The surveillance of employees within the Australian workplace is increasingly common, but the legislative framework governing this practice can lag behind advancements in technology.
Collecting precise information about the whereabouts of workers can now be achieved through the use of smartphones and other Global Positioning System (GPS) devices. While this can be appealing for business efficiency and security, it also carries legal risk. Each State and Territory in Australia has varying regulatory schemes regarding how geotracking devices may be used in the workplace. This can leave employers in a situation where the standard operating procedures regarding tracking devices may be lawful in one State or Territory, but not another.
While there are several other surveillance issues confronting workers, such as CCTV, and productivity measurement tools, this article focusses specifically on the web of laws governing geotracking devices in the workplace, and offers guidance on how employers can best navigate these regulations to ensure compliance.
The use of geotracking devices in the workplace
Geotracking devices in the workplace can be a legitimate and often necessary business practice. For instance, GPS systems in vehicles are generally accepted as crucial for fleet management, security, safety, and ensuring that a vehicle’s location can be promptly identified. This is especially common in roles where employees are mobile, such as couriers, delivery drivers and tradespeople.
Increasingly, tracking devices are also embedded in software, such as apps on workplace-provided phones or even on employees’ personal phones, allowing location data to be harvested and monitored in real time.
However, the practice of tracking an employee’s location through apps and devices can present interesting legal problems. Permissibility is contingent on varying conditions across States and Territories, plus national privacy legislation. This makes it important for employers using this technology to ensure that they have a process in place that allows for tracking devices to be used in accordance with the law.
Legal framework governing geotracking devices
Contrary to what their names might suggest, the national Fair Work Act 2009 (Cth) and Surveillance Devices Act 2004 (Cth) do not specifically address workplace surveillance via geotracking devices. Instead geotracking devices are regulated separately across each State and Territory.
Broadly these laws fall into three categories.
1. Specific workplace surveillance laws
New South Wales and the Australian Capital Territory are the only jurisdictions with specific legislation for workplace surveillance (Workplace Acts), being the Workplace Surveillance Act 2005 (NSW) (NSW Act) and Workplace Privacy Act 2011 (ACT) (ACT Act) respectively.
Geotracking is classified as surveillance for the purpose this legislation. This is demonstrated in the NSW Act, which refers to “surveillance by means of an electronic device the primary purpose of which is to monitor or record geographical location or movement (such as a Global Positioning System tracking device)”.
Under the Workplace Acts, the validity of employee geotracking is reliant on notice being provided to the relevant employee.
Period of notice
In the Workplace Acts, an employer is required to provide 14 days’ written notice of any surveillance, including geotracking. If the surveillance has started before the employee has started working in the business, then notice of the surveillance must be given prior to the employee’s commencement of work. This notice requirement can be excused if otherwise agreed with the employee.
In the ACT, an additional obligation requires the employer to consult in good faith with the employee about the conduct of the surveillance during the notice period. This consultation must provide the employee with a “genuine opportunity to influence the conduct of the surveillance“.
Contents of notice
In NSW and ACT, the notice provided to the employee must indicate:
- the kind or type of surveillance to be conducted;
- how it will be carried out by the employer;
- when it will commence;
- whether it will be continuous or intermittent; and
- whether it will be for a specified period or ongoing.
In the ACT, the notice must also include who will “regularly and ordinarily be the subject of the surveillance” and the purpose for which the employer may use and disclose the surveillance records, as well as making reference to the employees right to be consulted.
Additionally, in NSW and ACT, if a tracking device is placed on a vehicle or other object, then a clearly visible notice to the employee must be displayed indicating that the vehicle or “other thing” is under tracking surveillance.
2. General surveillance laws
Victoria, Western Australia, South Australia and the Northern Territory each have their own Surveillance Devices Act which include provisions for tracking devices and apply generally, irrespective of whether an employment relationship is involved. These acts generally define tracking devices as those used to determine the location of a person or object, and prohibit the installation, use, or maintenance of such devices without the person’s express or implied consent.
A quirk in the Surveillance Devices Act 1999 (Vic) (Victorian Act) provides a potential way to bypass this consent requirement when a device is capable of tracking location, but its primary purpose is to monitor other metrics. This arises because the Victorian Act defines tracking device to mean “an electronic device the primary purpose of which is to determine the geographical location of a person or an object“. The reference to a “primary purpose” is not found in other jurisdictions.
This distinction proved relevant in the case of Gervasoni v Rand Transport (1986) Pty Ltd,1 where the Fair Work Commission found that an electronic device installed without the employee’s consent did not constitute an “electronic tracking device” under the Victorian Surveillance Devices Act. The Commission concluded that although the device could report the location data of the vehicle, the primary purpose was to monitor the cold-storage of goods in transit. For this reason, it was found that the consent of the employee was not required for installation.
