Working from home and hybrid working arrangements have become the societal norm in a post pandemic workspace. Whilst offering flexibility to both the Employer and Employee, how can you be sure that your Employee’s are actually working when working from home? The emerging solution to this is spyware, there a numerous programs that allow employers to see their Employees computer screens, emails and activity on their computers, but how does this work if the Employee is working from home? An Employer is allowed to install any spyware they want on both work provided computers and any computer provided by the Employee that they complete work on.
Whilst the installation of spyware and monitoring is allowed there are still specific requirements that change depending on the state. In New South Wales, the Employer has to provide an employee with notice in writing at least 14 days prior to monitoring commencing, in the notice the employer must let the employee know; what kind of surveillance is happening (are they tracking location, using the camera on the device or tracking key strokes), how the surveillance will be carried out, whether it is continuous surveillance or intermittent and whether surveillance is for a specified time period or ongoing. (Section 10 Workplace Surveillance Act 2005).
Further, even if the device is provided by the employer they are not allowed to carry out surveillance of the employee when the employee is not working. What about camera surveillance? Given the intrusive nature of camera surveillance Section 11 of the Workplace Surveillance Act 2005, the law states that in order for camera surveillance to take place the cameras must be clearly visible and there must be signs notifying people that they may be under surveillance in that place and are clearly visible at each entrance to that place. Given the higher requirement when undergoing camera surveillance, employers are unable to just turn on an Employee’s camera at will. Additionally, any and all data that is collected by the employer is still subject to the Privacy Act 1988 Cth, and as such should be treated with care.
What does all this mean for an employer? Employers are allowed to monitor the computer activity of an employee during their work day, whether they are working from home or at work, whether the employee is using a work issued device or an approved personal device for work purposes, as long as they are notified at least 14 days prior.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
