INTRODUCTION

6.1 Surveillance of workplaces, primarily visual surveillance using video cameras, has recently become a matter for concern in New South Wales. That concern has led to two recent investigations, culminating in reports by the Privacy Committee and by a Working Party on Video Surveillance in the Workplace. Workplace surveillance has also been specifically referred to in the Commission’s terms of reference as follows:

In making this reference the Attorney draws the Commission’s attention ... to the current review of the issue of the regulation of workplace visual surveillance being conducted by the Department of Industrial Relations.

6.2 With the greater availability, and decreasing cost, of surveillance technology, employers have used video cameras to protect their property and merchandise from theft or damage by employees and customers and to provide an additional form of supervision of employee work performance. It is also used to improve customer service, to train staff, to monitor production processes and to protect employers from liability claims.¹ Apart from visual surveillance, other types of workplace surveillance include:

• monitoring the performance of computer operators through recording such data as number of keystrokes and number of tasks completed;
• monitoring the length and destination of telephone calls made by employees;
• using individual electronic passes to follow the movement of persons around an office; and
• reading employees’ email or other files on their computers.

There is an extensive literature on all aspects of workplace surveillance in the United States,² and recent federal legislation has been introduced, but not yet passed, to address such concerns.³ Though these latter types of surveillance are worthy of examination, the Commission’s terms of reference, and the recent investigations referred to above, are primarily concerned with visual surveillance.

Balancing competing interests in the workplace

6.3 As with all other forms of surveillance, workplace surveillance, both covert and overt, is likely to affect the privacy and other interests of employees. On the other hand, employers assert that their legitimate concerns must also be taken into account and balanced against those interests. For example, it is estimated that in the United States, employee theft costs $40 billion per year.⁴ Surveillance is one way of reducing this loss to business. The Commission also recognises the real commercial interests in favour of limiting regulation in the area of workplace surveillance, and the strong traditional claims of owners and occupiers of property for autonomy in relation to their property. These interests are not, nonetheless, absolute, and must be balanced against competing interests, such as an individual’s claim to a degree of privacy. It is possible that workplace privacy and the surveillance used will become an issue of terms and conditions of employment to be taken into account in enterprise bargaining. Whether there is real and informed consent in the context of employment negotiations is a vexed issue, however, recognising the distinct inequality of bargaining power involved. In the previous two chapters, the Commission has outlined the principles and forms of regulation which it considers should govern surveillance in general and the special category of overt visual surveillance. This chapter discusses whether, in light of the special issues affecting workplace surveillance, the views outlined should be modified.

REVIEW OF WORKPLACE SURVEILLANCE IN NEW SOUTH WALES

Privacy Committee Report

6.4 In the context of complaints and an industrial dispute about workplace privacy, the Privacy Committee of New South Wales investigated the issue of video surveillance and released a report on its use in the workplace, Invisible Eyes, in September 1995. The competing interests involved in the use of workplace surveillance were identified thus:

To employers, video surveillance is a means to expose theft, vandalism, and misconduct; to reduce security risks and legal liability; and to replace more expensive forms of security and supervision. Employees see its potential to dehumanise their working environment; to deny them a reasonable level of workplace privacy; to harass individuals; and to put them under constant surveillance.⁵

6.5 Major concerns which arise in workplace surveillance include:

• consultation (or lack of) with employees about the purposes and operation of workplace surveillance systems;
• the relevance and intrusiveness of the information collected;
• security and retention of the recordings made;
• access of employees to the recordings made and the opportunity to explain conduct recorded;
• disclosure to third parties of the contents of the recordings; and
• use of the surveillance devices in areas such as change rooms, toilets and recreation areas.⁶

6.6 The Privacy Committee considered that “measures should be taken to protect employee privacy from the unrestricted use of video surveillance”.⁷ It did not believe that self-regulation would provide sufficient safeguards, nor that guidelines issued under current privacy legislation would include adequate enforcement provisions. It therefore recommended that industrial relations legislation be amended to prohibit the use of video surveillance to monitor employee performance or in certain areas such as toilets and change rooms (except by the police in certain circumstances), and to require a permit from the Industrial Relations Court for its use in locker rooms, employee recreation rooms or for any covert operations undertaken by employers.⁸ It also recommended that privacy legislation be introduced to allow an enforceable code of conduct on video surveillance to be developed, under the supervision of a Privacy Commissioner, and, as an interim measure, that employers adopt the set of guidelines prepared by the Privacy Committee in this area.⁹

