Workplace surveillance and email monitoring have become the norm in organisations across Australia. However, many employees still do not understand their obligations or their rights when it comes to the use of computer technology in the workplace. Another issue arising out of the use of digital communication in the workplace is who owns correspondence that is sent from a work address?
The tension between an employee’s privacy and any potential restraint of trade conditions or copyright issues continue to be a source of contention in employment law, causing confusion for both parties. This blog will provide an overview regarding the law surrounding privacy and workplace surveillance, however if you are affected by this issue it is important to seek out legal advice.
The Workplace Surveillance Act 2005 (NSW) provides that a policy must be in place for an employer to undertake workplace computer surveillance. Employees must be given notice of that policy. Commonly, employers include a notice of surveillance in a new employee’s contract. However, if employers are introducing computer surveillance into the workplace they must provide employees at least 14 days written notice.
Under the Act the notice must include:
- the kind of surveillance to be carried out (i.e. computer, camera or tracking surveillance)
- how the surveillance will be carried out
- when the surveillance will start
- whether the surveillance will be continuous or intermittent; and
- whether the surveillance will be for a specified limited period or ongoing.
What does the Privacy Act 1988 say?
The Privacy Act 1988 (Cth) is the national legislative body for regulating the handling of personal information by government agencies and organisations. The Australian Privacy Principles (APP) are enshrined in this Act, specially Principle 12, which states that if an APP entity (which includes Government agencies and private organizations) holds personal information about an individual, the entity must, on request, give the individual access to the information. It is worth noting that the Act itself does not distinctively cover surveillance in the workplace. The employee records exemption under this Act provides an exemption to adherence to the APP for employers in certain circumstances. This means that employers are allowed to collect and store employee’s personal information if it is directly related to the employee-employer relationship, or if it forms part of an employee record.
However, employers should not assume that all the information they hold that relates to an individual employee would constitute an employee record. For example, the Office of the Australian Information Commissioner (OAIC) have given the example of financial correspondence received into an employee’s work email account. Whilst an employee’s bank details may fall within the meaning of ‘employee record’, the specific emails and their contents that an employee receives from their financial institution that is sent to their work email account, may not necessarily be part of an ‘employee record’ as it may not relate to the employment of the employee. Whether or not the content of emails sent or received by an employee forms part of their ‘employee record’ will always depend on the circumstances and you should seek advice regarding your particular case.
How do I know if my employer can view emails sent from my company email address?
If an employer has given notice that workplace emails are or can be placed under surveillance, then it is quite likely that your employer can view emails sent from your company email address. Most organisations have privacy and workplace surveillance policies that stipulate when and why your emails might be viewed by an employer.
If you are disputing your right to access to your personal emails on your work email accounts, the OAIC may have the jurisdiction to hear your complaint if you are arguing that the emails fall out of the employee record exemption prescribed in the Privacy Act. However, as mentioned previously, this is determined on a case by case basis and the law surrounding this area remains somewhat ambiguous. If you are unsure, it is best to seek legal advice. The team at Etheringtons Solicitors are skilled in employment law and are ready and willing to assist you with your enquiry. If you would like further information, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or via our contact form. For more articles, please see our blog here.