“While keeping up with the pace of change and ensuring that employees are skilled up to the latest advancements is becoming increasingly important, employers also need to be aware of the potential legal and regulatory pitfalls associated with early adoption,” say Kylie Dunn and Liz Blythe, both senior specialists with law firm Russell McVeagh.
Dunn leads the firm’s employment practice while Blythe is a highly experienced lawyer across the technology and commerce sector – the pair recently joined forces to offer insight into how digital advancements will impact employers across New Zealand.
According to Dunn and Blythe, there have not yet been any cases through Kiwi courts regarding the imposition of new technologies – such as microchipping – on the employment relationship. However, there have been a number of decisions regarding the introduction of new technology which can offer guidance to employers.
Firstly, the technology and its application to the workforce must be lawful.
“The technology must be permitted by law in New Zealand, and it also must not breach a provision of the employment agreement or the Privacy Act,” say Dunn and Blythe, pointing to a 2013 case between an Electrical Union and Mighty River Power.
“The Employment Court prohibited Mighty River Power from introducing a random testing into an industrial workplace on the basis that the employment agreement contained a contractual obligation requiring individual consent to the collection of workplace data,” they explain.
Secondly, the technology must be implemented in a fair manner – a rule which was clarified after the Employment Court considered the process required to introduce fingerprint scanning for time recording purposes back in 2006.
“In OCS Ltd v Service and Food Workers' Union Nga Ringa Tota Inc., the technology was implemented without consultation, and over the objections of a Pasifika workforce whose concerns were on cultural grounds,” explain Dunn and Blythe.
“The court held that employees were not acting unlawfully in refusing to use the new technology, and the employer was required to consult and consider feedback before implementation could be lawful.”
Emerging tech HR should be aware of
Developments in the technology space are happening faster and more frequently than ever before with organisations scrambling to adopt new advancements and stay ahead of the pack – however, two top legal figures have warned that the quick pace could end up putting companies at risk.