The Fair Work Commission (‘FWC’) issued, on 1 May 2019, its appeal decision on the collection of biometric data in the workplace (‘the Appeal Decision’), finding that Superior Wood Pty Ltd. had unfairly dismissed an employee for refusing to comply with its attendance policy, which required employees to sign into its worksite with fingerprint scanners. In particular, the employee had refused to provide their fingerprint due to concerns over the control of their biometric data, and because Superior Wood had not guaranteed that a third party would not be provided access to or use of their data once stored. The FWC outlined that since fingerprints were considered sensitive information under the Privacy Act 1988 (‘the Act’), employers cannot require employees to provide their fingerprints.
Furthermore, the FWC highlighted in its Appeal Decision, that Superior Wood had breached its obligations under the Act by having inadequate protections in place to protect sensitive personal data, and that the individual was entitled to seek to protect their biometric data, finding that fingerprint scanning was ‘administratively convenient’ for the employer rather than ‘reasonably necessary.’
There is no shifting of power [to employees] as a result of this decision
Crichton added, “The FWC was clear that policies in place at the time of entering an employment agreement formed part of the contract and therefore compliance with the terms was a condition of employment. However, the policy relating to the use of fingerprint technology did not exist at the time of entering into the contract and there was no evidence that [the employee had] agreed to vary their contract. Had the policy been in existence at the time of entering into the contract, its terms would have likely formed part of the employment agreement and [the employee] would have been required to comply with it. Therefore, if the circumstances are such that consent to provide sensitive personal information is included in the terms of the employment agreement, a refusal to comply would give rise to a valid reason for dismissal. […] There is no shifting of power [to employees] as a result of this decision.”
The Full Bench found, in the Appeal Decision, that the scope of the employee record exemption (‘the Exemption’) from Section 7B(3) of the Act does not extend to Superior Wood. The Exemption, in line with APPs 3, allows for the collection of biometric data if the individual consents and it is reasonably necessary to collect the information for one or more of an entity’s functions or activities.
Crichton concluded, “This [Appeal] Decision provides clear guidance on the application of the Exemption […] [and] the FWC highlighted that the Exemption did not extend to the collection of personal information, including personal records of an employee, as such a record was not yet obtained. […] [Further,] relevant organisations and entities need to be aware that the Exemption applies only to records relating to a particular individual that are actually held by […] or under the control of the organisation; it does not extend to records not yet in existence and therefore yet to be held.”
CHRISTOPHER CAMPBELL Privacy Analyst