Working Party Report

6.7 Following the Privacy Committee Report, a Working Party on Video Surveillance in the Workplace, co-ordinated by the New South Wales Department of Industrial Relations, prepared a report which was released on 16 January 1997.¹⁰ That Report suggested a number of changes in the area of workplace surveillance, both covert and overt, including:

• the amendment of the Listening Devices Act 1984 (NSW) (“LDA”) to also cover visual surveillance, in particular to include a definition of covert visual surveillance, to prohibit covert visual surveillance to measure work performance, to prohibit all surveillance in toilets, showers and change rooms, and to require a permit from a Local Court Magistrate before otherwise secretly filming employees; and
• the adoption by employers of a voluntary code of practice on the use of overt surveillance in the workplace, including provisions for notice to and consultation with employees, recognition of the supervisory role of the Privacy Committee, restrictions on locations or hours of usage, and limitations of the use of and access to the recordings made.

The Report also stated that these recommendations were not intended to affect the existing surveillance powers of the police.¹¹ It should be noted that the Employers Federation of New South Wales did not endorse the Report and that there were a number of dissenting views within the Working Party, including about whether a system of prior judicial authorisation should be selected.¹²

6.8 The Attorney General and Minister for Industrial Relations, the Hon Jeff Shaw QC MLC, has announced that he will be implementing a reform package in this area after examination of the findings of the Working Party.¹³

THE COMMISSION’S REFERENCE

6.9 There is obviously significant potential for overlap between the Commission’s reference and the recommendations of the Working Party. It has therefore been suggested that the Commission should avoid considering the issue of workplace surveillance because of the Working Party review.¹⁴ The Commission does not agree. In the Commission’s view, excluding the area of workplace surveillance would be an artificial limitation on its terms of reference, particularly as many surveillance issues in the workplace are, in principle, the same as surveillance issues in other areas. In any event, such a limitation would involve difficult definition and demarcation issues, for example, what can be considered to be a “workplace”, and the overlap between employer and law enforcement roles and duties in this area.

Limitations of the Working Party recommendations

6.10 The Commission has a number of concerns with the reforms proposed by the Working Party. In particular:

• Authorisation of covert surveillance. The Working Party Report recommends amendments to the LDA to allow the prior authorisation of covert visual surveillance through permits issued by a Magistrate. Though the Commission supports the extension of the LDA to cover visual surveillance, this recommendation is inconsistent with the current system of warrants issued by Supreme Court judges for listening devices. The Commission considers that there are very strong arguments not only that the language in the LDA for both aural and visual surveillance should be consistent, but also that the intrusions involved are so great that nothing less than authorisation by a court of the status of the Supreme Court of New South Wales should suffice before covert surveillance in the workplace is permitted. (See also Chapter 5.)
• Period for surveillance. The Report recommends a maximum period of 30 days for covert visual surveillance, which is greater than the 21 days allowed under the LDA for listening devices. As argued above, in the interests of consistency and certainty, the Commission considers that the relevant conditions for the covert operation of surveillance devices should be the same for both aural and visual devices, unless it can be argued that markedly different issues arise.
• Oversight of surveillance operations. The Report advocates that covert surveillance operations be overseen by a person who is licensed to install security equipment. The Commission considers that further protections may be necessary, particularly in light of Justice Peterson’s Report into the Security (Protection) Industry Act 1985 which suggested that security personnel licensed under that Act might not always be appropriate persons to undertake such tasks.¹⁵
• Voluntary code of practice for overt surveillance. As discussed in Chapter 4, the Commission provisionally supports the development of codes of practice in the area of overt visual surveillance, including the types of provisions referred to in the Working Party Report. For the reasons outlined in that chapter, however, the Commission has concerns about the effectiveness of a voluntary code of practice without enforcement provisions.
• Omission of consideration of surveillance of non-employees. It must be recognised that workplace surveillance involves more than employees - it can also, either deliberately or incidentally, involve the surveillance of customers and others (including tradespersons and passers-by) without their permission. In the Report, little consideration has been given to the rights of the general population in relation to workplace surveillance. Recognition of the rights and interests of third parties who also become the subject of surveillance strengthens the argument for a uniform approach to surveillance, wherever it takes place.
• Extension to non-employers. The Commission is also concerned by the possibility of workplace surveillance undertaken by, or requested by, non-employers, such as insurance companies, even if employees have agreed to a certain level of surveillance by their employers in their workplace. The Commission’s tentative view is that employee consent to surveillance by an employer would not extend to surveillance by such third parties, but considers that there should be further discussion of this issue.

