Whilst it is obvious that the Australian public is enamoured with the "big brother" concept in television programs, the same cannot be said for the workplace. Concerns have been expressed by industrial researchers that persistent, intrusive surveillance of the workforce can lead to a sense of insecurity, loss of trust, inhibition, stress and discontent.
In particular, in call centres where there are high levels of monitoring in the workplace, studies have shown that workers experience more general health problems including depression, tension, anxiety and lower productivity levels.
Of concern to employees is that private activities such as adjusting clothing, practising regular religious observances, flirting and general behaviour in which people conduct themselves with an assumption of privacy, may be monitored.
Balanced against these concerns, however, is an employer's right to manage the workplace while protecting employees and the company from unlawful activities.
In an effort to address these competing interests, the New South Wales Government introduced the Workplace Video Surveillance Act, 1998 which was designed to restrict and regulate the use of video surveillance equipment in the workplace.
There is no specific legislation dealing with workplace surveillance in other states. Protection against the filming of private activity arises under the various acts relating generally to all surveillance, for example surveillance conducted by the authorities. The State Commissions in Queensland and Western Australia are, however, able to make awards dealing with such matters.
When the NSW Workplace Video Surveillance Act came into effect in February 1999, the then Attorney General and Minister for Industrial Relations, Jeff Shaw, stated:
the secret filming of workers in the workplace will be illegal unless there are reasonable grounds to suspect an employee is committing an unlawful act and a court authority is obtained
This is not 1984 and we do not want a big brother State. We all have rights to privacy."
The Act establishes the distinction between covert video surveillance and open video surveillance. It is a breach of the Act for an employer to carry out open video surveillance if the following has not occurred:
- At least 14 days notice has been given to employees of surveillance.
- The majority of employees have agreed to the video surveillance.
- Warning signs are placed in the workplace indicating that video cameras are in use.
- Video cameras are visible.
With respect to covert video surveillance:
- Employers must receive authority from a magistrate before they can carry out covert surveillance and it must be solely for the purpose of establishing whether or not an employee is involved in any unlawful activity. A magistrate must be satisfied that there are reasonable grounds to suspect the employee is engaged in unlawful activity.
- The surveillance operation must be overseen by a licensed security operator and all tapes other than those required for evidence must be destroyed after three months.
- Correctional centres, the casino and law enforcement agencies are exempt from the legislation.
The Act specifically prohibits surveillance of an employee in the toilet or shower or for the purpose of monitoring his or her performance.
Recently there have been a number of cases involving breaches of the Act which have incited public outrage. In July, ACI Glass Packaging Penrith was fined for installing a secret camera in a room where employees frequently undressed. The camera was discovered by a union representative. ACI claimed that it was installed in the first-aid room to monitor oxygen tanks stored to prevent them being stolen. The room, however, was frequently used by employees to change their clothing and also receive treatment for ailments. The Company was fined $500 and ordered to pay court costs. The Union has expressed outrage over the low fine and has sought legal advice regarding individual civil actions against the Company.
A Sydney lawyer, Robert Harper, also breached the Act when he installed secret cameras in the female toilets of his law firm allegedly because he suspected employees were using drugs in the toilet. A staff member found a box of edited videotapes of various staff members giving star ratings "best", "beauty" and "great". Mr Harper was fined $1,056.
Other cases have dealt with the issue of video surveillance as evidence in unfair dismissal cases. In the recent decision of the Australian Industrial Relations Commission, Commissioner Larkin considered video tape of a casino employee removing a bag of coins from a weighing scale and placing the bag between the scales and her till.
The Casino relied on this tape as evidence of the employee's unlawful activities in removing money from the till. When criminal charges were brought against the employee, the charge was not proven and the applicant was acquitted. The applicant then proceeded with a claim for unfair dismissal in the Australian Industrial Relations Commission.
The Commissioner undertook a review of the video surveillance evidence which was a result of open video surveillance (casinos are exempt under the Act) and made a number of comments about the applicant's actions based on the tape.
Commissioner Larkin then went on to detail some concerns he had with aspects of the investigative process including that the applicant did not have access to the surveillance videotape. The applicant was not shown the videotape at any point during the investigation or at the time of the termination.
Ultimately, the Commissioner was not satisfied that the applicant made an honest mistake on the night in question and stated that "In my view, the videotape is clear on its face."
Whilst the Commissioner accepted that the investigative process lacked an element of procedural fairness, this of itself was not sufficient to persuade him that the termination was harsh, unjust or unreasonable in the circumstances of the case and he dismissed the applicant's claim.
This case demonstrates that video surveillance footage alone is not always enough to justify termination of employment and that even where unlawful activities are captured on video tape, an employer should ensure the employee is treated fairly in the investigative process.
Whilst some commentators have suggested that the moral costs of surveillance may far outweigh any benefits, in many instances it may be the only way for an employer to determine whether an employee is engaged in unlawful activities.