Dixon, Tim --- "Workplace video surveillance" [1995] PrivLawPRpr 93; (1995) 2(8) Privacy Law & Policy Reporter 141

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Workplace video surveillance - controls sought

Tim Dixon explains the NSW Privacy Committee's Report.

The 1990s are busy times for the security industry. Manufacturers, consultants and retailers are experiencing a surge of business which saw sales increase by a quarter in the 1994-5 financial year, and which is likely to see similar growth in 1995-6. In response to its growth and to a significant industrial dispute involving the use of video surveillance, in late 1994 the NSW Privacy Committee initiated an inquiry into video surveillance in the workplace. The Committee has now released the its report, Invisible Eyes: Report on Video Surveillance in the Workplace, launched by the NSW Attorney-General Jeff Shaw on September 15.

The purpose of the Privacy Committee's Inquiry was to examine:

• the justification, nature, extent, and purposes of video surveillance in workplaces in NSW; whether video surveillance of particular areas in the workplace should be restricted or prohibited;
• any adverse impact of video surveillance on personal privacy; and
• whether any changes are required to laws, policies and administrative procedures.

While the report does not attempt to cover the issues raised by the use of video surveillance in public places, it also flags this as an important privacy issue.

During the course of the Inquiry, the Committee received written submissions from individuals and groups representing employers and employees, and members of the security industry. The Committee also conducted public hearings to receive further evidence from interested parties, and was in contact with other privacy and data protection agencies.

The growth of video surveillance

The report outlines how video surveillance is becoming a standard feature of security systems in both public places and workplaces. Australians have a voracious appetite for new technological devices, and information presented in the report suggests that Australia spends more money per capita on video surveillance equipment than most other industrialised nations. Cameras have become cheaper, smaller, and technically much better than in the past. They are now used in many areas, including roads, trains, railway platforms, car parks, loading docks, shopping centres, individual retail stores, banks, automatic teller machines, petrol stations, lifts, lobby areas, cash handling and storage areas and employee recreation rooms. The report looks at its usage in five main industrial contexts: retail stores; financial services; manufacturing, warehousing and distribution; larger office buildings; and leisure and entertainment complexes.

Video surveillance is used in these industries for several reasons:

• to minimise the risk of theft, especially in the retail industry for purposes of deterring and detecting crime;
• to protect premises from threats to property such as sabotage, arson and vandalism;
• to monitor individual employee work performance;
• to improve customer service by observing peak periods and planning the allocation of staff throughout the day;
• to assist in staff training;
• to enhance health and safety standards;
• to ensure that employees comply with legal obligations;
• to protect employers from liability claims;
• to monitor production processes.

Most surveillance systems are being installed to prevent theft, either by outsiders or employees. But evidence from the Committee's Inquiry suggests that once they have been installed, video surveillance systems often are used for a range of purposes beyond what was originally intended. Surveillance systems which are initially installed for the purpose of protecting property against an external security threat can be used for other purposes, such as to monitor employees' productivity and work behaviour.

Impact on employees' privacy

The report highlights the extent to which the routine use of video surveillance has the potential to undermine employees' sense of privacy and dignity in the workplace. Surveillance is associated with increased levels of stress, undermining morale and creating distrust and suspicion between employees and management. While it may be an effective instrument to protect an employer from external security threats, the Committee does not believe it is appropriate as a means of monitoring individual employee performance. Nevertheless, it appears that video surveillance is increasingly being used to monitor employees. In evidence to the Committee, private investigators confirmed that they were being hired by employers to place certain employees under surveillance in order to gather evidence used to justify removing the employee. The report suggests that besides being a serious privacy invasion, using video surveillance to monitor employees is a bad management practice, undermining the mutual trust relationship in the workplace.

It analyses the privacy implications of video surveillance in the context of the Committee's Data Protection Principles. This exercise shows how data protection principles may be taken beyond information privacy issues and applied effectively to surveillance issues. The report concludes that many employers' current practices relating to video surveillance may breach principles of fairness, consent, openness, relevance, use limitation, security and retention limitation.

In recent years the Committee has received an increased number of employment-related privacy complaints. The report briefly describes ten complaints relating to video surveillance in the workplace, from a diverse range of employees including services station employees, armoured vehicle drivers, hotel staff, office workers and shop assistants. These examples include covert surveillance, monitoring employee work performance, and deliberate harassment of an employee. Employees who contact the Privacy Committee seeking assistance are consistently surprised to find that there is no legal protection for their privacy. In most cases, they are also reluctant to pursue a complaint formally because they are still in an employment relationship.

