With the ever decreasing costs of electronic equipment, more employers are being tempted to install video and audio surveillance equipment in classrooms. IEU VicTas Senior Industrial Officer Denis Matson writes.
There can be legitimate reasons to consider the use of classroom video cameras – to protect property, staff and students for example. But most schools have concluded that these reasons are far outweighed by the risks – legal exposure, compromise to privacy, dignity and working conditions, workplace health, discrimination, as well as excessive control over employees and the consequent suspicion and resentment.
Both state and federal legislation is relevant. The Privacy Act 1988 (Cth) touches on electronic surveillance, and each state and territory has legislation. In most states and territories, surveillance legislation applies more broadly than the workplace (the Listening and Surveillance Devices Act 1972 (SA), the Surveillance Devices Act 1998 (WA), the Surveillance Devices Act 2007 (NT), and the Listening Devices Act 1991 (Tas)). Specific workplace privacy legislation exists only in NSW (the Workplace Surveillance Act 2005 (NSW)) and in the ACT (the Workplace Privacy Act 2011 (ACT)). In Victoria the Surveillance Devices Act 1999 (Vic) has one part dedicated to workplace surveillance.
Despite the plethora of legislative instruments, the regulation is far from satisfactory in any jurisdiction. The complexity of interaction between state and federal legislation, the slow pace of reform and inconsistencies between state and territory jurisdictions are strong grounds for creating a single consistent approach. This was advanced by the Australian Law Reform Commission: “Establishing uniform workplace surveillance laws in each of the states and territories would provide greater privacy protections for employees and greater certainty for employers”.
In the meantime, employers must comply with both state and federal statutes. In this article we have considered only the Commonwealth, Victorian and NSW Acts.
Privacy Act 1988 (Commonwealth)
Under the Privacy Act an employer has several responsibilities:
• only collect, use and disclose personal information (any information which identifies or could potentially identify an individual) in a manner that is consistent with the National Privacy Principles (NPPs)
• maintain the security of personal information held about employees, and
• provide individuals with access to personal information held about them.
It is not certain whether video records of teachers are covered. An act or practice is exempt if it is directly related to a current or former employment relationship and an ‘employment record’. It is arguable that surveillance tapes may fall within the definition of ‘employment record’, though as it has not been tested, and the Law Reform Commission of Victoria notes in its discussion paper, Privacy Law – Options for Reform, this is a subject that might be targeted for reform. In addition, any recording of a classroom is certain to record students, and records relating to non employees (including students) would not fall within this exception to the Privacy Act.
The NPPs contain a number of constraints relevant to workplace surveillance, including:
• collection must be necessary
• information must be collected lawfully, fairly and, generally, with the individual’s consent
• generally information can only be used or disclosed for its original purpose (unless the person has consented to another purpose)
• employers must take reasonable steps to protect personal information from misuse, loss, unauthorised access, modification or disclosure
• employers who collect personal information must document their practices and make this information available on request, and
• organisations must give individuals access to their personal information and allow them to correct it or explain something with which they disagree.
Surveillance Devices Act 1999 (Vic)
The Surveillance Devices Act 1999 (Vic) restricts the communication and publication of private conversations and activities caught on video and audio devices and creates offences relating to the improper installation or use of surveillance devices.
The Act gives clear protections against video recording in some places (like toilet cubicles, shower areas, change rooms, lactation rooms and parts of workplaces where others can be prevented from observing the activity such as in an office with covered windows). However, the Act does not restrict surveillance in ‘public areas’. Generally classrooms will be in this category. To date, recommendations of the Victorian Law Reform Commission to better protect privacy in the workplace have not been implemented
Workplace Surveillance Act 2005 (NSW)
Under the Act surveillance of an employee is limited to surveillance by a camera, surveillance of computer usage (including emails and access to websites) and tracking location/movement. Audio surveillance is covered by the Surveillance Devices Act 2007 (NSW).
The Act prohibits (with exceptions) covert surveillance without court approval and:
• prohibits surveillance in a change room, toilet facility, or shower or other bathing facility at a workplace, and
• restricts and regulates the blocking of emails and internet access of employees at work, particularly preventing employers from blocking access to emails or internet sites relating to industrial matters.
Under the Act, written notice must be given at least 14 days prior to any surveillance commencing. The notice must set out specified details. For new employees, notification must be given before they start work.
Cameras must be clearly visible and signs must notify people that they may be under surveillance and must be clearly visible at each entrance.
Appropriate and proportionate?
Given the risks to employers from breaches of various legislation, any plan to introduce surveillance must be well thought through. Where it may be reasonable to use cameras in places where crimes may otherwise take place (banks, shops etc), classrooms are very open places where theft and vandalism are relatively rare. Most things that happen in a classroom are witnessed by a teacher and a number of students. The need for cameras is therefore less and the justification for having them is much weaker.
The effects of monitoring staff and students
Under workplace safety legislation in each state (such as section 21 of the Occupational Health and Safety Act 2004 (Vic)), an employer has a responsibility to provide a working environment which is safe and without risks to health. An employee can argue that video surveillance is unnecessary and intrusive and therefore subjects them to harassment and stress – creating a risk to their health and safety.
