GPS tracking devices for vehicles are everywhere at the moment. The companies pedalling these nifty devices promise all kinds of returns on your investment, particularly if you operate a company that provides vehicles to your employees. What the Google ads and billboards don’t mention is the serious exposure to privacy regulation that kicks in the moment you are recording someone else’s location.
Can I Track My Business’s Work Vehicles?
This actually depends on what State or Territory you operate in and the circumstances surrounding where and when you track those vehicles. If you are tracking employees using company vehicles then the Commonwealth Privacy Act 1988 largely exempts you from complying with the Australian Privacy Principles regarding any records relating to their employment under Section 7B(3). However, if you continue to track employees after their rostered hours there is a very sound argument that this would not fall under Section 7B(3).
In New South Wales the Workplace Surveillance Act 2005 requires you to notify employees that a vehicle is fitted with a tracking device. This doesn’t have to involve a lawyer so much as a printer and some stickers that you put on the inside of your company cars stating that the vehicle is fitted with a GPS tracking device. However, should you continue to track the vehicles when your employees are no longer “at work” then you can start to run into civil penalties under Section 16 of the Workplace Surveillance Act 2005.
In Victoria any installation of a device for tracking the location of an object without the consent of the person in lawful possession of the object is a civil penalty regardless of whether it is at work or not. Compared with NSW’s 50 penalty units in Section 16 of the Workplace Surveillance Act 2005 (NSW), Victoria remains the place to be fined with Section 8 of the Surveillance Devices Act 1999 (Vic) imposing 1,200 penalty units or $221,904.00 per device.
Those civil penalty provisions pale to insignificance if you continue to track out of hours and an employee makes a complaint challenging the 7B(3) Privacy Act 1988 exemption. Were they to succeed and it is found that you had continued to track their location via the company vehicle after they complained to you first, you might find yourself looking at a Section 13G Privacy Act 1988 problem.
To keep Section 13G simple, every instance of you tracking an employee outside of work could mean a $444,000.00 civil penalty. That is $444,000.00 x each time you tracked out of hours x each employee who is tracked… for a company with even a small fleet of company vehicles you are running a substantial risk.
None of this even addresses the poor public relations that can result from invading the privacy of your staff. Trying to hire quality staff is hard enough in the current market without having a trust issue.
How Can I Avoid These Privacy Penalties?
The solution is very simple. Only use GPS tracking services that you can disable after hours. Alternatively, have well-drafted company vehicle policies and employment agreements that can mean your employees are “at work” when using the vehicle, without extending liability to you if they do so out of work hours. You may also wish to use Australian Privacy Principle compliant terms in your agreements and policies such that your employees consent to their personal information being collected in this manner out of work hours.
Given the substantial risks and vicarious liability associated with accidents and work vehicles, as well as the possible civil penalties imposed by privacy legislation across different jurisdictions, you should really have a competent lawyer drafting these documents. If you’d like to talk to someone about your privacy obligations or discuss amending your agreements and policies, please contact Jenkins Legal & Advisory on 02 4929 2000 or email email@example.com.
This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.