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NSW Government Bulletin

28 September 2022

23 min read

#Government, #Workplace Relations & Safety

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NSW Government Bulletin

Workplace surveillance – when is it legal?

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.

Relevant workplace surveillance legislation and requirements in NSW


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:

  • requirements for employers to notify employees on the kind of surveillance that is proposed to be used, how it will be carried out, when it will start, whether continuous or intermittent and for a specified period or ongoing
  • requirements for camera surveillance, computer surveillance or tracking surveillance
  • prohibited types of surveillance
  • restrictions on convert surveillance and the storage of surveillance records
  • provisions for surveillance by consent.

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:

  • the type of surveillance (for instance, whether it includes audio or tracking)
  • the date and time that the surveillance will start
  • whether the surveillance is continuous or intermittent
  • whether it is for a certain period or an ongoing practice.

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 installation, use and maintenance of surveillance devices
  • the requirements for law enforcement obtaining warrants and emergency authorisation
  • restrictions of the use, communication and publication of information obtained by surveillance devices
  • reporting and recordkeeping.

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.

Recent cases

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:

  • the employee’s claim that she had police authority to secretly record a meeting with her employer was found to be false
  • there were issues of procedural fairness, as the employee’s evidentiary case had long since closed when she sought to tender the evidence, and the employee had failed to identify how many meetings she had recorded
  • it was becoming increasingly difficult to manage the case when new evidence was being ‘drip fed’ into the proceedings at inappropriate times and without the employer being given an opportunity to address new matters
  • the case authorities upon which the employee sought to rely on were distinguishable from the employee’s circumstances.

Accordingly, DP Sams rejected the employee’s application to have the recorded evidence admitted.

Author: Andrew Klein

In the media

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Upper House Committee Releases its Report into the long term sustainability and future of the timber and forest products industry
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NSW trade job inquiry forced to delay hearings due to fight over sensitive documents
There is a delay in the NSW trade job inquiry due to contended claims of legal privilege over documents which are critical to its resumption (26 September 2022).  More…

How the rail union’s latest industrial action could cost the NSW government $2 million a day
The rail union’s proposed plan to shut down the NSW transport network’s Opal card readers is set to cost the NSW government approximately $2 million every day, after the premier initially threatened to terminate the enterprise agreement (20 September 2022).  More…

Publications- articles, papers and reports

Statement of Regulatory Intent- Property and Stock Agents Regulation 2022
This statement of regulatory intent sets out the compliance and enforcement approach of NSW Fair Trading for new regulatory obligations on agents in the Property and Stock Agents Regulation 2022 (the Regulation). The Regulation starts on 1 September 2022 (21 September 2022). More…

Carbon credit income from FOGO
NSW councils may be able to use Australian carbon credits as an income source to help roll out new FOGO services (26 September 2022). More…

Guidelines- Circular Materials Fund: Circular Plastics Program Round 1
This is an initiative by the NSW Government on managing plastic waste. The Circular Plastics Program is to reduce barriers and maximise opportunities for circularity at a certain phase of the plastic product life cycle (22 September 2022). More…

Customer Satisfaction Index
This publication provides the level of Customer Satisfaction levels across all public transport, roads and ‘point to point’ transport services. It enables operators and agencies to drive accountability for continual improvement (15 September 2022). More…

NSW partner projects offer win-win for international students
The NSW partner projects intend to boost the employability of international students and promote wellbeing and support the recovery of the NSW international education sector with a share of $400,000. More (19 September 2022). More…

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Report into the long term sustainability and future of the timber and forest products industry
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Practice and Courts

AAT Bulletin Issue No. 19/2022
The AAT Bulletin is a fortnightly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans’ Appeals Divisions (19 September 2022). Read more here.

NSW Court of Appeal- Decisions reserved as at 23 September 2022. Read more here.

NSW public procurement and modern slavery- Discussion Paper, September 2022
This discussion paper discusses issues in developing the framework for changes to NSW public procurement to align with sustainable development goals. They require government agencies and local councils to take “reasonable steps” to ensure that goods and services which are procured are not from modern slavery. Responses to this Discussion Paper are invited until 25 November 2022. Read more here.


Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190
WORKERS COMPENSATION – Disease injury – Aggravation, acceleration, exacerbation, or deterioration in the course of employment – Where the deceased suffered an asthma attack causing cardiac arrest and anoxia, and ultimately resulting in her death, during the course of her employment – Where appellants initially pleaded the injury as an “asthma attack” – Where appellants brought a second claim for compensation pleading the injury as “cardiac arrest and anoxia” – Whether Anshun estoppel precluded the appellants from bringing the second claim

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

The Owners – Strata Plan No 50723 v The Council of the City of Sydney [2022] NSWLEC 1518
DEVELOPMENT APPLICATION – appeal against condition of consent – alterations and additions to existing commercial building – whether proposed development exhibits design excellence – effect on heritage significance of heritage item – pedestrian amenity in City of Sydney

Environmental Planning and Assessment Act 1979; Sydney Local Environmental Plan 2012; Land and Environment Court Act 1979; Environmental Planning and Assessment Regulation 2000

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

Covid-19 Legislation Amendment (Emergency Measures- Miscellaneous) Act 2020; Environment Planning and Assessment Regulation 2000; Covid-19 Legislation Amendment (Emergency Measures- Miscellaneous) Bill 2020; Environmental Planning and Assessment Act 1979; Interpretation Act 1987; Judiciary Act 1903 (Cth); Uniform Civil Procedure Rules 2005

McEwan v Port Stephens Council [2022] NSWCATAP 300
GOVERNMENT INFORMATION – application of s 107 of the Government Information (Public Access) Act 2009 (NSW) - revocation of non-publication orders – interlocutory decision – ancillary decision PROCEDURAL FAIRNESS – dispensing with an oral hearing – irrelevant matters – failure to deal with substance of the application – new evidence

Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Government Information (Public Access) Act 2009 (NSW)

FKV v Nambucca Valley Council [2022] NSWCATAD 309
ADMINISTRATIVE LAW - Privacy – Personal Information – whether conduct constitutes a breach of privacy – whether other legislation overrides privacy legislation – s 25 PPIP Act - scope of jurisdiction of Tribunal – whether information held

Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Local Government Act 1993 (NSW); Privacy and Personal Information Protection Act 1998 (NSW)\


New South Wales Legislation

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

Bills introduced by Government
Childcare and Economic Opportunity Fund Bill 2022 – 21 September 2022
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

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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