defence Institute Pty Ltd t/a KMDI v Markovitch [2019] FWCFB 4258 (Kra Maga).
In this matter, the employer used cameras at its martial arts gym to observe its employee, Mr Markovitch. The CCTV footage showed Mr Markovitch was using his phone on a number of occasions when he should have been supervising his classes. His employer consequently came to the view that Mr Markovitch was not properly performing his duties, and particularly, that he was not giving the proper amount of attention to supervising the students in his class. He was consequently summarily dismissed for breaching relevant policies. Mr Markovitch was aware the cameras which captured his misconduct were operating, but the employer did not provide 14 days’ notice of surveillance coming into operation and there were no signs advising that the cameras were operating.
At first instance, the FWC determined that the CCTV evidence had not been obtained in accordance with the requirements of the WS Act and was therefore inadmissible. However, the Full Bench overturned the first instance decision, upholding all grounds of the employer’s appeal.
The Full Bench accepted there was sufficient evidence to support the employer’s submission that the surveillance had occurred with the employee’s agreement. The Full Bench held the agreement did not need to be in writing and could be implied. In this case, it was implied as Mr Markovitch had been involved in the installation of the cameras, authorised the payment for the installation of the cameras and had not objected to or complained about the cameras.
The Full Bench also accepted the surveillance was for a purpose other than the surveillance of employees, namely the protection of employees and students.
Reliance on surveillance materials by an employee
An example of where covert recordings by an employee was used to support their version of events was in Kelly Walker (No. 2) [2019] FWC 4862. In this case, Ms Walker unsuccessfully attempted to have secret recordings of meetings with colleagues admitted as evidence in her application for an order to stop bullying and in support of allegations of breaches of various pieces of legislation, including the Fair Work Act 2009 (Cth), work health and safety legislation and whistleblowing laws. Ms Walker submitted to the FWC that a police officer had told her that she was able to, legally, secretly record conversations if she had a concern for her safety.
The employer submitted that the employee’s covert recordings of conversations constituted a breach of section 7(1)(b) of the SD Act. Further, the employer provided a statement that it had obtained from the relevant police officer, in which he said that he advised Ms Walker that she could make written records of any meetings she attended, but at no stage had he advised her that she had the legal right to audio record any conversations between parties.
Deputy President Sams initially observed that, regardless of whether there was any subsequent finding by a court that there had or had not been a breach of the SD Act, the FWC may admit evidence, illegally obtained or otherwise, in order to inform itself “in such a manner as it considers appropriate”. However, DP Sams then highlighted that secret recording is highly inappropriate, and referenced the observations of Deputy President Colman in Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878, where he stated:
“Unless there is a justification, I consider the secret recording of conversations with co-workers to be highly inappropriate, regardless of whether it may also constitute a criminal offence in the relevant jurisdiction… once it is known that a person has secretly recorded a conversation, this is apt to produce a sense of foreboding in others, an apprehension that they must be cautious and vigilant. This is potentially corrosive of a healthy and productive workplace environment.
Generally speaking, the secret recording of conversations with colleagues in the workplace is to be deprecated” (at [83]).
In deciding not to admit the recording into evidence, DP Sams relied on the following factors:
Accordingly, DP Sams rejected the employee’s application to have the recorded evidence admitted.
