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Surveillance, drug tests and more – how far can employers go?


Workplaces must be careful to be properly informed where employee’s privacy is concerned. While surveillance and drug testing is allowable in the workplace in certain circumstances, it must be carried out in accordance with strict guidelines.

Surveillance

Surveillance in the workplace is becoming much more prevalent but chances are, if employees do not know they are being monitored, the surveillance could be illegal.

The Workplace Surveillance Act 2005 (NSW) applies to all workplaces and includes surveillance by camera, on an employee’s computer and tracking surveillance, for example the GPS tracking of a company vehicle. The Act stipulates that sufficient notice must be given to employees. Section 10 specifically requires that employees be given written notice 14 days prior to the commencement of the surveillance. If the employee has not yet commenced and surveillance is already in place, they need to be informed prior to their first day.

A workplace must inform employees of the mode of surveillance, the method of obtaining surveillance data, whether the surveillance is continuous or intermittent and whether the surveillance will be for a limited period of time or ongoing.

When it comes to camera surveillance there is the added requirement that the camera must be in plain sight and there must be signs displayed at the entrance to the workplace notifying employees, and anyone else entering the workplace, of the fact there is a camera monitoring the area.

For tracking surveillance, there must be a clearly visible notice on the object that it is being tracked and that tracking surveillance is in effect. With surveillance on employee’s work computers and devices, the employee must be made aware of the workplace policy that sets out the details of the information that is being accessed by the employer.

Certain areas are prohibited from surveillance (e.g. toilets and shower facilities) and surveillance is not allowed outside of work.

The Act does not provide any workplace with the automatic ability to carry out covert surveillance, or surveillance of an unknowing subject, without the authority of a Magistrate. Covert surveillance is usually only allowed where the workplace needs to establish unlawful activity at work. The use and disclosure of covert surveillance records is restricted.

Drug testing

Under the Work Health and Safety Act 2011 (the WHS Act), specifically section 19, employers have a duty of care to ensure, as far as reasonably practicable, the health, safety and welfare of all workers at its workplaces. Workers also have a duty, which is derived from section 28 of the WHS Act, to take reasonable care of themselves and others and to comply with any reasonable directions and policies. Workers under the influence of drugs and alcohol pose a substantial risk to the safety of themselves and other workers and employers have a duty to manage that risk.

When it comes to drug testing, it is once again important that employees are made aware of the expectations surrounding drugs and alcohol in the workplace. This can be done by way of a thorough policy.