Workplace Surveillance Laws: What Real Estate Agencies Need to Know
O*NO! You’ve just installed shiny new security cameras in the office and set up software to monitor work devices—only to realise you might have crossed some legal lines. Workplace surveillance is becoming increasingly common across Australia, with employers using it to ensure safety, protect assets, monitor employee performance, and detect fraud or theft. But these legitimate objectives need to be balanced with the privacy rights of employees and clients.
Workplace surveillance laws can be a bit of a minefield, especially for real estate agencies, where compliance is already part of your everyday grind. To complicate matters further, workplace surveillance is governed by state-specific legislation, which means the rules can vary depending on where you’re located.
In this blog, we’ll walk you through the key considerations when it comes to workplace surveillance to help you stay on the right side of the law, including the different state-specific rules, and practical tips for your agency.
Surveillance Laws: Australian Capital Territory
If your real estate agency operates in the ACT, you’re covered by the Workplace Privacy Act 2011 (ACT), which sets clear rules around workplace surveillance. Here’s a quick rundown of what you need to know.
Notice Requirements
Before conducting any surveillance, you must provide written notice to employees. This notice must include:
The type of surveillance device you plan to use.
How the surveillance will be conducted (e.g., visible cameras, tracking devices).
Who will be monitored and when the surveillance will start.
Whether the surveillance will be continuous or intermittent and for how long.
The purpose of the surveillance and how the records will be used or disclosed.
The law requires the notice to be given:
At least 14 days before surveillance begins.
If agreed upon, in a shorter period than 14 days.
For new employees, before they start work if surveillance is already in place or will begin shortly after their start date.
Consultation Requirement
Good faith consultation is key. You need to give employees a genuine opportunity to discuss and influence how the surveillance will be conducted. This consultation must last for at least the duration of the notice period. For example, you could hold team meetings to discuss proposed cameras, share draft policies for feedback, or run a transparent trial period for monitoring software. Even simple steps like Q&A sessions or surveys can help address concerns and ensure your team feels heard. The goal is to genuinely consider their input and incorporate reasonable suggestions into your plans.
Optical & Data Surveillance Devices
If you’re using optical surveillance devices, such as cameras, there are specific rules you must follow. Cameras must be clearly visible in the workplace, ensuring employees and visitors are aware of their presence. Additionally, signs must be placed at every entrance to notify people that they may be under surveillance. These measures ensure transparency and compliance with the law.
Monitoring employee devices, such as phones or computers, involves additional obligations. Surveillance must adhere to a written policy that outlines how the employer’s computer systems can and cannot be used, what information is logged, and who has access to the logged data. The policy should also explain how compliance will be monitored or audited. Importantly, employees must be notified about the policy in a way that ensures they understand it.
Prohibited Surveillance
An employer commits an offence if the employer conducts surveillance of a worker in a ‘prohibited non-work area’. This includes toilets, change rooms, bathing areas, parent/nursing rooms, prayer rooms, sick bay, and first aid room. As a rule of thumb, surveillance will be prohibited in areas that an individual can expect privacy or are highly sensitive areas.
Surveillance Laws: New South Wales
Workplace surveillance in NSW is governed by the Workplace Surveillance Act 2005, which closely aligns with the laws in the ACT. Employers must provide written notice at least 14 days before surveillance begins, or a shorter period if agreed upon by the employee. For new employees, notice must be given before they start work if surveillance is already in place or will commence shortly after they begin.
The written notice must specify the type of surveillance (e.g., camera, computer, or tracking), how and when it will be carried out, and whether it will be ongoing or for a set period. Similar to the ACT, camera surveillance must involve clearly visible cameras and signage at every workplace entrance. Computer surveillance requires a written policy that employees are notified of and reasonably expected to understand.
Again, it is prohibited to carry out surveillance in changes rooms, toilet facilities, or bathing facilities.
Surveillance Laws: Victoria
In Victoria, workplace surveillance is regulated by the Surveillance Devices Act 1999.
