In a first for Australia, NSW has introduced laws that ban employers from covertly monitoring employees using technologies such as video cameras, email and tracking devices, unless employers can prove they have reasonable suspicion of wrong-doing by an employee.

The NSW Workplace Surveillance Bill 2005 also imposes restrictions on the storage of covert surveillance records and bans employers from using global positioning systems to monitor or record the location or movement of an employee.

Individuals who break the law face fines of up to $5,500, while company directors could face a similar fine.

NSW Attorney General Bob Debus said the Bill strikes a balance between an employee’s right to privacy and the legitimate needs of employers to protect their intellectual and commercial property.

“While some employers argue that this is necessary to protect their legitimate interests, employees expect that their private correspondence, like their private telephone calls or private conversations, should never be the subject of secret monitoring,” he said.

“We don’t tolerate employers unlawfully placing cameras in change rooms and toilets. Likewise, we should not tolerate unscrupulous employers snooping into the private emails of workers.”

Secret email surveillance had been the basis of numerous union complaints, Debus said.

“In the area of unfair and intrusive use of surveillance technology in the workplace there has been a strong and entirely justified campaign by the union movement for reform,” he said.

“The labour movement has been vigilant in pointing out abuse by employers of workplace surveillance, inappropriate monitoring and blocking of ordinary industrial communication, harassment and intrusion which creates a climate of fear and suspicion within the workplace.”

Unless employers have a court order, Debus said, they would need to give employees notice that surveillance will be conducted. In the case of email surveillance, this could be achieved simply through a warning box on the computer screen.

“The Government’s legislation will require that employers wishing to take steps to protect their lawful interests must take account of employee privacy and cannot simply take advantage of the new technology to spy upon the email transactions of their workers,” he said.

Unions welcomed the introduction of the Bill and said that “Big Brother” behaviour by bosses should be criminalised.

Australian Workers Union (AWU) secretary Bill Shorten said email was akin to the modern version of the telephone and that most employees would not want their phone or internet usage monitored automatically.

However, according to Minna Knight, senior workplace relations policy adviser with employer group Australian Business Limited, “There is real concern about NSW going it alone and legislating for computer networks which operate across state borders and tracking devices used within and beyond NSW. This legislation risks prompting other States to ‘catch up’, with the danger that they will do so in different terms, resulting in further complications.”

Craig Donaldson is the Editor of Human Resourcesmagazine, Lawyers Weekly’s sister publication