Who can use this notice?

This document can be used by all employers who operate in NSW and the ACT.  The document you will create is based on the requirements in both the Workplace Surveillance Act 2005 (NSW) ('the NSW Act') and the Workplace Privacy Act 2011 (ACT) (‘the ACT Act’), so it may not be appropriate for circumstances outside NSW or the ACT. Professional advice should be obtained before implementing any camera surveillance in premises outside NSW and ACT.

Commentary

Employers in NSW and the ACT must comply with the requirements of the NSW Act and the ACT Act in order to implement workplace surveillance by camera.

Employers who wish to conduct workplace surveillance relating to the internet, e-mail, or computer usage should use the Internet, Email and Computer Use Policy, available on the Workplace website.

Covert and overt surveillance

The template document only deals with overt workplace surveillance by camera.

The NSW Act and the ACT Acts regulates both covert and overt workplace surveillance where that surveillance is performed with cameras. An employer may only implement covert surveillance in the workplace with the permission of a relevant Court, and an application to the Court must be made before the covert surveillance takes place. It is illegal to undertake covert surveillance without Court permission. Professional advice should be obtained with respect to intended covert surveillance.

Notification requirements

In order to introduce overt workplace surveillance by means of cameras, an employer must comply with the following notice requirements:
 

• The affected employees must be notified in writing, at least 14 days before the surveillance commences. However, the employee(s) may agree to a shorter period of notice.
• In the case of a new employee, the employer need only provide the new employee with the requisite written notice, before the employee starts work.

 

The written notice, including via email, to employees must indicate:
 

• the kind of surveillance to be carried out (ie camera); and
• how the surveillance will be carried out; and
• when the surveillance will start; and
• whether the surveillance will be continuous or intermittent; and
• whether the surveillance will be for a specified limited period or ongoing.

The following additional matters must be included in notices for ACT employers:
 

• who will regularly or ordinarily be the subject of the surveillance; and
• the purpose for which the employer may use and disclose surveillance records of the surveillance; and
• that the worker may consult with the employer about the conduct of the surveillance under section 14.

 

If an ACT employer has a written policy concerning workplace surveillance which sets out all of the matters outlined above and they provide a copy of the policy to their employees, this can satisfy the notice requirements under the ACT Act. However, employers should seek legal advice before relying on the policy as formal notice under the ACT Act.

For ACT employers, they must consult with employees in good faith about the conduct of the surveillance for not less than the 14 day notice period. An employer will consult in good faith under this legislation if, thorugh the consultation procedure, it gives the employee(s) a genuine opportunity to influence the conduct of the surveillance.

Camera surveillance must not be carried out unless:
 

• cameras (or the casings of the cameras) used for surveillance are clearly visible in the place where the surveillance is taking place; and
• signs notifying people that they may be under surveillance in that place are clearly visible at each entrance to that place.