Employers are barely toeing the legal line, and in some cases are stepping over it altogether, when it comes to their workplace surveillance practices.
Harmers Workplace Lawyers senior associate Bronwyn Maynard believes many employers have inadequate guidelines for workplace surveillance practices, risking breaches of privacy and surveillance legislation.
In Maynard's experience, the most common form of workplace surveillance is email and internet monitoring, and she believes many employers are unaware of their legal obligations in this area.
The NSW Workplace Surveillance Act 2005, for example, requires employers to provide employees with at least 14 days' written notice before undertaking such surveillance, but many employers are failing to comply with this.
"Employers put themselves at risk by undertaking such computer surveillance without having an appropriate policy in place which puts employees on notice that such surveillance may be undertaken," she said.
Maynard believes that advances in surveillance software, and falling prices of such software, have heightened the problem.
"When combined with the lack of knowledge of many employers of their obligations under surveillance and privacy legislation, these advances in software have led to an increase in the number of employers breaching [privacy] legislation," she said.
Maynard explained that problems have also arisen because new surveillance technologies have been developed that are not necessarily captured by the existing legislation which is often "tied" to particular technologies.
At least partly in response to this issue, the Australian Law Reform Commission released a report in August last year recommending a number of reforms to overcome this legislative shortcoming.
"The reforms being considered include moving to an approach in privacy and surveillance legislation that is more technology-neutral, so as to capture advances in technology," Maynard explained.
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