The report notes concerns about the use of surveillance cameras in areas where employees have a higher expectation of privacy, such as toilets, showers, locker rooms and employee recreation rooms. The state's peak trade union organisation, the NSW Labor Council, has proposed amendments to the Industrial Relations Act 1991 to prohibit the use of electronic surveillance in toilets, locker rooms, dressing rooms and areas set aside for employees' use when they are not engaged in the direct performance of work. The Committee recommends that surveillance in toilets, showers and change rooms should be off-limits to anyone except police, who would be required to obtain a judicial warrant as they are required to do before using listening devices. Employers would be permitted to conduct surveillance in locker rooms and employee recreation areas in exceptional circumstances, and only then with a permit obtained from the Industrial Relations Commission.

Covert surveillance

The use of hidden cameras has been a major factor sparking community concern over video surveillance. Although hidden cameras occupy only around 10 per cent of the video camera market, the dramatic reduction in the cost of miniaturised equipment is making them increasingly popular (miniaturised lenses start from around A$500). Covert surveillance with a small number of hidden cameras may in fact be a much cheaper option than a general security system.

The report reviews several of the justifications offered for covert video surveillance, including that:

• employers have a right to protect their business interests;
• covert surveillance may affect fewer employees than overt surveillance and is much cheaper;
• if employees are unaware of surveillance there is less risk of industrial disputation;
• covert surveillance is often the most effective means of detecting unlawful activity.

The report argues that covert surveillance involves an extremely serious breach of employee privacy. On the other hand, employers have a legitimate interest in taking measures to protect their assets. The Committee does not opt for a total ban on covert surveillance. Instead, it seeks to balance the interests of employers with employees' privacy rights through a system in which employers must apply for a permit to conduct covert surveillance. Employers would need to show why the surveillance is justified, where and for how long it will be used, and what impact it may have on employees' privacy. They would also be required to inform employees afterwards that they had been under surveillance if the surveillance did not lead to some other legal or disciplinary action. The Committee proposes that the Industrial Relations Court would be an appropriate body to issues these permits.

The report reviews the range of controls over workplace video surveillance operating in other national and state jurisdictions to regulate the conduct of video surveillance in the workplace, including constitutional protections against privacy invasion, general privacy and data protection legislation, industrial relations and other laws, and protections under common law. It concludes that Australia lags behind other countries in establishing adequate privacy protection for employees. Australian laws do not restrict the use of video surveillance in the workplace because of the absence of privacy legislation with general private sector coverage. The report highlights the inconsistency that audio surveillance is regulated by both state and federal legislation, whereas video surveillance remains unregulated.

Recommendations

The Committee examines the range of options available, from taking no action at all to creating specific legislation on workplace surveillance. The report states that some measures should be taken to protect employee privacy from the unrestricted use of video surveillance. Otherwise, employees are likely to suffer an ongoing erosion of their privacy as the use of video surveillance becomes more widespread. Employers will also face continued uncertainty in relation to how they may conduct surveillance legitimately, without the risk that employees may respond with industrial action, or may challenge the admissibility of video surveillance evidence in court.

Several initiatives towards developing self-regulated standards for the industry have been initiated in the past year, including those from the Australian CCTV Association, the Retail Traders Association, the Australian Security Industry Association and the Motor Traders Association. The Committee rejects self-regulation as a solution on the grounds that many employees would not abide by the standards, they would not be enforceable against any employers, they would not prevent industrial disputes, and they would not prevent the development of inconsistent standards of privacy.

The Committee argues that co-regulatory options will not provide consistent and enforceable privacy protection. Guidelines issued under current privacy legislation would have inadequate enforcement powers. Workplace codes developed within the industrial relations system are also likely to lead to inconsistent privacy protection standards.

Legislative options

The report concludes that legislative controls would establish the most effective privacy protection for employees. Five options for legislative controls are presented.

1. Under amended privacy legislation, an enforceable code of conduct could be developed in consultation with interest groups and issued by a Privacy Commissioner.

2. A code could be enforced through an amendment to industrial relations legislation.

3. Specific amendments could be made to industrial relations legislation prohibiting:

• video surveillance for monitoring individual work performance;
• monitoring in certain locations within the workplace; and
• covert surveillance except with a specific permit.