Employers must not knowingly install, use, or maintain listening or optical surveillance devices to monitor private conversations or activities unless they have the express or implied consent of all parties involved. There is, however, no notice period requirement like the ACT or NSW.
Importantly, the Act explicitly prohibits the use of optical or listening devices in highly sensitive areas of the workplace, such as toilets, washrooms, change rooms, or lactation rooms.
Other Jurisdictions
In other jurisdictions, the requirements for workplace surveillance are generally similar, with laws focused on transparency, consent, and privacy. Some states, like Queensland, don’t have specific workplace surveillance legislation for employer-employee relationships. Instead, surveillance is often governed by broader privacy and criminal laws, leaving employers with less detailed guidance on monitoring employees in the workplace. Regardless of location, however, it's important for employers to be mindful of any applicable laws and ensure they have clear policies in place to protect both their business and employees’ privacy.
How You Can Stay Compliant with Surveillance Laws
To ensure your real estate agency stays compliant with workplace surveillance laws, here are some practical steps you can take:
Provide Written Notice: Before implementing any form of surveillance, provide your employees with written notice—ideally at least 14 days in advance (especially if this is a legal requirement in your state). Make sure the notice clearly outlines the type of surveillance, when it will begin, and how it will be conducted. For new employees, make sure they’re notified before they start work.
Employee Consent: Always obtain express consent from employees before monitoring their activities or conversations. For areas such as cameras or computer usage, this can be part of your employment contracts or company policies.
Transparent About Surveillance: Clearly mark surveillance devices (e.g., cameras) so they’re visible to all employees and visitors. Post signage at all entrances notifying people that they may be under surveillance. This helps foster trust and ensures compliance with transparency requirements.
Respect Privacy in Sensitive Areas: Never install surveillance devices in areas where privacy is expected, like toilets, washrooms, change rooms, or lactation rooms. These areas are off-limits for surveillance, no matter the type of device you’re using.
Create Clear Policies: Develop a comprehensive surveillance policy for your agency that covers how and when devices may be used. The policy should also include guidelines on data usage, employee access to records, and the consequences of non-compliance. Ensure your policies cover any state legislated requirements, and that employees are informed about and understand this policy.
Employee Consultations: Give employees an opportunity to discuss and provide feedback on surveillance practices. This could be done through meetings, surveys, or one-on-one conversations. Actively listen to their concerns and make adjustments where possible to maintain a positive work environment.
Review and Update Regularly: Laws and regulations around workplace surveillance can change, so make sure your policies are up to date. Regularly review your surveillance practices and consult with a legal professional to stay compliant with any new or updated legislation.
Seek Legal Help When Needed: Navigating workplace surveillance laws can be complex, especially with varying regulations across states and territories. If you're unsure about your obligations or need help drafting policies or notices, seek legal advice to ensure your practices are compliant. We can provide tailored legal guidance for your agency and help you avoid costly mistakes down the line.
By following these simple but important steps, and seeking legal assistance when necessary, you’ll help ensure that your workplace surveillance practices remain legal, ethical, and transparent—protecting both your employees' privacy and your agency’s interests.
Key Takeaways:
Workplace surveillance laws vary across states and territories, so it’s crucial to understand the specific regulations in your jurisdiction and ensure your surveillance practices comply with them.
Always provide employees with clear, written notice of any surveillance before it begins, detailing the type of surveillance, its purpose, and how it will be conducted.
Sensitive areas like toilets and change rooms are off-limits for surveillance. Be mindful of employees’ privacy and only monitor in areas where surveillance is allowed.
Workplace surveillance can be complex, and seeking legal advice will help you stay compliant with changing laws and avoid potential legal pitfalls. Regularly review your policies and practices to ensure they are up-to-date.
Have questions about workplace surveillance or other employment law matters?
We’re here to help! Whether it’s surveillance, contracts, or any other workplace issues, our real estate agency lawyers have you covered.
Boring legal stuff: This article is general information only and cannot be regarded as legal, financial or accounting advice as it does not take into account your personal circumstances. For tailored advice, please contact us. PS - congratulations if you have read this far, you must love legal disclaimers or are a sucker for punishment.