Author: Andrew Klein
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Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190
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Bankruptcy Act 1966 (Cth); Compensation Courts Act 1984 (NSW); District Court Act 1973 (NSW); Personal Injury Commission Act 2020 (NSW); Workers Compensation Act 1971 (SA); Workers Compensation Act 1987 (NSW); Workers Rehabilitation and Compensation Act 1986 (SA); Workmen’s Compensation Act 1971 (SA); Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Eggleton v Secretary, Department of Communities and Justice [2022] NSWCATAD 310
ADMINISTRATIVE LAW – administrative review – Government information – onus of proof - scope of GIPA application - reasonable searches - access and form of access – confidential hearing and evidence
Civil and Administrative Tribunal Act 2011 (WA); Civil and Administrative Tribunal Act 2013 (NSW); Crimes (Administration of Sentences) Act 1999 (NSW); Crimes (Administration of Sentences) Regulation 2014 (NSW); Evidence Act 1995 (NSW); Freedom of Information Act 1982 (Vic); Government Information (Public Access) Act 2009 (NSW); Government Sector Employment Act 2013 (NSW); Industrial Relations Act 1996 (NSW); Privacy and Personal Information Protection Act; State Records Act 1998 (NSW); Work Health and Safety Act 2011 (NSW)
Derikuca v Secretary, Department of Education [2022] NSWSC 1239
ADMINISTRATIVE LAW – existence of legislative authority for conduct by Secretary of Department – plaintiff not employee of defendant – legislative authority confined to employees – certiorari issued
CONTRACT – privity of contract – powers under contract – different entity granted contractual power – no authority under contract
TORTS – economic torts – intentional inducing of breach of contract – remedies
Competition and Consumer Act 2010 (Cth); Education (School Administrative and Support Staff) Act 1987 (NSW); Teaching Service Act 1980 (NSW); Work Health and Safety Act 2011 (NSW); Supreme Court Act 1970 (NSW)
Zaki Property Pty Ltd v Wollongong City Council [2022] NSWLEC 1526
DEVELOPMENT APPLICATION – centre-based childcare centre – flood prone land – childcare centres as an “unsuitable land use” in the site circumstances – appropriateness of adopted “Manning’s coefficient” or “n value” (roughness factor) in flood modelling – whether the proposed development would result in an unacceptable increase in flooding on-site or off-site – adequacy of proposed Flood Emergency Response Plan as responses to flood risk – appropriateness of “shelter in place” during flood events – applicability of clause 5.21 of standard instrument
Environmental Planning and Assessment Act 1979; Standard Instrument (Local Environmental Plans) Amendment (Floor Planning) Order 2021; Standard Instrument (Local Environmental Plans Amendment Order 2007; Standard Instrument (Local Environmental Plans) Order 2006; State Environment Planning Policy (Educational Establishments and Child Care Facilities) 2107; State Environmental Planning Policy (Transport and Infrastructure) 2021; State Environmental Planning Policy Amendment (Flood Planning) 2021; Wollongong Local Environmental Plan 2009
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Norman v Central Coast Council [2022] NSWLEC 120
JUDICIAL REVIEW: whether deferred development consent condition imposing a 12 month time limit for compliance with conditions validly imposed by the council – condition invalid
STATUTORY CONSTRUCTION: principles of construction – where provisions of legislation contradictory– presumption against surplusage – presumption that provisions of legislation are to be construed harmoniously – use of extrinsic material to assist in the construction of legislation – whether drafting error in Covid-19 emergency measures legislation amending principal Act – statute read down to avoid inconsistency
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Proclamations commencing Acts
COVID-19 and Other Legislation Amendment (Regulatory Reforms) Act 2022 No 5 – published LW 23 September 2022
Regulations and other miscellaneous instruments
Motor Accidents Compensation (Determination of Loss) Order 2022 – published LW 27 September 2022
Bail Amendment (Proceedings for Administration of Sentence) Regulation 2022 – published LW 23 September 2022
Community Land Management Amendment (COVID-19) Regulation (No 2) 2022 – published LW 23 September 2022
Environmental Planning and Assessment Amendment (Wilton Town Centre Precinct) Regulation (No 2) 2022 –published LW 23 September 2022
Health Services (Transfer of Assets, Rights and Liabilities) Order 2022 – published LW 23 September 2022