Workplace surveillance may also impact on employees’ morale and create distrust and suspicion between employees and management. Braue (see references) suggests that employee monitoring is: “likely to cause resentment among workers if they feel they are being spied upon or continually pressured to improve their performance… it could backfire on employers by fostering low morale, widespread resentment and a negative public image that can be difficult to repair”.
Kim Heitman (Electronic Frontiers Australia) believes that if you adopt a monitoring policy on the basis that all your employees are out to get you, then you establish an ‘us and them’ situation. Sempill (Under the Lens) argues that electronic surveillance is a tool that reinforces the employer’s power in the employment relationship by giving the employer an additional opportunity to enforce obedience to the employer’s directions and by providing a means to gain objective evidence of behaviours which might be used to justify dismissal of employees.
This, and much other research, points to the creation of unhealthy and distrustful workplaces. Chris Connelly (Campaign for Fair Privacy Laws; Financial Services Consumer Policy Centre) says that it is “totally unrealistic” to expect employees won’t occasionally have some need for privacy and that it is easier to keep staff if they are not scared by a dictatorial workplace.
The purposes of surveillance
Employers sometimes assert that monitoring is a useful tool in performance appraisals, or for dealing with poor performance or conduct. Used judiciously, a recording of a teacher can be of assistance in providing feedback. This is best done only with a mentor in the room and only for this purpose. The fact that the recording will be used for feedback only and will be destroyed immediately is a key part of its usefulness and essential to the teacher having confidence that the practice is legitimate.
This is a fundamentally different practice to setting up permanent cameras. If teachers cannot be sure of all of the purposes for which the recording may be used, all of the issues identified above come to the fore.
It may be unlawful to ‘publish’
Employers are exposed to penalties if recordings are shown in breach of legislation. Any showing to a third person is technically a ‘publication’. Given how difficult it can be to store and protect video recordings, employers need to be careful that they have policies and procedures in place to prevent unlawful ‘publication’ or suffer the consequences.
Are people who are likely to be recorded fully aware of this?
Students, staff, parents and others who may be recorded are entitled to know that this is happening. There should be signs posted which make this clear (and in some jurisdictions, this is mandatory). While a recording may be legally admissible, an employer who fails to advise an employee that they are being recorded may find that the recording is not helpful to them. For example, in Gervasoni v Rand Transport, while the Full Bench found that the termination of the employee’s employment (for tampering with a vehicle’s speed controls and speeding) was not harsh, unjust or unreasonable, it did note that the fact that the employee was not advised of the GPS system in the vehicle weighed in favour of a conclusion that the termination was harsh.
School exposure to action
Innocent parties may have an action against the school if their images are recorded and not kept private. A school may find itself legally exposed if it has installed cameras without having proper systems in place to prevent misuse. Schools need to consider their exposure if, for example, someone accesses a video with children on it. Does the school have adequate policies to protect itself, the staff and students?
Surveillance being used selectively
Both state and federal legislation prohibits discriminatory conduct on the basis of a number of attributes such as industrial activity, political belief or activity, and race. If workplace surveillance is used either directly or indirectly to monitor the activities of those who fall within one of the attributes, that surveillance could be said to constitute discrimination.
The Fair Work Act protects employees from ‘adverse action’ for reasons such as having a ‘workplace right’ or making a complaint or enquiry about their employment. Selectively monitoring employees could expose an employer to allegations that the surveillance is done for a prohibited reason.
Employer obligations to consult
Employers with an enterprise agreement are generally obliged to consult employees over any introduction of major change. Introducing surveillance almost certainly constitutes such a change. The employer must consult with employees regarding the change and any measures to avert or mitigate adverse effect on employees. There have been cases where the failure to consult with employees has resulted in the employer having substantial penalties ordered against it by a court.
Conclusion
We are now well accustomed to seeing cameras in lifts, foyers, shops and banks. Video surveillance on television police dramas is a common crime solving technique. What we are not used to is being constantly recorded and monitored in the workplace where such a large part of our lives is spent.
While the lawful use of cameras and microphones might appeal to some employers – and sometimes seem to be justified on safety, security and efficiency grounds – the whole question should be approached with great caution. A number of schools have installed cameras in knee jerk reactions to particular events and not properly considered the consequences.
The downsides, including the employer’s exposure to prosecution, privacy infringements, impediments to learning and the ill will that cameras in the classroom can create cause most schools to be rightly reticent. Periodic urgings by law reform bodies may ultimately result in more consistent legislation, probably containing more restrictions on the use of cameras and microphones in workplaces. In the meantime, it will be mostly brave and impetuous school leaders who venture to test the labyrinth of current laws on surveillance devices.
References
Serious Invasions of Privacy in the Digital Era, ALRC Report 123 (3 September 2014) at 14.84
Braue D, Every Breath You Take, The Bulletin, January 25, 2000.
Sempill J, Under the lens: Electronic workplace surveillance (2001) 14 Australian Journal of Labour Law 111 at 114.
Gervasoni v Rand Transport (1986) Pty Ltd [2010] FWAFB 2526,