4. Specific legislation for video surveillance could be developed along similar lines to the Listening Devices Act 1984 relating to audio surveillance.

5. Controls could be established through the existing licence requirements for security equipment suppliers and installers.

The report argues that a code developed under privacy legislation would be most effective because:

• privacy is essentially a human rights issue and is best protected by an independent agency than through a bargaining process;
• it would be consistent with a Privacy Commissioner's role;
• privacy protections within individual workplaces are more likely to be consistent within this framework;
• the process for resolving complaints is likely to be easier and more accessible; and
• it would establish a precedent for establishing standards on the use of other surveillance technologies in the workplace.

As set out in the accompanying table of recommendations, the Committee opted for a layered approach, setting out a range of prohibited uses of surveillance, a controlled system to issue permits for covert surveillance and surveillance in areas where employees had a higher expectation of privacy, and a general code or set of guidelines covering the normal operation of video surveillance systems.

The Committee's guidelines

In the absence of legislative measures, the Committee has also issued its own guidelines of video surveillance in the workplace. These guidelines could form the basis of any code which might be implemented if the NSW Government goes ahead with comprehensive privacy legislation. The guidelines cover 14 issues:

1. Justification prior to installing video surveillance
2. Prohibited uses
3. Consultation with employees
4. Notification in areas which are under surveillance
5. Regular justification for the continued operation of surveillance systems
6. Camera operating hours
7. Location of surveillance cameras
8. Conduct of surveillance
9. Access to tapes
10. Retention of tapes
11. Restrictions on external access to tapes
12. Employees' rights to view tapes
13. Exceptions from the guidelines
14. Compliance with the guidelines

The Privacy Committee's report aims to strike a balance between the business interests of employers and reasonable standards of privacy protection for employees. It highlights the inadequacy of current legal protections for employees, and the inconsistency of the current legal protections of privacy. But in a broader sense it draws attention to the problem that while many new technologies continue to raise major privacy issues, there is no general mechanism in which these issues are addressed. In launching the report, the NSW Attorney-General, Mr Jeff Shaw QC, acknowledged this problem and again committed the Government to implementing privacy legislation in the near future, probably early in 1996.

Tim Dixon researched and wrote the Committee's report while he was a Research Officer for the Committee.

Recommendations of Invisible Eyes: Report on Video Surveillance in the Workplace

The Privacy Committee believes that the most effective form of regulation of video surveillance in the workplace would be through the following measures:

1. The amendment of industrial relations legislation to:

(a) prohibit video surveillance for monitoring employee work performance;

(b) prohibit the use of video surveillance in certain areas such as toilets, showers and change rooms;

(c) require a permit from the Industrial Relations Court for:

• the use of surveillance in locker rooms and employee recreation rooms; and
• any use of covert surveillance in the workplace, including a requirement of compliance with strict guidelines relating to its operation.

The Industrial Relations Court would have the authority to enforce these provisions, including the power to make orders to require employers to remove cameras, and to impose penalties for breaches of provisions referred to in 1(b) and 1(c).

The Privacy Committee would be willing to work in consultation with the Department of Industrial Relations in making the necessary changes to industrial relations legislation to implement these recommendations.

The restrictions on covert video surveillance would not apply to surveillance conducted by law enforcement agencies. It would be more appropriate to develop privacy protections relating to the conduct of covert video surveillance by law enforcement agencies through legislation similar to the Listening Devices Act 1984. This Act promotes accountability by requiring the police to obtain warrants and to report on certain matters. The Committee believes the Listening Devices Act should be reviewed in light of the growth in the number of warrants granted for audio surveillance and the need for consistency in legislation covering audio and video surveillance in matters such as police warrants.

2. Privacy legislation should be enacted to establish the Office of Privacy Commissioner of NSW, to oversee the application of the Data Protection Principles to the public and private sectors. The legislation would include provisions for the Commissioner to develop codes of conduct in consultation with industry. The Commissioner would have powers to receive complaints, and to investigate and report on breaches of the Data Protection Principles or codes of conduct. A code of conduct on video surveillance could be developed, perhaps based on the attached guidelines, and after any necessary modifications the Privacy Commissioner could enact the code, making it enforceable. On application, the Commissioner could grant exceptions from the code for particular activities or workplaces.

3. Until such time as the Office of the Privacy Commissioner is established, the Committee recommends adoption of the attached guidelines by employers. The Committee will investigate and act upon complaints relating to acts and practices which breach the guidelines.