We respond to your concerns . . .  

Printing Industries has used your feedback on proposed legislation governing workplace surveillance and the blocking or monitoring of employee access to e-mail and the Internet. A submission opposing the legislation has been given to the NSW Government. (See related page below)

Draft legislation, released in June by the NSW Government, could create a precedent for managing workplace surveillance.  

The Workplace Surveillance Bill (NSW) 2004 applies to camera, computer and tracking surveillance of employees "at work". It limits an employer's ability to block or monitor employees e-mails or restrict access to the Internet.  Only after 14 days written notice has been given to en employee can surveillance be undertaken. Covert surveillance can only be undertaken (as now) with the authority of a Magistrate, and then only after the Magistrate has considered whether the employee or any other person's privacy would be compromised.  

The objectives of the Bill are to:

• prohibit the surveillance by employers of their employees at work except by notified surveillance (telling employees where, when and how the surveillance will be done) or where surveillance is carried out under the authority of a covert surveillance authority, issued by a Magistrate, to establish whether or not an employee is involved in any unlawful activity at work;
• to restrict and regulate the blocking by employers of e-mail and Internet access of employees at work,
• to allow the issue of covert surveillance authorities by Magistrates subject to conditions being adhered to; and
• to restrict the use and disclosure of covert surveillance records.    

The Bill distinguishes between covert and notified surveillance. 

Notified Surveillance. Employee must be notified in writing of the intended surveillance at least 14 days beforehand. A shorter period is possible with the agreement of the employee.

The proposed Bill applies to camera surveillance of an employee including closed-circuit television (CCTV). Cameras must be clearly visible. Signs must also be installed notifying people that they may be under surveillance. The signs must be clearly visible at all entrances.  

Computer surveillance has similar notice requirements for signage in the vicinity of the computer concerned or by audible announcement or written notice when the employee logs onto the computer or starts a program subject to the surveillance.  

Covert surveillance. This is surveillance that is not notified. However the proposed Bill outlaws covert surveillance unless it is carried out solely for establishing whether or not an employee is involved in an unlawful activity at work. A Magistrate must authorise the covert surveillance.  

Tracking surveillance is defined by the Bill as "the monitoring or recording of the geographical location or movement of the employee by means of an electronic device."  This includes Global Positioning Systems (GPS) used in vehicles and mobile phones. Notification and signage is also required on these devices.

Employers are expressly prohibited from carrying out surveillance, notified or covert (as now), in any change room, toilet facility or shower or other bathing facility at work.  

E-mail and Internet Restrictions. The draft Bill prohibits employers from preventing or restricting e-mail delivery or website access. However, if the employer has an Internet and e-mail policy that employees have been notified of and the restrictions are contained in this policy, an exemption can apply.   In the case of blocked e-mail, the employee must receive immediate notice that the e-mail delivery has been prevented.

Notification is not necessary where:

• the e-mail is a commercial electronic message as defined by the Spam Act 2003;
•  the delivery of the e-mail concerned will result in a person being menaced or harassed; or
• the content of the e-mail or attachment would be regarded by a reasonable person as being, in all the circumstances, offensive.  

E-mail and Internet access cannot be restricted solely because they contain information relating to industrial matters. 

This information is a snapshot only of the draft legislation. A full copy of the draft Act is available below.

Printing Industries is seeking your comments on the draft Bill by 28 July for inclusion in a submission to the NSW Attorney General. Comments or submissions should be sent to Philip Andersen, Printing Industries, 25 South Parade, Auburn NSW 2144. E-mail: philip@printnet.com.au

Draft Workplace Surveillance Bill (pdf - 336.9 kb) The NSW Government's draft Workplace Surveillance Bill 2004 open for public comment until 4 August 2004. The Bill repeals and replaces the Workplace Video Surveillance Act 1998, which applied only to video (ie. camera) surveillance.