In Short
- A workplace surveillance clause allows lawful email monitoring if employees are informed.
- An email use policy should set clear rules on acceptable use and employer access.
- Regular reviews keep the policy up to date with technology and legal requirements.
Tips for Businesses
Clearly inform employees about any email monitoring and its purpose. Make sure your policy covers acceptable use, risks and compliance. Update it regularly to reflect legal and technological changes.
Are you considering inserting a workplace surveillance clause into your employment agreements or a workplace policy? Have you been monitoring employees’ emails? While workplace surveillance is not illegal, there are some limits on the extent to which you can review and access your employee’s workplace email. These limitations will primarily depend on the applicable state or territory legislation. One way to ensure compliance with surveillance laws and deal with any email surveillance issues is to implement an email use policy. To help you consider some of the issues your email use policy should address, this article explains:
- what is an email use policy;
- limitations on workplace surveillance; and
- relevant state and territory legislation regarding surveillance in the workplace.
Email Use Policies
An email use policy is a document that sets out the guidelines and procedures for the appropriate use of company email systems. An email use policy will likely deal with:
- acceptable use of email (or related systems);
- privacy and security expectations for employees; and
- monitoring processes within the business.
Utilising and meaningfully implementing this policy will help maintain appropriate email use in the workplace and likely limit your business risk exposure to issues related to:
- spam or security risks;
- unauthorised or inappropriate email content; and
- claims from employees that they were not notified of surveillance and monitoring in the workplace.
What Should I Include in an Email Use Policy?
If you use an email use policy in your business, make sure you include:
- what employees can and cannot do with their work email;
- what is appropriate use of personal email during business time;
- what kind of information you, as the employer, can gain access to, and where this information will be stored/made available;
- how email monitoring will be carried out by the business;
- the risks of improper email use to colleagues (privacy), as well as the security risks to the business and potentially its intellectual property or other confidential information; and
- the process for ensuring, enforcing and encouraging staff compliance.
Workplace Surveillance Clauses
While an email use policy is recommended, some employment agreements may also contain a clause allowing the employer to conduct surveillance in the workplace, such as using cameras and monitoring computer activities. This is usually permissible as long as it complies with specific conditions outlined in the laws of most Australian states and territories.
For example, in NSW, the Workplace Surveillance Act 2005 states that in most circumstances, you must notify your employees at least 14 days before workplace surveillance actually begins. The Workplace Surveillance Act also permits surveillance of employee computers by an employer where:
- an existing computer surveillance policy is in place;
- the employer carries out surveillance in accordance with that policy; and
- the employee has been notified of the policy and can be taken to have reasonably understood the policy.
Why Do I Need a Workplace Surveillance Clause?
In an ideal world, monitoring your employees’ email activity is unnecessary. However, having a workplace surveillance clause in your employment agreements and email use policy will assist you if you need to take disciplinary action against an employee for misconduct.
For example, if you must investigate an allegation of sexual harassment or bullying via email, accessing the alleged harasser’s email might be necessary. In the absence of a well drafted email use policy or surveillance clause in an employment contrcat, this may be practically difficult and potentially unlawful
This fact sheet outlines employers’ ‘positive duty’ under sex discrimination laws, highlighting proactive measures to prevent unlawful conduct.
Workplace Surveillance Laws
As mentioned above, the extent you can review and access your employee’s workplace emails will depend on the relevant state and territory laws. As there is no consistent set of laws across Australia, you should be familiar with the laws covering your employees, and ensure to comply with notice requirements through your email use policy. An employment lawyer can provide specific advice for your business.
New South Wales and the Australian Capital Territory
Both NSW and ACT have similar laws which cover workplace surveillance. These laws are the most comprehensive in Australia. Generally, you must notify employees that you are commencing surveillance at least 14 days before the surveillance commences. Your employees can also agree to waive the notice period in their employment agreement.
In the notice, you must include:
- the kind of surveillance you will carry out, such as by camera, computer or tracking;
- how you will carry out the surveillance;
- when the surveillance will start;
- whether the surveillance will be continuous or intermittent;
- whether the surveillance will be for a specified limited period or ongoing; and
- for business’ in the ACT, the purpose for which you may use and disclose surveillance records of the surveillance.
In addition to notice requirements for email surveillance, you must also have a workplace policy that relates to workplace surveillance and carry out the surveillance in accordance with the policy. This is to ensure consistency as well as transparency for your employees.
Victoria
Workplace surveillance laws in Victoria are less comprehensive, but permit an employer to use surveillance to monitor performance and safety. Generally, surveillance can be conducted in office spaces and online, but whether this can include computer or email surveillance is unsettled at law.
Western Australia, South Australia and the Northern Territory
Although there is no specific workplace surveillance legislation in either of these states and territories, there is general legislation relating to surveillance. Broadly, these states and territories do not permit optical or listening devices unless consent is given or another exemption applies. As best practice, you should still implement an email use policy that deals with workplace surveillance for employees in these states and territories. This will be critical if the law changes and in the event you need to investigate or terminate an employee.
Queensland and Tasmania
Similarly, there is no specific workplace surveillance legislation other than general legislation in Queensland and Tasmania. Nevertheless, it would be wise to consult an employment lawyer before you include a workplace surveillance clause in your employment contract. Doing so can ensure the clause is drafted in accordance with the general law.
Privacy Act 1988
The Privacy Act 1988 does not specifically address workplace surveillance. However, the legislation is still relevant as it sets out the standards of privacy to which employees and customers are entitled. For instance, the Act requires businesses to have a privacy policy for collecting personal or sensitive information. To comply with the Privacy Act and avoid penalties, it is good practice to disclose your use of surveillance in your Privacy Policy. It is wise to have a legal professional guide you through your requirements under the Privacy Act or the Australian Privacy Principles.
Key Takeaways
Drafting a ‘workplace surveillance’ clause into an email use policy or employment contract is necessary if you wish to monitor your employees while they work lawfully. Ideally, you should not have to review and monitor your employee’s emails. However, including a surveillance clause in each document can assist you in the instance where you need to take disciplinary action.
If you need help drafting a workplace surveillance clause, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
A workplace surveillance clause can allow you to conduct surveillance on your employees. Surveillance can take the form of monitoring emails, installing CCTV cameras and recording internet usage.
This will depend on the applicable state or territory laws. In NSW and the ACT, you must give your employee notice of the surveillance 14 days before the surveillance commences.
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