The Central Directorate of Supervision, Legal Affairs and Litigation of the National Labour Inspectorate (“INL“), with note no. 9728 dated November 12, 2019, authorised the installation of an application on smartphones assigned to so-called Drivers, allowing for their geolocation during the delivery of goods. This is provided that the companies concerned are not RSAs or RSUs or, if incorporated, the attempt to reach agreement has been unsuccessful.
The facts
The INL’s favourable opinion came following the request for authorisation made by certain companies, carrying out transport and delivery services operators for a company, to be able to install, on the smartphone assigned to delivery workers, a special order management application developed by the client company itself but exclusively owned and available to them.
The opinion of the INL
According to the INL, the installation of this application on Drivers’ smartphones does not breach Article 4 of the Workers’ Statute.
Firstly, according to the INL, there are the specific “organisational and production needs” required by the articles of association, so that the application:
- allows Drivers to view the list of deliveries to be made during the working day to customers of the client company;
- allows the employer of the Drivers and the client company to know, in real time, the correctness and timeliness of deliveries;
- monitors, in real time, the remaining deliveries/receipts during the day;
- acquires real and clear evidence in the event of a dispute with the client.
Again, according to the INL, the application is also functional to the need for “occupational safety“, given that it:
- facilitates the finding of the courier in case of emergency and that
- drivers can inform their employer of any faults in the vehicle and/or ask for help in the event of accident or illness.
In addition, the INL pointed out that the device does not allow for the continuous geolocation of the worker. In fact, it is activated only at the time of delivery of the goods and, again, in the event of a request for help from the same worker and is then deactivated again immediately afterwards.
In giving its go-ahead, the INL has dictated a number of conditions, including the following:
- the company must provide, pursuant to Article 4, paragraph 3, of the Workers’ Statute, an appropriate written information to the Drivers regarding the operating procedures, the performance of checks and the purposes justifying the relative authorisation;
- the installation and use of the application, as well as the processing, storage and protection of data and information gathered must be carried out in compliance with the provisions on the protection of personal data;
- access to the data gathered by the application, allowed only for the purposes represented above, by the persons in charge, must be traced by means of special functionalities that for knowledge of which data is accessed and the related reason; “access logs” must be kept for a reasonable period;
data must be retained for a period not exceeding the time strictly necessary for the purposes for which it was collected.