TENTATIVE CONCLUSIONS

6.11 Although the Commission accepts the need for different rules to be developed for overt visual surveillance, where there are different issues of principle involved than for other types of surveillance, it considers that it is inappropriate to have different and less stringent surveillance requirements for certain interest groups or areas. Instead, the Commission’s tentative view is that all surveillance, regardless of where it occurs, should be regulated in a uniform way and that therefore employees should have certain minimum standards of privacy which cannot be bargained away. The existing protections which are found in the LDA and the proposed changes which have been discussed in Chapters 4 and 5 should also, prima facie, apply to both employees and customers in the workplace.

ISSUE 29

Should the same rules govern all users of surveillance devices, or should there be different rules for the workplace, as proposed by the Working Party on Video Surveillance in the Workplace?


ISSUE 30

If different rules are accepted, is regulation of covert visual surveillance in the workplace through permits issued by Magistrates sufficient? If not, what is the best system of control and supervision?

ISSUE 31

Should workplace surveillance in certain areas such as toilets and change rooms be prohibited? If so, in which areas?

ISSUE 32

Should covert workplace surveillance be prohibited for the purposes of monitoring employees’ workplace performance?





ISSUE 33

Are there additional issues which arise about covert or overt surveillance in the workplace?




ISSUE 34

Should employee consent to workplace surveillance be considered to extend to third parties such as insurers?

FOOTNOTES

1. Privacy Committee of New South Wales Invisible Eyes: Report on Video Surveillance in the Workplace (Report 67, September 1995) at 2.

2. For example, see: T M Dworkin “Protecting Private Employees from Enhanced Monitoring: Legislative Approaches” (Spring 1990) 28 (1) American Business Law Journal 59-85; D N King “Privacy Issues in the Private-Sector Workplace: Protection from Electronic Surveillance and the Emerging ‘Privacy Gap’ “ (January 1994) 67 (2) Southern California Law Review 441-474; D R McCartney “Electronic Surveillance and the Resulting Loss of Privacy in the Workplace” (Summer 1994) 62 (4) University of Missouri-Kansas City Law Review 859-891; and M Levy “The Electronic Monitoring of Workers: Privacy in the Age of the Electronic Sweatshop” (Winter 1995) 14 (3) Legal Reference Services Quarterly 5-56.

3. For example, see Privacy for Consumers and Workers Bill (HR 1900 and S 984) (USA).

4. R G Boehmer “Artificial Monitoring and Surveillance of Employees: The Fine Line Dividing the Prudently Managed Enterprise from the Modern Sweatshop” (Spring 1992) 41 (3) De Paul Law Review 739 at 744.

5. Privacy Committee of New South Wales at 11.

6. Privacy Committee of New South Wales at 2-3.

7. Privacy Committee of New South Wales at 6.

8. The Privacy Committee also recommended changes to covert surveillance undertaken by law enforcement agencies in the workplace. Such surveillance is considered in Chapter 5.

9. Privacy Committee of New South Wales at 7-8. See Appendix 1 for “Guidelines on Overt Video Surveillance in the Workplace”.

10. Working Party on Video Surveillance in the Workplace Report to the Hon J W Shaw QC MLC Attorney General and Minister for Industrial Relations (New South Wales Department of Industrial Relations, Sydney, December 1996).

11. Working Party on Video Surveillance in the Workplace at 2.

12. Working Party on Video Surveillance in the Workplace, Appendix B.

13. The Hon Jeff Shaw QC MLC, Attorney General and Minister for Industrial Relations, Press Release “Stricter controls on spy cameras” (16 January 1997).

14. Australian Business Limited (formerly the Chamber of Manufactures of NSW Ltd) Submission (4 November 1996) at 2.

15. Industrial Relations Commission of New South Wales Reference by the Minister for Industrial Relations pursuant to s 345(4) of the Industrial Relations Act 1991 regarding the Transport and Delivery of Cash and Other Valuables Industry (Matter No IRC1880 of 1995, Report to the Minister, 28 February 1997).