We would like to install a tracking app into company mobile phones, especially those carried by delivery drivers and sales reps who spend most of their working time on the road. How can we do this legally?
You can use GPS devices or phone applications to track your employees’ location or the location of the phone.
However, if employees have use of tracked phones out of business hours and your tracking devices collect information 24 hours a day, there is a risk that you will be storing information that is ‘personal information’ or is capable of revealing personal information. Even if the tracking data does not personally identify the employee, it is possible that it could constitute personal information if it could, at some future time, be linked back to the individual.
If this information were to be accessed by someone other than the business for a non-business purpose, there would be a material risk of a breach of the Privacy Act. In our view the best way around this is to avoid tracking or storing tracking data after business hours. It may be that you need to allow employees the option of turning off tracking after work hours.
You should also note that there is statebased legislation in Victoria, NSW, WA and the NT which addresses the use of surveillance devices (which includes tracking devices) and generally requires that you inform employees of the installation and use of such devices. In NSW, this includes clearly notifying the operator of the device in operation. Further, in Victoria, WA and the NT you are also required to obtain employee consent to use tracking devices.