In a startling revelation, it has recently become public knowledge that a Fair Work Commission Vice President had covertly recorded telephone conversations between himself and the President of the Fair Work Commission.  The Fair Work Commission is Australia’s national workplace relations tribunal.  The Vice President said that he did so to protect his own lawful interests. Whilst this article will not explain why the Vice President considered it necessary to protect his own lawful interests by secretly recording conversations in his workplace because the recent public coverage, might encourage copy-cat conduct by employees, it is timely to review the Australian legal framework in relation to the regulation and use of surveillance devices, such as listening devices in the workplace or elsewhere.  The recent public coverage might encourage copy-cat conduct by employees.

The Law

The regulation of surveillance device laws is primarily at a State and Territory level with very little, to no uniformity between the States and Territories other than that they all prohibit (subject to certain exceptions) the secret use or installation of listening devices as well as the communication or publication of a privately recorded conversation.

Certain jurisdictions permit a participant to record a private conversation in the absence of consent of the other parties (as long as they themselves are a party to that conversation) while other jurisdictions do not.[1]  Further, certain jurisdictions[2] permit covert recording of a conversation provided there is the consent of one principal party and the recording is reasonably necessary to protect the lawful interests of that principal party, as relied upon  by the Vice President of the Fair Work Commission.

In certain jurisdictions[3], a covert recording is permissible if the recording of a conversation (whether a telephone conversation or face-to-face conversation) is consented to by one of the principal parties and is not made for a purpose of communicating or publishing to another person (i.e. the recording was made for their own benefit).  Consent can either be express or implied.  Again, in select jurisdictions[4] an employee is able to lawfully communicate or publish a private conversation in the course of legal or disciplinary proceedings. Even if an employee can lawfully record and communicate a private conversation, it is another matter whether the recording will be admissible in proceedings. That will ultimately, be a discretionary matter for the court or tribunal.

Why Employees Feel the Need to Secretly Record Conversations

Increasingly, and in our experience, employees assert that they are fearful that their employer is, or going to, manipulate the outcome of disciplinary or performance improvement meetings to better their case or at least protect their position, should an employee bring legal action against them. In such circumstances, an employee may be tempted to secretly record such a meeting with their manager in an attempt to capture any potentially incriminating statement made by the employer.

Employer Takeaways

  1. During all disciplinary or performance improvement meetings with employees, employers must remain vigilant, act cautiously and as far as they reasonably can, ensure that the meeting is not secretly recorded.  Comprehensive notes should be taken by the employer during such meetings and ideally, the employee should be asked to acknowledge the notes as an accurate record of the meeting.
  2. If an employee asks to record a meeting and an employer does not wish to be recorded, the employer should make it expressly clear that it does not consent to the recording. This is important to avoid any later suggestion of implied consent to the recording.  In the event an employee still records the meeting, this may ironically become a disciplinary matter itself for refusing a lawful and reasonable direction of the employer.
  3. Employers may consider adopting appropriate policies in relation to the use of mobile phones or other recording devices in the workplace.

[1] For example, the laws of Victoria, Queensland and the Northern Territory permit a participant to record a private activity in the absence of consent of the other party/parties.  The laws in New South Wales, South Australia, Tasmania, Western Australia and the Australian Capital Territory require the express or implied consent of all ‘principal parties’ to a conversation.

[2] New South Wales, South Australia, Tasmania, Western Australia and the Australian Capital Territory.

[3] New South Wales, Tasmania and the Australian Capital Territory.

[4] Victoria, Queensland, Western Australia, Tasmania and the Northern Territory.

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