The Victorian Government is taking decisive action to modernise workplace surveillance laws, addressing the challenges posed by emerging technologies and evolving workplace practices. These reforms are based on the Legislative Assembly Economy and Infrastructure Committee’s Inquiry into Workplace Surveillance, which underscored the importance of striking a balance between protecting workers’ rights and enabling legitimate surveillance activities.
Key recommendations supported by the Victorian government
The Government has expressed in-principle support for 15 of the Inquiry’s 18 recommendations and is now working on drafting new laws. If implemented, these changes will impose new obligations on employers and enhance privacy protections for employees. Below is an overview of the supported recommendations:
Recommendation 1: Technology-neutral legislation
Principles-based workplace surveillance legislation that is technology neutral. Employers must prove through a risk assessment that workplace surveillance is reasonable, necessary, and proportionate.
Recommendation 2: Transparency requirements
Require employers to notify employees 14 days in advance in writing about surveillance methods, scope, timing, and purpose, as well as surveillance data usage and storage.
Recommendation 3: Consultation
Employers to consult with employees before introducing or changing surveillance practices in the workplace.
Recommendation 4: Workplace surveillance policy
Requirement for employers who conduct surveillance to have a workplace policy that is provided to all employees.
Recommendation 5: Restriction on covert surveillance
Covert workplace surveillance restricted to cases where an employee is suspected of unlawful activity, the employer has obtained a court order to undertake the surveillance, and an independent surveillance supervisor has been appointed to the case.
Recommendation 6: Review of automated decisions
Employers required to have a person with delegated authority review any automated decision made using workplace surveillance data that could significantly affect a worker (particularly their rights, interests, or employment status).
Recommendation 7: Education and support services
Victorian Government to work with employer groups to provide education and support services and material to employers about any changes to workplace surveillance regulation.
Recommendation 8: Employer-only surveillance
Employers required to take all reasonable steps to prevent surveillance of an employee while at work by someone other than the employer (without the employee’s consent).
Recommendation 9: Privacy protections
Employers must inform employees who is collecting workplace surveillance data, how the data is stored and disposed of, who can use the data and for what purpose, and how long the data will be kept.
Recommendation 10: No sale of data
Employers must not sell employees’ personal data, or any data collected about employees through surveillance, to a third party.
Recommendation 11: Protection of data
Employers must ensure that any third party they contract to collect or store workplace surveillance data takes reasonable steps to protect the data and complies with the employer’s workplace surveillance policy.
Recommendation 13: Access to data
Employers, upon request by employees, must give the employee access to workplace surveillance data generated about them.
Recommendation 14: Amendment of Privacy Act
Victorian Privacy and Data Protection Act 2014 (Vic) to include biometric data in the definition of sensitive information.
Recommendation 15: Restrictions on collection of biometric data
Employers restricted from collecting and using employees’ biometric data to circumstances where there is a legitimate purpose that cannot be achieved through less intrusive means.
Recommendation 18: Appointment of regulatory body
Appointment of the Office of the Victorian Information Commissioner, WorkSafe Victoria, or other appropriate body as regulator with power to inspect workplaces, investigate and resolve complaints, and prosecute offences.
Next steps
The Victorian Government is considering whether amendments to existing legislation would suffice or if a new standalone Act should be introduced. If implemented, these reforms would establish the strongest workplace protections in Australia. Stay tuned for further updates as this progresses.
