The Fair Work Commission’s hearing of an appeal of Lee v Superior Wood is a must-read for Australian employers who are currently looking at implementing fingerprint technology into their operations. Timbermill worker Jeremy Lee, without any legal training or assistance, overturned a decision against him with the Full Bench finding that his fingerprint was personal ‘biometric data’ that the employer was not entitled to use.

With the use of technology being implemented across Australian employers’ operations – the case also throws a spanner into the works in relation to wearable technology and whether employers are entitled to utilise information potentially obtained from devices that may blur the line between a proactive duty of care and an invasion of an employee’s privacy. The company of Superior Wood were installing biometric scanners for use with a timesheet/payroll system for its workforce. Whilst the Kaliszewski v DOJCS [2020] VCAT 27 Victoria Corrections case dealt with the IPPs for fixed and known CCTV of a government department – it’s currently still an absolute legal minefield for Australian employers for any potential implementation of wearable surveillance technology without revising employment contracts. The Telecommunications (Interception and Access) Act 1979 (Cth) outlines that it is an offence to listen to or record phone calls through a phone network without a warrant. Until present, this has not been tested in the Courts for wearable technology.

The Supreme Court of Victoria’s case of Brown v Palmer [2008] VSC 335 was upheld on appeal that employers cannot install, use or maintain an optical surveillance device to record private activities without the consent of all parties. Until present, the Courts have not determined whether there is a definition of what constitutes ‘private activities’ during surveillance whilst a worker performs employed duties. Potential issues could arise for employer-implemented wearables when workers use the bathroom facilities, have private conversations whilst using personal devices and whether it would be legal for evidence obtained through the wearables to be used for performance management purposes. It also raises whether a third or external party would have a right to request the evidence from the wearables and the corporate governance required for data protection under the Privacy Act 1988 (Cth) and the APPs.

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Case note: https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb2946.htm