Bossware and the expectation of privacy at work

Employers can monitor workers using “bossware”, but it must be with the knowledge of the workers and to a reasonable degree, writes Candice Heisler.

In this post-COVID-19 era, and with the rise of the “hybrid” workplace and the scientific advances in technology generally, there is an alarming increase in the implementation of “bossware”. This refers to technology utilised by employers to collect data and information on their workers, including monitoring computer activities, deploying onsite surveillance cameras, tracking work devices and logging access, and this conduct seems to be increasing.

Surveillance in the workplace, even where the surveillance is disclosed to workers, can breed a lack of trust and bad culture.

But what are the rights of the worker? The questions to ask here are:

• Can an employer legally access this data and surveillance of its workers?
• What about the risks of the collection of unnecessary data and excess surveillance?

The short answer is that employers can monitor workers with reasonable use of computers, internet (including emails) and onsite surveillance cameras if workers are aware of the monitoring.

The Privacy Act 1988 (Cth) allows the surveillance of workers if it is necessary for the organisation’s lawful functions or activities. The surveillance should be proportionate to legitimate business needs and not overly intrusive.

Some types of surveillance may be industry-specific and for the safety of workers. For example, a community nurse or personal carer’s role involves work travelling and attending to clients in the community, and the work vehicles may be fitted with a tracker to ensure the safety of their workers. However, an employer needs to place a visible notice on the vehicles informing workers that the car contains a tracking device.

If an employer wishes to install overt surveillance (i.e. CCTV monitoring), the employer must notify workers within 14 days notice and inform any new staff. This is the case in NSW and the ACT pursuant to the Workplace Surveillance Act 2005 (NSW) and the Workplace Private Act 2011 (QCT).

However, in Queensland, there are no specific laws addressing workplace surveillance, and generally in Queensland, legal authority is found in s.227A of the Criminal Code, the Privacy Act 1988 (Cth) and the Australian Privacy Principles.

Employers cannot covertly record workers, including installing hidden cameras or recording devices, unless this is authorised by a magistrate.

In Waugh v Simon Blackwood (Workers’ Compensation Regulator) [2015] ICQ 028, the Industrial Court of Queensland (“ICQ”) overturned earlier decisions [of WorkCover] to reject an application for compensation by a female worker who developed a psychiatric injury upon finding out that her supervisor had taken covert photographs of her chest.

It was alleged that the worker’s supervisor had over 2,500 photographs on electronic devices, several of which focused on the chest area of the female staff, including the worker, and she was identifiable due to the number of images that included her face. Justice Martin found that the worker demonstrated that her psychiatric injury arose out of, or in the course of, her employment and that employment was a significant contributing factor to the development of her psychiatric injury.

Covertly recording private conversations is prohibited, particularly where a person (i.e. a supervisor/manager) is not included in the conversation and recording a person where they would have a reasonable expectation of privacy.

Employers should have clear policies regarding surveillance in the workplace and any data collection or other monitoring and the extent of that monitoring.

If a worker has evidence of a complaint against their employer for a breach of their right to privacy, or excessive surveillance, there may be a range of legal options open, including breach of employment contract, breach of privacy laws or discrimination allegations, and it may be reasonably foreseeable that a worker could sustain a psychiatric or psychological injury entitling them to workers’ compensation and a common law negligence claim.

In summary, employers can monitor workers using “bossware”, but it must be with the knowledge of the workers and to a reasonable degree.

Candice Heisler is a senior associate at Queensland-based law firm Travis Schultz & Partners.