Significant advances in technology in recent years has seen an increase in the number of employers who are using surveillance devices to monitor and manage staff.The use of surveillance devices, when done appropriately, can improve employee safety, provide better quality training and performance feedback and monitor productivity.

This article highlights the three main areas of surveillance in the workplace:

• listening devices
• optical surveillance devices
• tracking devices.

The Surveillance Devices Act 1998 (WA) (SD Act) regulates the use of:

• listening devices in respect of private conversations
• optical surveillance devices in respect of private activities
• tracking devices in respect of the location of persons and objects.

Definitions

Important definitions under the SD Act include but are not limited to:

“Private activity” means any activity carried on in circumstances that may reasonably be taken to indicate the participants do not wish to be observed. It does not include an activity which the parties should reasonably expect to be observed.

“Private conversation” means any conversation carried on in circumstances that may reasonably be taken to indicate the participants do not wish to be overheard. It does not include a conversation carried on in any circumstances in which the participants should reasonably expect to be overheard.

“Principal party” in relation to a private conversation means a person to whom words are spoken in the course of the conversation; and in relation to a private activity, it means a person who takes part in the activity.

Listening devices

The Act prohibits a person from installing or using a listening device to record, monitor or listen to a private activity whether that person is, or is not, a party to the private conversation.

Exemptions may include:

• where each principal party to the private conversation has consented to the installation or use of a listening device
• a principal party to the private conversation consents and the recording is reasonably necessary to protect the lawful interests of that principal party.

Optical surveillance devices

It is an offence to install or use an optical surveillance device to record visually or observe a private activity whether that person is, or is not, a party to the private activity.

Exemptions may include:

• each principal party to the private activity consents to the installation or use of such a device;
• a principal party to the private activity consents to the installation or use of a device because it is reasonably necessary for the protection of a lawful interest of that principal party.

Tracking devices

It is unlawful to install, use or maintain a tracking device to determine the geographical location of a person or object without the express or implied consent of the person or person who is controlling the object.

Using surveillance devices appropriately

The SD Act does not prevent employers from using listening, optical, or tracking devices in the workplace, as long as they are not being used to record private conversations or private activities.

Employers who do use surveillance devices should ensure that they have the express or implied consent of their employees. CCI recommends that employers consider:

• installing signage notifying of the surveillance (e.g. with a fixed optical surveillance camera)
• updating workplace policies to include mention of the specific type of surveillance (e.g. if a call centre records every call, an employee should be made aware of this in the appropriate policy)
• having employees sign a document agreeing to the employer’s use of the surveillance device (e.g. if you have a driver and want to install a GPS in their car it may be appropriate to have them sign an agreement upon installation)
• updating any policies relating to the private use of the telephone, internet or other method of communication that may be monitored.

Publication or communication of private conversations

It is unlawful for a person to knowingly publish or communicate a private conversation, a report/record of a private conversation, or a record of a private activity if that person used a listening device/optical surveillance device to obtain it.

Exemptions

• The prohibition does not apply where the information is passed to a party to the conversation or activity, or where the express or implied consent of each principal party to the private conversation or private activity has been given.
• Publication or communication may also occur for the protection of the lawful interests of the person making the publication or communication.

Public interest exceptions

Listening devices

A party to a private conversation, or a person who acts on behalf of the party, may use a listening device to record or monitor that conversation if the principal party involved consents and there are reasonable grounds to believe the use of the listening device is in the public interest.

Optical surveillance devices

A party to a private activity, or a person who acts on behalf of the party, may use an optical surveillance device to record visually a private activity if a principal party to the private conversation consents and there are reasonable grounds for believing the use of the optical surveillance device is in the public interest.

Publication/communication

A judge may rule that a person may publish or communicate a private conversation that has come to the person’s knowledge as a result of a listening or optical surveillance device if satisfied the order should be made to protect or further the public interest.

Emergency use

A person may use a listening/optical surveillance device if at the time of use there are reasonable grounds for believing the circumstances are so serious and the matter is of such urgency that use of the device is in the public interest.

Where emergency use is acted on, the person must immediately deliver a written report to a judge providing all details.

Considerations

It is recommended that before installing surveillance devices of any kind that employers consider the potential benefits and implication of workplace surveillance. CCI suggests that any monitoring that does occur be reasonable and take into account the:

• type of work employees perform
• nature of the business
• industry.

For example, employees working in a call centre may willingly agree to each of their calls being recorded if the recording device is being used to monitor an employee’s customer service skills. Employees in the same situation may be less willing to agree to the use of optical recording devices or tracking devices to monitor their movement around the call centre.

For further information please contact CCI’s Employee Relations Advice Centre on (08) 9365 7660 or email [email protected].