Q. Our company has the opportunity to install a Proximity Tool aimed at quickly finding the location of our field based people so that we can better allocate jobs and increase response times to customers (our customers are usually hospitals). We provide our employees with mobile phones, laptops and other equipment to enable remote connectivity. My question is about the legalities involved if a company provided mobile phone is used to track employees' location. We intend to give notice of the introduction of this tool but our question is whether we need to obtain employee consent if using company provided equipment? The affected employees are employed in New South Wales.

A. Generally, an employer is entitled to put in place systems and procedures that assist in running the business efficiently. The system or procedure should relate to the work at hand and not be used for matters extending beyond work, that is, potentially breach privacy legislation. For example, it should not be used to monitor employee activities outside work hours or when absent on leave.

 

Workplace surveillance legislation – New South Wales

The use of tracking devices during work time may be subject to the relevant state or territory surveillance legislation. In this case, the Workplace Surveillance Act 2005 [NSW] would apply and relates to the employer’s use of technology including video cameras, computers and tracking devices, to monitor employees and generally prohibits the surveillance of employees at work, by their employer, except where employees have been given notice or where the employer has a covert surveillance authority. “Tracking surveillance” is 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).

There must be a notice clearly visible on the vehicle (or other thing) that is being tracked, indicating that the vehicle (or thing) is the subject of tracking surveillance.

 

Implementation of policy

Under the Act (s.10), written (or emailed) notice must be given at least 14 days prior to any surveillance commencing. This notice must indicate:

  • the kind of surveillance to be carried out (camera, computer or tracking),
  • how the surveillance will be carried out,
  • when the surveillance will start,
  • whether the surveillance will be continued or intermittent, and
  • whether surveillance will be for a specified limited period or otherwise.


For new employees notification must be given before they start work.

Similar legislation also applies in the Australian Capital Territory – the Workplace Privacy Act 2011 [ACT].


Other jurisdictions

Legislation governing electronic surveillance or monitoring of employees is inconsistent between jurisdictions. In most states and territories, surveillance legislation is device-specific and applies more broadly than in the workplace, e.g. Listening Devices Act 1972 [SA], Surveillance Devices Act 1998 [WA] and Surveillance Devices Act 2007 [NT]. While such legislation is not workplace-specific, it would apply to many workplaces.

Workplace privacy legislation relating to tracking devices exists in Victoria, which is subject to the Surveillance Devices Act 1999 [Vic] (s.8(1)). Under this subsection, a person must not knowingly install, use or maintain a tracking device to determine the geographical location of a person or an object, without the express or implied consent of that person