Biometric data – know your rights and responsibilities

Biometric data has been in the spotlight recently with the announcement by the Victorian government that it will upload drivers licence photos to a national database which will initially be used by agencies such as Victoria Police to identify duplicate IDs and fraud.

Similarly, earlier this year the use of facial recognition technology in schools caught media attention.

But the issue also arises in employment. Earlier this year the Full Bench of the Fair Work Commission was asked to consider whether an employer’s requirement that an employee submit to fingerprint scanning was a lawful direction. In the case of Lee v Superior Wood [2019] FWCFB 2946, the Full Bench held that a direction which required an employee to consent to fingerprint scanning was not a lawful direction as it infringed the employee’s rights under the Privacy Act 1988 (Cth). The employee’s subsequent dismissal for refusing to submit to fingerprint scanning was therefore unfair.

The employee record exemption in the Privacy Act did not apply in this case as the records were not yet in existence. The employer was therefore prohibited from collecting sensitive information (including biometric data) without the employee’s consent.

Do you need advice about the collection, use, handling or storage of biometric date in your workplace or company? Do you have a compliant privacy policy?