Ever worked in a workplace where you were required to provide a biometric scan of your fingerprint to prove you were actually at work? Ever been told by an employer you would be fired if you didn’t scan your finger?
These issues were considered in the recent Fair Work Commission decision of Jeremy Lee v Superior Wood Pty Ltd  FWCFB 2946. The full bench held a worker’s refusal to participate in fingerprint scanning did not justify his dismissal.
So, what does this mean for an employee or an employer? Do employees have to give over this data if required? Are employers entitled to this information?
What is biometric data?
Over the last decade, the use of biometric data has become increasingly valuable to employers. Biometric technology includes finger scanning, facial recognition, iris and retinal scanning, voice recognition and dynamic signature verification. If you have one of the latest iPhones, you will soon learn that even Siri collects this data from you!
Biometic data is essentially an identification measure. For example: you start a new job with an employer who requires you to scan your finger every morning when you get to work. An original scan of your fingerprint is taken and put on your file. Then, every day, you scan your finger, which records biometric samples to your file. These samples are then compared to the original sample to make sure that you are who you say you are.
It is the same case when you go through customs at an international airport. Previously you would have had a customs officer assess your face against your passport photo. Let’s be real though – who really looks like their photo in the passport from 10 years ago? International airports now have facial recognition devices (SmartGate) to match your face to your passport.
Do employees have to give this data?
In the Superior Wood case, the terminated employee was one of 400 employees who refused to provide his fingerprint as he claimed it was a breach of the Federal Privacy Act. The full bench found it was not lawful to direct the factory hand to “submit to the collection of his fingerprint data, in circumstances where he did not consent to that collection”.
So, it really is a question of CONSENT! The full bench heard the worker was informed if he did not consent he was likely to face dismissal or discipline. Is consent “genuine consent” if it is induced by a threat? In answer to that question, the full bench said NO.
Can employers collect this data?
Let this case be a warning to employers who collect biometric data from their employees. If you do not meet your legal obligations there are potential consequences to be faced.
If you are an employer or employee that would like to have a chat with one of our solicitors about your obligations as an employer or your right as an employee – complete the form below or call (07) 3211 2233.