Under the Lens: Electronic Workplace Surveillance

Abstract

Electronic surveillance has become a feature of many Australian workplaces. The first part of this article explores the relationship between this surveillance and the fundamental norms of employment law, including the emerging concept of trust and confidence. Notwithstanding the promise offered by the concept of trust and confidence, it is suggested that electronic surveillance is a rational corollary of the coercive aspects of the relationship established by the fundamental norms of the contract of employment. The second part examines recent New South Wales and Victorian legislation dealing with electronic surveillance. This examination reveals that the NSW legislation offers significantly greater protection for workers than its Victorian counterpart. However, it is also observed that the NSW scheme contains significant gaps, especially in relation to overt monitoring and forms of surveillance other than by video. Finally, it is suggested that although the Victorian legislation does provide some protection for employee privacy, that protection is narrow and, moreover, is likely to be undermined by those provisions which may give employers the opportunity to contract-out of the Act’s safeguards.

Keywords: labour law, labor law, employment law, electronic surveillance, human rights