– By Michael Graham –
When you equip a work vehicle with telematics there are very clear laws around the way that it should be done. Each state can be slightly different with New South Wales being the most rigorous.
The Act is very clear.
WORKPLACE SURVEILLANCE ACT 2005 – SECT 10
10 Notice of surveillance required
(1) Surveillance of an employee must not commence without prior notice in writing to the employee.
(2) The notice must be given at least 14 days before the surveillance commences. An employee may agree to a lesser period of notice.
(3) If surveillance of employees at work for an employer has already commenced when an employee is first employed, or is due to commence less than 14 days after an employee is first employed, the notice to that employee must be given before the employee starts work.
(4) The notice must indicate:
(a) the kind of surveillance to be carried out (camera, computer or tracking), and
(b) how the surveillance will be carried out, and
(c) when the surveillance will start, and
(d) whether the surveillance will be continuous or intermittent, and
(e) whether the surveillance will be for a specified limited period or ongoing.
(5) Notice by email constitutes notice in writing for the purposes of this section.
(6) Notice to an employee is not required under this section in the case of camera surveillance at a workplace of the employer that is not a usual workplace of the employee.
Additionally, a notice must be clearly visible on the vehicle indicating that the vehicle is the subject of tracking surveillance.
The Surveillance Devices Act also sets out very clearly the conditions for use of GPOS based systems for location.
All good and fair in the workplace but with the rise of ride-share rentals, peer-to-peer rentals, accident replacement vehicles services and new mobility models telematics is in an interesting spot. Peer-to-peer renters want to know where their car is, rideshare rental providers want to know where their car is but what about the rights of the driver?
Last week I got into a car that the young driver was renting. He had no idea that some rental companies were using a GPS device in his car that tracked him 24/7/365. I’m sure it was in the contract somewhere but he was oblivious to the fact that he was under continuous surveillance as defined by the workplace act (which does not apply because he is not an employee.)
Of course when you have the Uber app open your location is being tracked. But where does the driver stand when not driving for Uber?
After I talked through the Act with him he was amazed that there was no obligation to explicitly notify him that his rental car was equipped with technology that shows his location ALL the time.
Imagine you hire a rental car. Somewhere in the contract it states that the car is equipped with a location tracker that is concealed from your view under the driver’s side dashboard and is transmitting your location in one second increments. But no notice in the car as per the Surveillance Act. How do you think the normal customer would react to that?
I reckon they would be straight off to a competitor.
Or if you were not at fault in a crash but the replacement car was equipped in the same way. How would you feel about that? A bit invasive perhaps?
There is nothing illegal in what I have described but the ethical line is starting to blur with new business models. We know that phones track us everywhere and that privacy as perceived by the previous generation is long gone. But even apps ask us if they can use location services in the background. This is explicit permission.
People that drive cars like the rentals and replacement vehicles may not expect that they are being tracked 24/7. Should they be afforded the same notices as an employee or a google maps user? After all they have been ‘caused to be engaged’ by the provider? It seems the explicit permission angle is absent.
