– By Nicholas Ogilvie and Priya Parghi –
GPS tracking devices in company vehicles are becoming increasingly valuable. Businesses can track driver routes, relevant customer locations and details of their requirements to enhance customer service. Recently, a bus operator installed GPS devices on smartphones to allow drivers to communicate with each other and the operations centre, and a courier delivery services company fitted its fleet with GPS units to track driver routes and overtime hours.
Such devices can also help modify driver behaviour by alerting them to speeding, harsh braking, idling etc.
But are there any legal traps? Here are five important considerations for employers when implementing GPS tracking devices:
Know the law (or seek advice)
Make sure that you are familiar with the workplace surveillance and privacy laws that apply where you operate, the relevant industrial instrument(s), company policies and any contracts of employment that apply. What do they say about use of tracking devices and the publication/use of tracking information?
Each State and Territory has different obligations with respect to workplace surveillance legislation. Consider which jurisdiction will be relevant. If there is more than one, or if you operate across States and Territories, consider a ‘high water-mark’ approach. This will ensure consistency across all national operations and meet the requirements in each jurisdiction.
Understand the purpose of implementation
It is important to clearly define the parameters of using the GPS devices from the beginning. It will only help make the process easier when you get to implementation.
Identify and articulate clear reasons for the use of GPS devices and why the business wants to implement these units. Set out a detailed plan of what you intend to do (and not do) with the GPS units and how you will locate and track assets.
Further consideration includes the type of device to be implemented – will it be a smartphone, visual display or other unit? Who may access GPS tracking data? How will GPS tracking data be stored and for how long?
Do I need consent?
You will need to obtain consent from the relevant employees. The obligations regarding what is sufficient to demonstrate you have the consent will be different in different jurisdictions.
Consider the best way to do this in the context of your business and what is being implemented.
Express consent will require some kind of active measure such as a written consent form which is to be signed by the employee and returned. Implied consent could be a factsheet or revised policy outlining the proposal to implement GPS devices and including all information required under surveillance and privacy legislation.
Consider what notification period the legislation specifies (if any) and when might be the most suitable time to obtain consent. Prior to completing installation of the GPS devices or prior to requiring the employees to drive the vehicles with GPS tracking activated?
If the GPS device is going to record data relating to an individual’s private use of a company vehicle, it is likely that you will need to provide all of the information that is required under the privacy laws.
Consult, consult, consult
Although in most cases you will need consent, it is just as important to go through a thorough consultation process.
Consult with the relevant employees about the installation and use of the GPS devices, and deal with any objections/questions on a case by case basis (prior to any final decision regarding implementation). Keep general protections and discrimination risks in mind when dealing with any such objections.
Where will the data go?
Again, each State and Territory differs in its regulation of the use of information obtained through tracking devices. Be clear about where the data will go and what you will use it for.
You must only conduct the surveillance in accordance with the notice that was provided to the employee when obtaining consent. For example, if you have provided notice that GPS tracking will be used to co-ordinate routes for customer work, then you cannot use the data for performance management or misconduct investigation.
This article was written by Herbert Smith Freehills employment partner, Nicholas Ogilvie, and solicitor, Priya Parghi. Please get in touch if you would like to discuss the necessary considerations in implementing GPS tracking capabilities in your business.
Nicholas Ogilvie
Partner, Herbert Smith Freehills
E nicholas.ogilvie@hsf.com
T +61 3 9288 1380 M +61 407 156 438
LinkedIn: au.linkedin.com/in/NicholasOgilvie
Twitter: @NicholasOgilvie
Priya Parghi
Solicitor, Herbert Smith Freehills
E Priya.parghi@hsf.com
T +61 3 9288 1126
