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 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.
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.
The workplace policy should set out employee’s responsibilities in relation to drugs and alcohol in the workplace, the method and procedure of testing, the procedure following the return of a positive test result and the consequences or disciplinary action that will follow breaching the company’s drug and alcohol policy or the refusal to submit to drug and alcohol testing. Employees must be well informed of the policy and providing training and education in this area is used by some workplaces to make sure employees are well informed.
Methods of testing include breath testing for alcohol, and saliva and urine sample testing for drug detection.
The importance of a clear and thorough policy is seen in a recent case before the Fair Work Commission, Shannon Green v Lincon Logistics Pty Ltd T/A Lincon Hire & Sales  FWC (20 September 2017), an employee was awarded compensation after being terminated from his job for refusing to provide a blood sample for drug testing after suspicions were raised that he had provided a tainted urine test. The workplace policy did not provide for blood testing and the Commission found that the employer had not provided a strong enough reason that negative urine test did not suffice.
Given that an employee is bound by section 28 of the WHS Act to co-operate with any reasonable policy or procedure of the workplace in relation to health and safety, it is therefore expected that if a drug and alcohol testing policy is appropriately written and provided to workers, a worker cannot reasonably refuse to take a test.
There have been many cases whereby employers have argued in the Fair Work Commission that a refusal to submit to a test is a refusal to obey a lawful and reasonable direction and the worker can be subject to disciplinary action or can even be dismissed. This is seen in a case where the employee refused to submit a urine sample in Mr Raymond Briggs v AWH Pty Ltd  FWCFB 3316 (5 June 2013). The Fair Work Commission noted that AWH’s drug and alcohol policy was clearly written and by not submitting Mr Briggs was breaching his contractual agreement with the company.
Another example where workplaces need to be vigilant to follow legal guidelines is in the case of requesting an employee undertake a medical review where there are concerns about the employee’s fitness for work. Not being fit to carry out the duties required of the job can pose a health and safety risk and a request to undertake a medical review must be made on such reasonable grounds. If it cannot be proven that the employee will not be fit for their position for the foreseeable future, employer’s should exercise caution in making such a request.
It is important for employer’s to firstly have very clear and comprehensive policies in place and to keep employees informed of policy and procedures. It is also important that these policies are implemented with consistency.
If you would like assistance to ensure your workplace policies are up to date Voice Lawyers provide a workplace audit service and practical legal advice. Voice Lawyers can also develop and deliver training to employees and management across a range of professional development and compliance issues.