Recently, TSheets, a provider of GPS mobile tracking apps, shared their research into the use of GPS tracking by employers with us. Their survey findings included that:
- 43% of workers were given less than 14 days' notice before GPS tracking was introduced;
- 39% of workers were given notice verbally; and
- One in five vehicles with GPS units did not display a sign informing the driver that GPS tracking was occurring.
This research is a timely reminder for NSW employers to ensure they comply with the Workplace Surveillance Act 2005, including with respect to GPS tracking.
In NSW, the requirements are:
- surveillance via GPS tracking must not commence without prior written notice to each affected employee;
- the notice must be given at least 14 days before the surveillance commences (unless an employee agrees to a lesser period of notice), or before an employee commences employment. The notice often accompanies a contract, is included in a contract or can be provided separately, including via email;
- the notice must indicate:
- how the surveillance will be carried out (eg via the installation of a GPS tracking device); and
- when the surveillance will start; and
- whether the surveillance will be continuous or intermittent; and
- whether the surveillance will be for a specified limited period or ongoing; and
- there must be a clearly visible notice on the vehicle, indicating that the vehicle is the subject of GPS tracking.
While other States do not have specific workplace surveillance (with the exception of some limited provisions in Victoria), they do have other applicable laws. Western Australia, Northern Territory and South Australia have legislation regulating the use of surveillance devices but that legislation is not limited to the workplace. Workplace surveillance in Victoria is subject to the Surveillance Devices (Workplace Privacy) Act 2006, which is restricted to prohibitions on surveillance in workplace toilets, washrooms, change rooms, or lactation rooms. In the ACT, legislation similar to that described above for NSW applies.
There are often good reasons for the use of GPS tracking. These include safety reasons, such as monitoring employees working alone, monitoring compliance with traffic and driver fatigue laws, productivity and adherence to agreed safe routes. However, employers should review the legislation applicable in the States they conduct GPS tracking and take the necessary steps to comply. In the absence of specific workplace surveillance legislation in a particular State, employers should consider general surveillance legislation, privacy laws, any applicable enterprise agreement terms and adopt sound HR practices to consult with employees as appropriate.