Biometrics in the workplace
25 January 2007
An Employment Court judgement that an employer should have consulted workers before introducing biometric finger scanning for time keeping purposes should be approached with some caution, writes Otago University Law Professor Paul Roth.
In the recent case of OCS Limited v Service and Food Workers Union Nga Ringa Tota Incorporated (Wellington, WC 15/06, 31/8/06), the Employment Court held that the employer’s contractual and statutory obligations required it to consult the workers concerned and their union before introducing a biometric timekeeping system.
As far as the Court’s approach to the relevant employment agreement was concerned, the judgment was unconvincing. The agreement did not specifically require consultation over matters such as time-keeping methods, and the Court regarded as irrelevant the statutory obligation of employers to keep wages and time records. The Court also found that the employer had a good faith obligation under the Employment Relations Act to consult on any change in workplace practices, which seemed like a breathtakingly broad proposition.
The factor on which this case actually turned was the particular context: most of the nearly 50 employees concerned were Samoan. They regarded fingerscanning as culturally insulting because it implied that, like criminals, they were not to be trusted. Expert evidence was also introduced to substantiate the nature of Samoan beliefs concerning the sacredness of parts of the body and the concept of Va Fealoia, “the sacred space which governs and manages all relationships between people including employers and employees”.
The finding in this case, therefore, should be approached with some caution because it is quite specific to its own facts. The employees concerned belonged to a minority group that had cultural concerns relating to the new technology, and there was a specific statutory obligation for employers in the public health sector to be “good employers”, which includes “recognition of...the cultural differences of ethnic or minority groups”. Accordingly, the employees concerned ought to have been consulted before the introduction of a technology that was prima facie culturally offensive.
The finding is somewhat different to other cases. For example, in PMP Print Limited v Barnes (AA 317/04, 28/9/04), the Employment Relations Authority found that the introduction of a finger scanning system fell within the relevant contractual provision relating to time keeping. The employment agreement provided that “Employees are required to complete all time and wage records as required by the Company”, and this was found to cover biometrics.
The employee concerned argued that the technology involved stamping him with the ‘Mark of the Beast’, as described in the Book of Revelations, so that he would be unable to participate in the Rapture. The Authority, however, found that there was no basis for a claim of indirect discrimination, as the technology does not actually stamp a mark on a person, or even store the image of a fingerprint. It merely records a mathematical representation that cannot be reverse-engineered to reconstruct a person’s fingerprint.
Privacy Commissioners, both here and overseas, have also rejected finger scanning complaints. In a 2003 case note, the New Zealand Privacy Commissioner at the time rejected a union’s complaint against a company that introduced biometric finger scanning for time-keeping purposes. Similar complaints were also rejected by the Canadian Privacy Commissioner in 2003, and the Irish Data Protection Commissioner in 2005. In each case, the biometric identification system concerned was not found to be an unreasonable intrusion into the privacy of workers.
The OCS Employment Court case reported here relates to cleaners working at Wellington Hospital who refused to undertake daily thumb scanning in order to clock in and out of work.
Article courtesy of The Privacy Commisson's Private Word magazine, December 2006