Care should be taken if relying upon this feature of the Victorian Act, noting that there could be scope for debate as to the purpose of any tracking device, and that the same rules would not apply if the device travelled into other jurisdictions.
3. Limited surveillance laws
Surveillance device laws in Queensland and Tasmania regulate the use of listening devices, but not other types of surveillance devices (such as geotracking devices).
Although general privacy laws will continue to apply, there exists a regulatory gap around the installation and use of geotracking devices in these States and what requirements apply to employers. This means that employers may have wider scope to implement tracking devices in the workplace, but not entirely without legal risk.
Without specific tracking device provisions in these jurisdictions, there is an absence of direct regulatory guidance regarding appropriate geotracking of employees. Consequently, employers could be exposed to privacy breaches, discrimination claims, or unfair dismissal actions if they do not handle tracking devices responsibly.
Privacy Act compliance
For Commonwealth agencies along with any businesses classified as APP entities (those with an annual turnover exceeding $3 million), the Privacy Act 1988 (Cth) (Privacy Act) and its Australian Privacy Principles (APPs) will also apply to the collection, use and disclosure of geolocation information about individuals. Entities from a State or Territory public sector may be subject to local privacy laws in a similar way.
The Privacy Act’s employee record exemption gives private sector employers considerable flexibility to use personal information held about employees for purposes related to the employment relationship. However:
- the employee record exception does not apply to Commonwealth agencies, who are required to follow the APPs in all dealings with employee records; and
- the employee record exception only applies to information held in employee records, and therefore has been found not to apply to the collection of personal information about employees, which needs to remain in compliance with the APPs. We have discussed this limitation in further detail in a previous article.
In either case, it is crucial that the collection of geolocation data about employees is done in accordance with the APPs. Relevant considerations will include:
- whether the collection of tracking data is “reasonably necessary”, in order to meet the requirements of APP 3.1 and 3.2;
- whether the means by which the tracking takes place are “lawful and fair”, in order to meet the requirements of APP 3.5; and
- whether the employer has been appropriately transparent about its collection of the information, in order to meet the requirements of APP 5.
The Commonwealth Government has “agreed in-principle” with a recommendation made by the Attorney-General’s Department to change the Privacy Act such that “collection, use, disclosure and storage of precise geolocation tracking data… requires consent”, with the Department suggesting that this change “would reflect community concerns and expectations” given feedback it received that geotracking could be “highly intrusive” and give rise to “significant privacy harms if misused”. This change did not form part of the first tranche of reforms legislated, but are still expected to feature in future reforms.
Best practices for employers
Given the variation across the States and Territories concerning geotracking laws, employers seeking to adopt an overarching and uniform approach to ensure compliance with tracking device use will need to adopt a conservative position which complies with the strictest of varying requirements around the country. For such an approach, employers should consider:
- whether the use of a geotracking device is necessary to implement as part of workplace surveillance; and
- whether appropriate notice has been provided to, and consent obtained from, the employee.
Transparency is a key thread across the Privacy Act and the various State and Territory surveillance regimes. Employees should be given reasonable notice to employees regarding the use, installation, and maintenance of tracking devices.
To ensure compliance with requirements in different States and Territories, express or implied consent should also be obtained from employees before using geotracking devices to monitor their location.
Ideal practices are likely to include:
- having a workplace surveillance clause in your employment contracts;
- maintaining a policy outlining geotracking that will take place, and how that information will (and will not) be used;
- visible warning stickers being placed on vehicles and other equipment that include tracking devices; and
- on-screen notifications on electronic devices used to undertake geotracking, such as smartphones, tablets and laptops.
Even in jurisdictions with less robust surveillance device laws, these practices will help to ensure transparency in the employment relationship and minimise the chance for controversy to arise.
Conclusion
The legal landscape surrounding geotracking in Australian workplaces varies considerably across States and Territories. Employers must tread carefully to ensure compliance and minimise legal risks. By adopting an approach that prioritises transparency, operates with employee consent and adheres to the Privacy Act, businesses can harness the benefits of geotracking devices while preserving employee privacy and safety.
The continuous development of technology and surveillance practices underscores the need for a proactive and informed approach by employers. Our Employment and Privacy teams can provide the necessary legal expertise and advice tailored to geotracking in the workplace and how best to ensure compliance.
This article was written by Daniel Kiley, Partner, Jessica Nicholls, Partner, Max Soulsby, Solicitor and Christopher Power, Law Graduate.
1[2009] FWA 1269.
