USE OF FACIAL RECOGNITION TECHNOLOGY IN THE WORKPLACE

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Tracking employees via video or other technology is an issue of the moment. This is an area that is constantly evolving, and there have been some recent Federal decisions that may need to be considered.

Scanning

In the decision of Lee v Superior Wood [2019] FWCFB 2946, the Full Bench of the Fair Work Commission found that a direction requiring an employee to consent to biometric attendance scanning (in the form of fingerprint scanning) was not a lawful direction as it infringed the employee's rights under the Privacy Act 1988 (Cth) (Privacy Act). The employee's termination for refusal to follow that direction was therefore unfair. Significantly, the Full Bench found that the employee records exemption only applied to records actually held by the employer, meaning the Privacy Act applied to practices engaged in by the employer up to the point of collecting personal information.

CCTV Footage

In addition, there may also be instances where an employer could not rely on CCTV footage in unfair dismissal cases – e.g see comments in Krav Maga Defence Insti­tute Pty Ltd t/​a KMDI v Saar Markovitch (C2018/6094) — 19 June 2019. 

The use of facial recognition software technology could potentially, dependent upon the facts in question, fall into this category. Facial recognition techniques have been subject to more media scrutiny and legal policy analysis, resulting in some police forces and institutions to discontinue systems that use facial recognition technology.

Policy wording

The extent to which an employer can implement facial recognition and other new surveillance technologies can be very dependent on having appropriate wording in their HR policies.

Prohibitions

The A.C.T  Workplace Privacy Act prohibits use of surveillance devices in parent or nursing rooms, prayer rooms, sick bays and first aid rooms at a workplace. Changes to the laws in other jurisdictions are expected in 2021.

#Facial_Recognition #Workplace_Relations #CCTV #Biometrics