Electronic Monitoring Policies in Ontario – A Possibility for New Zealand?

The frequency and intensity with which employees are monitored by employers through the use of electronic systems have been amplified with technological advancement in recent years, raising privacy concerns in many countries.

This has been further compounded by the surge in work from home arrangements, as employers are increasingly concerned about how (and whether!) their employees are working when out of view.

It started with some businesses recording telephone calls within their systems and with the installation of external video cameras / CCTV, on business premises.  However, monitoring has since progressed to include cameras inside the workplace, GPS in mobile phones, automatic recording of mobile telephone conversations, monitoring remote work through digital systems, biometrics and facial recognition, GPS monitoring of vehicles, as well as the recording and storing of that information.

Some have criticised that in the wake of such rapid technological advancement, the law has had little time to adapt and is being left behind.  It would be challenging for an employee to establish grounds that satisfy the claims available in the Employment Relations Act 2000, and less challenging for an employer to provide plausible reasons to justify its use.  The common law approach has historically favoured an employer’s right to conduct business as they see fit over the rights of employees when it comes to privacy.   

There are some restrictions on employers in New Zealand, and electronic monitoring is mainly (but not exclusively) regulated by the Privacy Act 2020.  This is principle-based legislation overseen by the Privacy Commissioner, who provides excellent guidance on the use of some of these systems, for example CCTV.  The Privacy Act stipulates that the means of collecting information should be fair and not be unreasonably intrusive.  This became particularly relevant during lockdown in situations where some employers were requiring laptop cameras to be on during working hours, even in the employee’s own home.  Nevertheless, the application of these monitoring systems has become so prevalent that it gives the appearance of being completely unrestrained.  Worse, it is not clear whether employees know the extent of the monitoring, what is happening to the information, or even that they are being monitored at all despite some fairly clear information privacy principles requiring employers to ensure their employees are aware.

In Canada, Ontario has taken a different path to address these concerns, passing new laws and amending existing statutes in Bill 88 earlier this year to create prescriptive requirements.

While these legislative changes do not apply in New Zealand, Ontario has taken the lead on issues in the employment context, including those surrounding electronic monitoring, from which we may glean further insight.  The most interesting changes are outlined below, with our comment.

Electronic Monitoring Policy Requirements

Bill 88 amends the Ontario Employment Standards Act 2000 to require employers with 25 or more employees to have a written policy on the electronic monitoring of its employees.

Electronic monitoring policies must include:

  • Whether the employer electronically monitors employees, and if so, a description of the monitoring, the circumstances in which monitoring will occur, and the purposes for which the information may be used;
  • The date the policy was prepared and any changes made to the policy; and
  • Any further information prescribed by the government.

In the New Zealand context, much of the above information is available to an employee under the Privacy Act 2020.  The Privacy Act 2020 may also require employers to disclose to employees that information is being collected, how it is being collected, how it is being stored, and how secure it is.  However, the rights afforded under the Privacy Act 2020 may not capture all information obtained by an employer through its use of electronic monitoring, and the guidelines are not prescriptive.  It is also unclear how widely understood these rights are by employers or employees.

By contrast, Bill 88 goes a few steps further to enhance transparency, create positive disclosure obligations, and ensure employees understand how their movements and actions are being monitored electronically.  It does highlight potential areas for improvement in respect of New Zealand’s own legislation.

If you have any questions about employee rights and employer obligations in the New Zealand context, please get in touch with our Employment Team or your usual contact at Hesketh Henry.

Disclaimer:  The information contained in this article is current at the date of publishing and is of a general nature.  It should be used as a guide only and not as a substitute for obtaining legal advice.  Specific legal advice should be sought where required.

Do you need expert legal advice?
Contact the expert team at Hesketh Henry.
Media contact - Kerry Browne
Please contact Kerry with any media enquiries and with any questions related to marketing or sponsorships on +64 9 375 8747 or via email.

Related Articles / Insights & Opinion

Privacy Commissioner to consult on Privacy Rules for Biometric Information
With the increasing use of facial recognition technology (FRT), retinal scans, and voice recognition by an array of different agencies, privacy concerns about its collection and use are set to be form...
24.11.2023 Posted in Business Advice
Fern forest NZ
Bioenergy in New Zealand: Fuels for the Future?
The energy transition from combustion fuels to low carbon alternatives is viewed as critical in the race to cut global CO2 emissions and reach climate targets.  We look at some of the opportunities p...
14.11.2023 Posted in Business Advice & Climate Change & Forestry
Will Wide BW
A well drafted will is a craft
The New Zealand do-it-yourself “DIY” attitude and way of life is not limited to home improvements, but sometimes also extends to wills.  Recently we had a DIY $5.99 fill in the blanks will acros...
07.11.2023 Posted in Private Wealth
rsz large pillars
Health and Safety: The Consequences of Dishonesty
Siddhartha Gautama said that lies are like huge, gaudy vessels, the rafters of which are rotten and worm-eaten, and that those who embark in them are fated to be shipwrecked.  Two remarkable health a...
03.11.2023 Posted in Employment & Health & Safety
Properly sequencing your Construction Adjudications: Henry Construction Projects Ltd v Alu-Fix (UK) Ltd
According to the UK’s Technology and Construction Court (TCC) (in Henry Construction Projects Ltd v Alu-Fix (UK) Ltd [2023] EWHC 2010) valid payment claims must be paid before the underlying merits ...
30.10.2023 Posted in Construction & Disputes
Key change to rules on distribution of surplus assets under the new Incorporated Societies Act 2022
On 5 October 2023, the new Incorporated Societies Act 2022 (2022 Act) came fully into force, replacing the Incorporated Societies Act 1908 (1908 Act). One of the key requirements under the 2022 Act is...
18.10.2023 Posted in Business Advice
Construction Framework Wide BW
Major milestone passed – NZS3910:2023 expected in time to fill Christmas stockings
As the most widely adopted standard form construction contract in NZ, NZS 3910 was more than ready for updated conditions given the changes in the industry since its last review in 2013.  After almos...
09.10.2023 Posted in Construction
Send us an enquiry

For expert legal advice, please complete the form below or call us on (09) 375 8700.