Motor Accident Injuries (Indexation) Amendment Order (No 2) 2022 – published LW 23 September 2022
Motor Accidents (Determination of Non-Economic Loss) Amendment Order 2022 – published LW 23 September 2022
Motor Sports Events Regulation 2022 – published LW 23 September 2022
Property NSW Amendment (Transfer of Property) Order (No 2) 2022 – published LW 23 September 2022
Strata Schemes Management Amendment (COVID-19) Regulation (No 2) 2022 – published LW 23 September 2022
Work Health and Safety Amendment (Demolition Licensing) Regulation 2022 – published LW 23 September 2022
Workers Compensation (Indexation) Amendment Order (No 3) 2022 – published LW 23 September 2022
Work Health and Safety Amendment Regulation 2022 – published LW 16 September 2022
Environmental Planning Instruments
Coffs Harbour Local Environmental Plan 2013 (Amendment No 28) – published LW 23 September 2022
Fairfield Local Environmental Plan 2013 (Amendment No 43) – published LW 23 September 2022
Georges River Local Environmental Plan 2021 (Amendment No 3) – published LW 23 September 2022
State Environmental Planning Policy (Precincts—Western Parkland City) Amendment (Wilton Town Centre Precinct) (No 2) 2022 – published LW 23 September 2022
State Environmental Planning Policy Amendment (Coastal Mapping and Native Vegetation) 2022 – published LW 23 September 2022
Wingecarribee Local Environmental Plan 2010 (Amendment No 64) – published LW 23 September 2022
Blacktown Local Environmental Plan 2015 (Amendment No 32) – published LW 16 September 2022
Lake Macquarie Local Environmental Plan 2014 (Map Amendment No 5) – published LW 16 September 2022
Wollondilly Local Environmental Plan 2011 (Amendment No 43) – published LW 16 September 2022
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Crimes (Administration of Sentences) Amendment (No Body, No Parole) Bill 2022 – 21 September 2022
Crimes Amendment (Money Laundering) Bill 2022 – 21 September 2022
Criminal Procedure Legislation Amendment (Prosecution of Indictable Offences) Bill 2022 – 21 September 2022
Dedicated Encrypted Criminal Communication Device Prohibition Orders Bill 2022 – 21 September 2022
Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Bill 2022- 21 September 2022
Royal Botanic Gardens and Domain Trust Amendment (Facilitation of Sydney Metro West) Bill 2022 – 21 September 2022
Security Industry Amendment Bill 2022 – 21 September 2022
Bills introduced by Non-Government
Prevention of Cruelty to Animals Amendment (Prohibitions for Convicted Persons) Bill 2022 21 September 2022
Bills revised following amendment in Committee
Health Legislation (Miscellaneous) Amendment Bill (No 2) 2022 – 20 September 2022
Museums of History NSW Bill 2022 – 21 September 2022
Bills passed by both Houses of Parliament
Health Legislation (Miscellaneous) Amendment Bill (No 2) 2022 – 20 September 2022
Museums of History NSW Bill 2022 – 21 September 2022
Commonwealth Legislation
Act compilation
National Greenhouse and Energy Reporting Act 2007 23/09/2022 – Act No. 175 of 2007 as amended
Carbon Credits (Carbon Farming Initiative) Act 2011 21/09/2022 – Act No. 101 of 2011 as amended
Science and Industry Research Act 1949 21/09/2022 – Act No. 13 of 1949 as amended
Climate Change Authority Act 2011 20/09/2022 – Act No. 143 of 2011 as amended
Veterans’ Entitlements Act 1986 20/09/2022 – Act No. 27 of 1986 as amended
Australian Securities and Investments Commission Act 2001 20/09/2022 – Act No. 51 of 2001 as amended
Renewable Energy (Electricity) Act 2000 20/09/2022 – Act No. 174 of 2000 as amended
Northern Australia Infrastructure Facility Act 2016 19/09/2022 – Act No. 41 of 2016 as amended
Infrastructure Australia Act 2008 19/09/2022 – Act No. 17 of 2008 as amended
Clean Energy Finance Corporation Act 2012 19/09/2022 – Act No. 104 of 2012 as amended
Greenhouse and Energy Minimum Standards Act 2012 16/09/2022 – Act No. 132 of 2012 as amended
Offshore Electricity Infrastructure Act 2021 16/09/2022 – Act No. 120 of 2021 as amended
Export Finance and Insurance Corporation Act 1991 16/09/2022 – Act No. 148 of 1991 as amended
Building Energy Efficiency Disclosure Act 2010 16/09/2022 – Act No. 67 of 2010 as amended
Business Names Registration (Transitional and Consequential Provisions) Act 2011 15/09/2022 – Act No. 127 of 2011 as amended
Clean Energy Regulator Act 2011 15/09/2022 – Act No. 163 of 2011 as amended
Australian Renewable Energy Agency Act 2011 15/09/2022 – Act No. 151 of 2011 as amended
National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 14/09/2022 – Act No. 135 of 2009 as amended
Social Security Act 1991 14/09/2022- Act No. 46 of 1991 as amended
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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