A Victorian police inquiry into the legality of the setup continues.

Would such surveillance be legal in NZ?

Experts say the crux of it is that an employer can monitor an employee working from home, but the staffer must be informed about the surveillance and how any collected data will be used – and there can’t be any over-step.

“In New Zealand, using a laptop as a listening device to monitor employees could be a criminal offence if the employee is not aware of the recording,” a spokeswoman for the Office of the Privacy Commissioner said.

“It is generally illegal to make a covert recording of a conversation that you are not part of (section 216B of the Crimes Act 1961 makes it an offence to record private communications).

“Even if the employee is aware their employer is recording them, using a laptop as a listening device may breach the Privacy Act, … employers are not allowed to collect employee information just because they can – there must be justification about why the information is required for the employer’s business to function.”

Hard not to break the law

Employment lawyer Jennifer Mills notes Safetrac staff claimed their children started whispering to avoid having their voices heard.

“It is hard to see how information on a conversation between an employee and their child could be considered necessary to a company’s purposes,” Mills said.

“Overall, I think it would be difficult for a company to incorporate a policy like the one you have referred [Safetrac’s alleged conduct] to in a way which is not legally problematic.

“Unless a company has some reasonable suspicion that an employee has breached their employment agreement or workplace policies such as the company’s health and safety policy, a company would need to obtain express or implied employee consent,” Mills said.

“Even after employee consent has been obtained, it would be difficult for a company to ensure that it avoids breaches of the Privacy Act 2020 or the Employment Relations Act 2000.”

Section four of the Employment Relations Act 2000 required employers to deal with employees in good faith at all times, Mills said.

“Meaning that monitoring must be proportionate and fair. An employer recording the conversations of employees who work from home seems disproportionate and unfair, and therefore likely in violation of the act.”

The Office of the Privacy Commissioner spokeswoman said Principle four of the Privacy Act holds that “Information cannot be collected in ways that are unreasonably intrusive. For example, tracking employees when they are off-duty.”

Overall, “it could be difficult for an employer to show it is not intrusive to record an employee in their home,” she said.

The OPC spokeswoman also offered some low-tech advice.

“If an employer has concerns about an employee’s performance, they should take steps to manage their concerns, such as talking directly to the employee or following a performance improvement process,” she said.

‘Won’t give you their all’

Outside of legal issues, Massey University Professor of Management Jarrod Haar said covert remote monitoring could actually lower productivity.

“The literature tells us surveillance has major issues around justice and in this case injustice and that’s why people react poorly. If people don’t trust you, they’re not going to give you their all.

“I was quite flabbergasted by the whole thing. It’s definitely not recommended in my opinion. It’s an overstep of technology in the workplace.”

Haar said remote-monitoring technology, including keyboard and mouse movement monitoring, already made him uncomfortable.

“Now, employers can use AI to sort through it all and find something to use against you.”

Kiwi roots

The Melbourne-based Safetrac, which has an office in Auckland, was spun out of law firm Minter Ellison Rudd Watts in 1999 to offer online policy, risk-management and compliance training, ironically (its accusers might say) to enhance ethical behaviour and safeguard a company’s reputation.

Its founders included Minter Ellison partner Ross Patterson, who was New Zealand’s Telecommunications Commissioner between 2007 and 2012 and later moved across the Tasman.

Another Minter Ellison veteran, Deborah Coram, bought out the law firm and is now Safetrac’s majority shareholder and CEO.

Clients on this side of the Tasman include Air New Zealand. Safetrac is accused of covertly monitoring its own staff and not staff of any clients.

Safetrac did not immediately respond to a Herald query, but LinkedIn Insights indicates its Auckland office is a satellite with only two staff, next to 55 in Australia.

Chris Keall is an Auckland-based member of the Herald’s business team. He joined the Herald in 2018 and is the technology editor and a senior business writer.