Biometric data, the Privacy Act and the employee records exemption

by Kaman Tsoi Special Counsel, and Deanna Carlon Solicitor, and Ansel Rens Graduate, Herbert Smith Freehills
  • An employee was dismissed following his refusal to provide his fingerprint arguing that he owned the biometric data.
  • The Full Bench of the Fair Work Commission quashed the previous decision in the matter and found that the employee records exemption in the Privacy Act did not apply to the collection of fingerprints or other sensitive information.
  • Employers may wish to reconsider the need for technology that relies on biometric data and implement technologies that improve efficiencies without employees’ sensitive information.

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In Jeremy Lee v Superior Wood Pty Ltd,1 the Full Bench of the Fair Work Commission (FWC) considered the lawfulness of an employer directing an employee to provide their biometric data.

In this case, Mr Lee objected to his employer’s direction to use a fingerprint scanner to sign in and out of his work site, under Superior Wood’s Site Attendance Policy (Policy). Mr Lee argued that he owned the biometric data contained within his fingerprint and that as ‘sensitive information’ under the Privacy Act 1988 (Privacy Act), his employer was not entitled to require he provide this information.

Following the implementation of the Policy, Mr Lee was provided with verbal and written warnings, directing him to adhere to the Policy and provide his fingerprint. After Mr Lee’s continued refusal, his employment was terminated for failing to follow a lawful and reasonable direction to comply with the Policy.

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