Working from home – under surveillance?

Working from home – under surveillance?

Since 2020, a large percentage of Australians have been working from home (due, of course, to the ongoing COVID-19 pandemic). This change in work-life balance brought about a number of new challenges for employers: empty work spaces, empty rental agreements and a whole generation of workers who have not yet found themselves around the watercooler discussing cricket, politics or the ever present “…how was your weekend?”.

However, working from home has brought with it a series of new challenges for employers too: perhaps unforeseen ones. Today, we will be discussing the legalities around working from home – with a specific focus on monitoring software for white collar employees.

Monitoring software on smart devices (such as laptops, tablets and smartphones) is nothing new. Since the early 1990s, a small number of employers have been using software to check in with their remote employees – making sure they are indeed performing the duties that the company is paying them to perform. These solutions are historically prevalent in blue collar industries, where employees are strictly monitored (either through the internet or simply through ‘punch in/punch out’ time keeping systems).

These tools and software solutions were often touted as ‘performance monitoring tools’ or ‘kpi analysis tools’ – designed to ensure software developers, sales and marketing teams were reaching their quotas. (https://www.sumologic.com/blog/monitoring-tools-history/)

Since 2020, however, there has been a much greater demand for employee monitoring tools in the workplace – notably due to the impact of COVID-19. Now, it makes sense to include software packages designed specifically for monitoring and surveillance on employees’ smart devices to guarantee they are indeed performing the tasks the business is paying them for.

As ABC News (https://www.abc.net.au/news/science/2022-05-06/workers-returning-to-offices-covid-surveillance-software/101019128) puts it: “”Employee monitoring software” became the new normal, logging keystrokes and mouse movement, capturing screenshots, tracking location, and even activating webcams and microphones.”

Surveys suggest that, even with the full time return to offices imminent for some employers, these software solutions will remain intact. And, as these solutions grow more and more sophisticated, there’s a concern that this particular area of legislation has been somewhat missed by policymakers, who make such an impact on the Australian workforce.

Generally, there are no specific laws concerning surveillance software. In NSW for example, there’s only one law (Workplace Surveillance Act 2005 (NSW) s10, s12) which notes that employers have the legal right to install and utilise monitoring software on company supplied devices – so long as the employee is made aware of the usage.

In VIC, ACT and NSW it’s also illegal to install optical monitoring devices inside workplace toilets, bathrooms, change rooms etc – however, there’s no specific legislation concerning surveilling through company owned laptops or smartphones. There is no current legislation in TAS, WA, NT, QLD mentioning surveillance in any context.

So long as there’s consent between workplace and employer, companies can install and utilise whatever software they desire to monitor. So long as it’s contractual, and agreed upon – it’s considered legal. If you, however, suspect your employer is utilising software to monitor or record your actions without your consent – there might be a case to be had. Contact SP Garrett today – we’re here to help.