Will Victoria’s workplace surveillance protection laws ‘put workers back in control’?

Here, senior employment and workplace relations lawyers reflect on the Victorian state government’s newly proposed workplace surveillance protection laws and the need for such frameworks in the age of AI.

Last week, Victorian Premier Jacinta Allan and Minister for Industrial Relations Jaclyn Symes announced what they called the “toughest” workplace surveillance protection laws in the country, which will, among other things, ensure that biometric data can only be collected when there’s no less intrusive option; prevent the use of such data to read emotions, unless there’s a legitimate reason to do so; prevent using AI to track things like bathroom breaks, a limp, or pregnancy, without a specific, legitimate purpose; and increase protections to prevent use of workplace surveillance and AI to discriminate by race, gender, sexuality, religion or other personal characteristics.

Speaking about the flagged legislation, Allan said that no Victorian should be watched at work without knowing about it.

“I am sickened by the idea that a pregnant woman’s bathroom breaks or emotions could be tracked, logged, and used against her or her colleagues in a salary decision,” she said. “We cannot allow discrimination to sneak back into the workplace via AI.”

Symes said: “Every worker has the right to know when, why and how they’re being watched on the job – these laws make sure of it. These laws put workers back in control of their own information.”

The place for such new laws

The flagged laws, Kingston Reid partner Katie Sweatman said, follow a parliamentary committee inquiry conducted in 2024 and 2025 directed, among other things, to examine the effectiveness of current privacy and workplace laws relating to workplace surveillance in Victoria, and are a strengthening of the state government’s response to that committee’s recommendations.

The laws will follow, she and Clayton Utz partner Amanda Lyras pointed out, legislation introduced in NSW, where employers are required under WHS laws to consider the risks associated with AI and other digital work systems.

Moreover, Lyras and Harmers Workplace Lawyers executive counsel and team leader Amy Zhang said, much of the conduct being targeted is already covered by existing legislative obligations, such as discrimination laws, and employers should already have measures in place to ensure compliance. However, as Lyras said, the Victorian laws “would go somewhat further in specifically requiring a human in the loop for significant automated decisions affecting workers, and restricting employers from using AI to read employees’ emotions or screening candidates without meaningful oversight”.

“In my view, what we are seeing at a state level is a response to employee unease about the use of AI,” she said.

For Zhang, “the devil will be in the detail, and employers should carefully watch this space”.

“If the reforms are passed, employers will face additional and heavy regulatory burden, and will need to ensure [their] processes and policies are reviewed and updated to comply with the changes. Legal advice will be essential given the complex web of laws and issues that will apply,” she said.

One such potential burden, Sweatman said, is the proposed prohibition on collecting biometric data where there is a less intrusive option available: “While currently there is a requirement that employees have alternatives available to them if they do not consent to using biometric clock-in tools, the announcement appears to suggest that employers would no longer be able to utilise such tools at all where old-fashioned clock in systems are available instead,” she said.

Reflections on the employer experience

Jewell Hancock principal Andrew Jewell said there has always been a need to balance performance monitoring with privacy, and the new laws seek to grapple with that interaction in the age of AI. To that extent, they are seeking to address a problem that is important for employers and employees.

“From an employer perspective, there is no diminution in the ability to measure performance; it just needs to be done openly and fairly and with a real-world analysis,” he said.

“Employers have always been able to reasonably monitor an employee’s output and to use technology to do so, and technological surveillance became increasingly prevalent when the technology became available, but also as a response to increased flexibility, including working from home during and after the pandemic.”

In fact, he said, increased surveillance was often seen to be the price of increased flexibility.

With that said, Jewell went on, as surveillance tools become increasingly sophisticated, the goal becomes less about catching remote workers who are not performing duties, and more about increased and unreasonable surveillance at work and in a remote working situation.

“Furthermore, there is always an issue with over-reliance on AI-analysis when real people are involved,” he said.

Danny King Legal principal Danny King noted that reading the state government’s announcement about the laws made her question what it knows about how AI is currently being used. “I would expect that most employers would be surprised to think that the tools they may be using to work smarter and faster were deliberately seeking out pregnant women or some other group in order to impose some detriment on them,” she said.

“In my experience, I also expect that employers actually want to walk the talk and apply truly diverse hiring and governance practices – and the prospect of some tech they have used somehow undermining that would be alarming.”

AI as the new frontier is still so unknown, King continued, that it feels like the very early days of the internet all over again.

“If the liability is to sit with the employer, and a claim arises from the employer’s good faith use of tech that has some hidden bias or restricted capability that could be working away in the background, then it feels right to me that the government is stepping up and mandating what kinds of mitigation against these perils must be already addressed in the tech itself,” she said.

“What is unclear, and I hope will be resolved by the time we are looking at a bill, is the accountability of an employer who uses a product that has one of the perils lurking where they can’t see.”

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Jerome Doraisamy

Jerome Doraisamy is the managing editor of Momentum Media’s professional services suite, encompassing Lawyers Weekly, HR Leader, Accountants Daily, and Accounting Times. He has worked as a journalist and podcast host at Momentum Media since February 2018. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of the Minds Count Foundation.