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Are you considering inserting a workplace surveillance clause into your Employment Agreements? Have you been vigilant when it comes to employees’ emails? While workplace surveillance is not illegal, there are a number of important limitations on the extent to which employers may scrutinise the email/computer use of employees in the workplace. The restrictions on email use may vary depending on the relevant state legislation.

In general, you are permitted to look through your employees’ sent emails by utilising your IT system, however, this right may vary between states.

Email Use Policy

An Email Use policy is a document that explains how to report disputes, complaints and grievances. It also explains how a company will deal with inappropriate behaviour, bullying, victimisation, discrimination and harassment in relation to the company, its employees and workplace, including any action that may be taken to resolve disputes, complaints and grievances.

If you use an Email Use Policy, make sure you have included all of the following:

  • What you can and cannot do with your email;
  • What kind of information the employer can gain access to, and where this information will be stored/made available;
  • 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. In addition there is the risk of the employer’s legal liability; and
  • The process for ensuring, enforcing and encouraging staff compliance

Make sure a commercial lawyer reviews the Email Use Policy every 12 months to ensure it stays abreast of new technological developments. As an employer looking to monitor your employees’ emails, you may wish to consider a few things first:

  • Will you have a lawyer insert workplace surveillance clauses?
  • Have you considered the provisions of the Workplace Surveillance Act 2005 (NSW)?
  • Have you considered the provisions of the Privacy Act 1988 (Cth)

Workplace Surveillance Clauses

Some Employment Agreements will include a clause that states that the employer will be entitled to carry out surveillance in the workplace, including camera and computer surveillance. This is not a problem in general. For example, in NSW, the Workplace Surveillance Act states that in most circumstances employees must be notified before the surveillance actually begins. The Workplace Surveillance Act also permits the surveillance of employees’ computers, as long as the employees are given notice of the Email Use Policy and are reasonably believed to comprehend it.

Having said that, a magistrate is allowed to authorise secret surveillance if some employees are engaging in illegal activities while in the course of employment. In the notice to employees about workplace surveillance, certain details need to be included for the notice requirement to be fulfilled. For example:

  • What type of surveillance should the employees expect?
  • How will the surveillance conducted?
  • When will the surveillance start?
  • Will the surveillance be ongoing?

The Privacy Act

The Privacy Act will not cover businesses with an annual turnover that is less than $3M. It doe, however, cover employers of businesses above this threshold and applies to the employees’ emails; specifically those that have personal information and the Internet log history.

The Privacy Act does not apply to employers who monitor employees’ records. An employee record details his or her personal information that is pertinent to the position they currently hold or previously held.

Conclusion

Drafting a ‘workplace surveillance’ clause is necessary if you wish to lawfully monitor your employees while they work. This may be through camera surveillance, tracking or computer surveillance and should always be done so in accordance with the Privacy Act and the Workplace Surveillance Act. If you wish to speak with a business lawyer, contact LegalVision on 1300 544 755.

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