By Athena Koelmeyer and Nicola Josey -
Snapshot
- The Full Bench of the Fair Work Commission has found that directing an employee to provide their consent to the collection of their biometric information is non-compliant with the APPs. Employees must give genuine consent.
- Employers must carefully consider whether it is reasonably necessary to have biometric scanning technology in the workplace, or whether it is merely administratively convenient.
- Employers subject to the Privacy Act must comply with the APPs in the collection of sensitive personal information from employees, including biometric information. The employee records exemption in the Privacy Act does not apply to such information until it is actually in control of the employer.
Once reserved for top secret facilities and access to highly confidential material, biometric recognition systems are now increasingly prevalent in Australian workplaces. The technology is now affordable for employers; it integrates well with payroll software and it reduces the risk of bundy clock or timesheet fraud. It is, for these obvious reasons alone, an attractive solution to a number of problems for employers.
However, as the Fair Work Commission (‘FWC‘) recently explored in Jeremy Lee v Superior Wood Pty Ltd [2019] FWCFB 2946, the convenience of technology must be weighed against the impact on an individual employee’s privacy.
Background
Jeremy Lee was employed by Superior Wood Pty Ltd (‘Superior Wood’) as a general factory hand. In October 2017, Superior Wood announced it was introducing biometric (fingerprint) scanners to the workplace for time and attendance recording purposes. All employees were directed to use the biometric scanners to record their attendance on site. Mr Lee objected to the introduction of the biometric scanners and refused to register his fingerprint data.
On 2 November 2017, Mr Lee attended a meeting with his managers, during which the reasons for introducing biometric scanners were explained. Mr Lee expressed concern about the security of his biometric data and Superior Wood’s inability to guarantee that third parties could not access it and use it once it was stored electronically. Mr Lee continued to use the physical sign-in book to record his attendance on site.
From 7 November 2017, Mr Lee and Superior Wood participated in meetings and exchanged correspondence about the biometric scanners and Mr Lee’s ongoing refusal to use them. On 2 January 2018, Superior Wood introduced a Site Attendance Policy (‘the Policy’) which required all employees to use the biometric scanners to record their attendance. Mr Lee continued to refuse to use the scanners and was issued with a verbal warning and two written warnings for his failures to comply with the Policy.
On 6 February 2018, Mr Lee was asked to show cause as to why Superior Wood should not terminate his employment. On 12 February 2018, Mr Lee attended a final meeting during which his employment was terminated as a result of his refusal to comply with the Policy. Mr Lee made an unfair dismissal application to the FWC.
