Eye in the sky – Drones, employees and surveillance

Key Points: 
  • Drones are useful risk mitigation tools for businesses.
  • With correct notice and common sense the law permits their use. 
  • For investigations, do not over rely on the video.

If your work place involves a large site, the use of a drone can be a way monitor many types of risks.  But are there any obstacles to using a drone in the workplace? Well…yes … but they can still be a good option as part of any risk mitigation.  

The easy part
The good news is that the Civil Aviation Safety Authority (CASA), which regulates all things aviation, permits the use of drones by landholders (including lessees) without a licence subject to some simple rules (see: https://www.casa.gov.au/aircraft/standard-page/excluded-remotely-piloted-aircraft-flying-over-your-own-land)

Then it gets slightly messy
In NSW, there are two pieces of legislation dealing with drones the Surveillance Devices Act and the Workplace Surveillance Act.   However, for the purposes of the workplace, the Workplace Surveillance Act is the relevant law.

Overt v. Covert
The Workplace Surveillance Act (NSW) prevents the use of covert (hidden camera) surveillance without first applying to a Magistrate for permission.  However, it allows the use of a surveillance camera (i.e. including on a drone) where it is ‘… clearly visible’. 

Notifying staff
Prior to use of drone surveillance, or indeed any other form of optical surveillance within a workplace, the Workplace Surveillance Act requires that employees be notified in writing at least 14 days before the surveillance commences.  The Act outlines what needs to be in that notice.

What is a workplace?
The definition of the workplace under the Workplace Surveillance Act is quite broad, being: ‘…the premises of the employer or any other place where the employees would work.’ 
There are a few more obstacles when seeking to use a drone to film employees at work on someone else’s site.

No scope to monitoring employees out of hours
The Workplace Surveillance Act prohibits using a work surveillance device by employers to monitor employees out of hours. 

What can you use the video from the drone for?
The Workplace Surveillance Act restricts the use of drone video that shows employees to legitimate business activities or functions of the employer (ie. security) or the employment of employees (ie. WH&S).

This would allow it to be used for training purposes.  However, commonsense and discretion need to be used if drone video is to be used for such purposes – particularly if it shows employees in a manner that could be humiliating. 

Where employers come unstuck
The temptation is for employers to rely too heavily on video evidence when they believe it has exposed misconduct.  

Video evidence is rarely conclusive and needs to be used alongside conventional investigation evidence. 

It:
  • Can be too distant or the image is dimly lit; or
  • Does not capture the precise moment of the misconduct; or
  • Is taken at the wrong angle to clear a clear understanding of their conduct. 

It should generally only be part of your evidence.  Also, if employers wish to rely on it, they need to show it to the employee who is the subject of the investigation, as part of their investigation process.  Where they do not, an ensuing dismissal has on more than one occasion been overturned.

Post by Warwick Ryan 

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