Employers must know the rules to avoid 'breach of privacy and surveillance legislation,' says lawyer
Despite economic uncertainty, Australian workers love for working from home is set to continue in 2023 and beyond.
Multiple surveys reveal that more than half the workforce in Australia prefer working from home as they save money, work more efficiently, can manipulate their hours to suit their day and don’t have to dress up.
While most employers are requesting that employees return to the office at least two days a week, there is a big resistance about having to spend time in the office.
The University of Melbourne found that over half of respondents (58 per cent) to a survey have work tasks that can be undertaken from home.
This poses the question: How do you effectively monitor work-from-home employees?
“Subject to compliance with privacy, tracking and monitoring legislation, employers may be able to use technology to track productivity on employees’ devices,” Catherine Stephens, associate director of employment Law at BlueRock, said.
“While lawyers and accountants are used to having to account for their time in six-minute blocks, employers whose employees work from home can ask staff to complete timesheets which can be cross-referenced against the use of work devices.”
Not every employee's work output can be reduced to a time entry, and many cannot, she said.
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“So the best way to monitor at-home performance is to track the delivery of the employee. Ask yourself if they have delivered the piece of work in the timeframe and to the standard expected.”
The use of new technologies to monitor workers has become so prevalent that regulators in the UK and US are facing growing calls to restrict employers’ power to track their staff, according to a recent report.
Putting rules in place
Employers can list rules and regulations for employees to follow — whether they are deadlines, regular meetings or parameters around certain hours of the day when employees must be available.
Employers have every right to enforce these rules, as long as they don’t sit outside of any awards or pre-agreed contractual terms, said Stephens.
“When introducing any monitoring system, employers should ensure that they can do so lawfully, have consulted with employees, and have the correct policies and agreements in place,” she said.
“If employers don't follow a lawful process, there is a risk that the employer will not be able to rely on the data in performance management processes and may be in breach of privacy and surveillance legislation and the Fair Work Act.
As a result, it’s recommended that you speak to a lawyer before implementing a monitoring system, said Stephens.
Privacy issues
Employer do have to be mindful of privacy issues, as strict laws are in place. Employers rarely have the right to monitor an employee without their permission unless it is clearly stated in their contract.
“Privacy is the first issue that employers must consider,” Stephens said. “There is very little scope for an employer to unilaterally impose tracking or surveillance on employee devices, or on any other property, such as motor vehicles.”
“If an employer wishes to implement some form of tracking, it must consult with existing employees and obtain their consent before monitoring commences.”
Consent is key, she said.
“Consent can be expressed or implied, and employers should include a term in their employees’ employment agreements regarding surveillance to ensure that there is no breach of the applicable legislation, which can differ state to state.”
How much autonomy should be given to employees?
Some employers are still grappling with how much autonomy to give employees. Depending on the size of the company, the industry and the role, it is not an easy question to answer as many variables play a part.
Productivity can be measured where tasks have a specific outcome but anything in-between won’t be so straightforward, said Stephens.
“The degree of autonomy to give to employees varies depending on the individual worker,” she said. “There may be some who can work efficiently and independently from home, and others who require a greater degree of supervision.”
Monica Watt, CHRO at ELMO, previously told HRD: “We need to distinguish the difference between monitoring performance of an employee and monitoring the behaviours of an employee.
In managing employees, employers should be careful not to micromanage, said Stephens.
“Reviewing employee performance and productivity is a useful way for an employer to determine how much autonomy an employee ought to be given.”