A closer look at biometric data in the workplace
A recent decision of the Fair Work Commission (FWC) has provided some insight into the collection and use of sensitive information in the workplace.
In the case of Jeremy Lee v Superior Wood Pty Ltd  FWCFB 2946, the FWC found that it was unfair for an employer to dismiss an employee for refusing to use a system which collected their biometric fingerprint.
Jeremy Lee Wood was dismissed from his job at a timber manufacturing company in Queensland after refusing to use a sign-in/sign-off fingerprint scanner. Superior Wood, Lee’s employer, introduced the fingerprint scanner to improve workplace safety but failed to inform Lee of where and to whom his sensitive information would be disclosed. Initially, the FWC found that Lee’s resistance to the scanners amounted to a failure to follow a workplace policy and therefore created a valid ground for termination.
This was overturned on appeal, however, when the full bench of the FWC considered the lawfulness of the direction to provide consent rather than the collection of the information itself.
“A necessary counterpart to a right to consent to a thing is a right to refuse it”.
Perhaps the most interesting finding of the case was the FWC’s interpretation of “employee records”, an exemption the employer sought to rely on in the appeal. The Commission held that information, such as fingerprint data, will only become an “employee record” after it is in the possession or control of the employer. Records yet to be generated do not form part of the employee record exemption. This interpretation leaves open a suggestion that the employer would have discharged their privacy obligations under the Act. if they had already been in possession of Mr Lee’s biometric data.
What does this mean for employment relations?
If you require more information on collecting personal information from employees, or the policies you are required to have in place, please contact our team for more information.