Many employers give their employees a work phone or car to use for the duration of their employment. Your employee may be thrilled by this, but they will not be so thrilled if they find out that you have tracked their movements without telling them. This is why you need to know your legal obligations when tracking employees.

Your employees may already have some apps on their phones monitoring their location. More and more apps are emerging that allow employers to monitor their employees’ attendance and timesheets. The ability to record these activities easily is convenient for employers, but it is important to be aware of the legal risks. In this article, we explore a contentious area of workplace surveillance: tracking employees using their mobile phones and cars.

The Relevant Law

The Australian Privacy Principles (APPs) are the privacy obligations that monitor the collection and handling of employees’ private information. They apply to:

  • private companies with net profits of more than $3 million;
  • private health service providers;
  • some small businesses; and
  • government agencies.

While some small businesses are not strictly required to comply, the APPs are a well-regarded benchmark for dealing with private information. The APPs apply when you store information about an employee’s activities, including their location.

The APPs cover:

  • the use, management and collection of personal information;
  • the storing of personal information; and
  • the right for individuals to access personal information kept about them.

This means that having well-drafted policies in place is essential, so your workers know what information you are storing about them and what you are doing with it.

Specific state and territory laws may also apply. New South Wales (NSW) and the Australian Capital Territory (ACT) have specific laws about when you can and cannot conduct surveillance on your employees. NSW is governed by the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act). The ACT is governed by the Privacy Act 2014 (ACT).

Privacy Policy Inclusions

There are a few issues to keep in mind if you are tracking employees. Employees might be able to bring a claim against you if you do not notify them that you are recording their information, or tracking their movements, without their knowledge.

You should address these things in a policy referred to in all employees’ employment agreements. This policy should explain:

  • that the information kept relates directly to the employee’s employment. Below, we touch on when an employee is ‘at work’;
  • why you are keeping certain information, and what you are doing with the information;
  • that employees will have access to the information kept to ensure transparency; and
  • that you will rectify the information if it is found to be incorrect or incomplete.

Plenty of company cars will also have devices within them that allow you to keep tabs on the whereabouts of the vehicle (and presumably, the person driving it). Despite owning the vehicle, it is still best practice to alert your workers to the fact that you are recording the location of the car they are driving.

The Difference Between a Personal Device and a Work Device

If an employee is using company software on a personal device for work purposes, you will need a policy addressing whether you are accessing this information, and what you are doing with it. It can be difficult to distinguish between personal information and work-related information. You should deal with this risk carefully.

Tracking Employees ‘At Work’

Thanks to flexible working conditions and technology, the distinction between ‘work’ and ‘home’ is becoming more and more blurred. However, the distinction is important when you are tracking employees, because it determines what information you can and cannot monitor.

The PPIP Act states that employees whose data is being tracked may be ‘at work’, regardless of hours, if they are:

  • at their typical workplace;
  • at another place connected to their work; or
  • on their way to and from work.

Key Takeaways

Tracking employees can be good business practice. However, recording information without employees’ knowledge may infringe their workplace rights. You should:

  • notify employees if you are using a tracking app to record movements connected to their employment; and
  • have clear policies on what information you are storing and why.

If you would like to understand your obligations further when it comes to tracking employees, contact LegalVision’s employment lawyers on 1300 544 755, or fill out the form on this page.

Jessica Anderson
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