The introduction of new technology in the workplace can be a real challenge for both employers and employees. Collecting biometric information about a worker's physical or behavioural features (eg, fingerprints, voice, face, or how they walk) is even more challenging.
In Fonterra Brands (New Zealand) Ltd v Lanigan the Employment Relations Authority (the Authority) examined whether the employer could require its employees to clock-in and clock-out using fingerprint technology.
Background
Fonterra purchased and introduced a timekeeping and attendance system that used fingerprint scanning technology. The reason for the new system was to collect accurate data to inform payment of wages and entitlements. The employee was one of about 30 maintenance workers at one of Fonterra's worksites who refused to use the scanning technology. The employee argued that Fonterra was intruding upon his privacy by requiring his biometric information. He also argued that Fonterra would need to vary the collective employment agreement before it could require him to provide his biometric information.
Decision
The Authority decided that Fonterra could lawfully and reasonably require its employees to use the fingerprint scanning technology for the purposes of recording time and attendance at work. It held that employees were required to follow lawful and reasonable instructions of their employers. The employee's concerns around security of information were rejected; the fingerprint scanning technology system being used offered the protection of encryption, so the risk of security measures being defeated was very slight.
The argument that the collective agreement needed to be varied was also unsuccessful. The Authority found that the collective agreement did not mention timekeeping or attendance technology or any limitations on its use. It found that a variation was not necessary when the employer was giving lawful and reasonable instructions because consent was not a precondition for giving an instruction.
The Authority also found that the ability of employers to give lawful and reasonable instructions is limited by the need for consultation and good-faith behaviour. In this case Fonterra allowed the employees to express their views on the fingerprint scanning technology and had adequately considered those views.
Commentary
The landscape around employers' use of new technologies such as fingerprint scanners or facial recognition is changing rapidly. If employers want to collect any kind biometric information (ie, fingerprints or facial scans), they need to make sure that there is a lawful purpose for collecting this information and that the collection is necessary for that purpose. Biometric information should be collected directly and transparently from the employee.
Consult with your Wynn Williams employment team if you are considering introducing workplace changes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
