Can you legally track your employees in Australia?
With 2.1 billion smartphones being utilised in the world and with more than 36 per cent of Australian workers now being tracked with GPS, it poses the question: as an Australian employer, are you legally able to use tracking devices to monitor your employee’s locations?
A tracking device is described by the NSW Surveillance Devices Act 2007, as “any electronic device capable of being used to determine or monitor the geographical location of a person or an object.”
Unfortunately surveillance laws within Australia are governed at a state level, not federally. This can become problematic for employers when their workers cross state borders. However, it does appear that whilst most states do not directly prohibit the use of tracking devices, you will be prosecuted if you install, use or maintain a tracking device on a person or object within their legal possession, without their consent.
So what does this mean for an employer?
Legal consent must be given by the employee either expressively for example, the signing of an employment contract which specifies you will be monitored by a tracking device or accepting company policies, of which one is for the use of tracking devices within the organisation. Consent can also be implied ie an employee accepting and using a company phone which has tracking software. This consent must also cover the use of any surveillance data collected.
The following is a quick overview of relevant legislative policies, by state: (Current information @ 11/05/2017)
|Surveillance Devices Act 2005 (NSW)||Legislation advices Employers must have consent 14 days prior to the installation of a tracking device. Open communications and employee engagement is also prompted under NSW law. Failure to comply will see employers imposed with fines|
|Workplace Privacy Act 2011 (ACT)||Essentially it also describes the need to have consent from the person in possession of the object, or the person themselves 14 days prior to use.|
|Surveillance Devices Act 1999 (Vic)||An Employer must have expressed or implied permission to install and monitor a vehicle, person or object in possession of a person. Failure to do so will result in substantial fines and/or imprisonment.|
|Surveillance Devices Act 1998 (WA)||While the use of a tracking device is not illegal, there are severe penalties imposed if you install, monitor or knowingly authorise or direct a person to install, monitor or use a tracking device without the consent being received prior to use.|
|Surveillance Devices Act 1972 (SA)||A tracking device is defined, but the use, control or consent requirements are not described or legislated.|
|Surveillance Devices Act 2007 (NT)||Like the NSW legislation, NT legislates the requirement to have consent prior to installation of a tracking device|
|QLD and TAS||NA||Both states (Queensland and Tasmania) do not currently have any legislation in place for the use of tracking devices.|
While monitoring employee locations is not illegal within Australia, employers must refer to their local Acts to ensure their responsibilities are met. Regardless of which state you operate within, it appears that before you implement any employee monitoring, consent must be given and documented prior to implementation. It is also advantageous to have company policies and procedures in place that will engage employee/employer discussion, including any concerns held. Employers should also offer full disclosure of who, what, when and how the information is recorded, stored and utilised.
If you would like further information on how cost-effective employee monitoring can be for your business, please contact the Team at 152HQ, today.
The information contained within this blog is of a general nature only. It does not take your specific needs or circumstances into consideration. You should look at your own situation and legislative requirements before making any decisions.