Category: legislation

It started with a few lines of legalese and one of those simple tick-a-box consent forms. Staff and their families seeking privacy took to whispering in their homes or stashing the laptops in their closets. Victoria Police has launched an investigation, and an employee has been granted compensation after developing anxiety and depression. The company says that all the monitoring was consented to by employees.

This level of surveillance might sound like something out of Stasi-era East Germany, but it reflects a new workplace battleground—between employers worried about employees who might be slacking off, and workers’ rights to privacy in their homes, even when they’re on the clock.

Not all employees act in good faith. I’ve seen extensive time theft that only surveillance would reveal while employees are allegedly working from home. Examples include an employee doing six weeks of home renovations while on the clock, another streaming pornography daily (even during work Zoom calls), and one building a popular OnlyFans business during working hours while employed as an executive assistant. Following forensic investigations, these employees were lawfully dismissed for breach of the duty to serve their employer diligently and in good faith.

When everyone was in the office, it was easy to see who was present, engaged, or collaborating. Now, managers struggle to know what people are doing, where, and when. Some employers think the solution is electronic monitoring on laptops and phones—devices that they provide and workers willingly carry with them everywhere.

Secret recordings carry a stench of distrust, but there is a place for some monitoring of staff, if there are safeguards. This isn’t about the employee who takes a short break to vacuum between tasks or ducks out briefly to do some shopping while working from home. That’s normal and reasonable.

I’m talking about employees who abuse flexibility—fudging timesheets, disappearing for hours, delegating their work to others, or prioritising side-hustles during paid time. In those cases, employers are entitled to know where their workers are for significant parts of the day, especially where there’s a history of performance concerns or misconduct.

Surveillance of employees isn’t entirely new. In 2003, postal service workers in the UK were exposed for covertly filming employees, sparking union disputes. In 2007, a US retailer monitored staff calls and emails. And in 2020, a UK financial institution secretly tracked computer use, even bathroom breaks. Each case had one thing in common: employees felt spied on by their boss, not trusted.

But is surveillance legal? We’re all familiar with the customer service warning that “this call may be recorded for training and quality control purposes.” According to the Office of the Australian Information Commissioner, Australia’s Privacy Act doesn’t specifically cover surveillance in the workplace. What the Act does say is that it may be reasonable for employers to monitor some activities to ensure staff are doing their work and using resources appropriately—provided they have been informed in advance.

At the heart of the employment relationship is trust, and when it is lost, employee welfare suffers. This is recognised by the Commonwealth’s Work Health and Safety (Managing Psychosocial Hazards at Work) Code of Practice 2024, which includes intrusive surveillance (e.g., tracking work hours, calls, movements, keyboard activity, or remote computer access) as a new form of psychosocial hazard, triggering employer duties of care under health and safety legislation.

For the first time, the Code explicitly recognises that intrusive surveillance doesn’t boost productivity; it undermines it by compounding stress, lowering job satisfaction, and eroding worker trust. Although the Code must be adopted by states and territories to take effect outside federal workplaces (such as the Commonwealth public sector), the message is clear: the regulatory focus is shifting towards the harms of excessive workplace monitoring.

There is no doubt workplace surveillance takes on a new dimension when it intrudes into the homes of employees working remotely. Employees may tolerate supervisors walking the office floor to monitor productivity, but installing devices or software to covertly record conversations on home laptops is far more intrusive and could breach state surveillance laws aimed at prohibiting the recording of private activities without consent.

In the US, Pennsylvania Congressman Christopher Deluzio has proposed the Stop Spying Bosses Act, which would require employers with more than 10 employees to disclose all workplace monitoring, ban off-duty surveillance or in sensitive areas such as homes, and require consultation where decisions such as promotions or discipline are based on surveillance data.

In Australia, while it’s illegal to have recording devices in bathrooms, our laws have not developed to compel employer disclosures of this kind. Australian employers should take cues from Deluzio’s progressive proposals. Many employees remain unaware that their employer may be conducting surveillance. At best, there’s often only a vague reference buried in an employment contract signed on day one and rarely revisited.

Employees should be clearly informed if, when, and how recordings occur, and exactly what the data will be used for. High-performance cultures aren’t built on suspicion. Trust and autonomy, not surveillance, are what drive engagement and results.

If an employer needs to tape the conversations of its workers and monitor their every movement, maybe the problem is not the workers, but the leadership team.

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*Paul O’Halloran is a partner and head of office at law firm Dentons Australia.*

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https://www.theage.com.au/business/workplace/the-snooping-boss-the-exec-assistant-s-secret-onlyfans-business-and-our-right-to-sneak-a-break-20250903-p5ms1n.html?ref=rss&utm_medium=rss&utm_source=rss_business