What the legislation says about secret recordings of workplace conversations
Generally, the Fair Work Commission views covert recording as an unacceptable practice in the workplace.
However, in most states and territories, legislation is device-specific and applies more broadly than in the workplace. For example, the Surveillance Devices Act 2016 applies to the use of listening and surveillance devices in South Australia. Although this legislation is not workplace-specific, it would apply to many workplaces.
While Western Australia and the Northern Territory have legislation regulating video or visual surveillance of private activities, New South Wales and the Australian Capital Territory are the only jurisdictions that have legislation specifically relating to workplace surveillance. Both statutes impose strict procedures to which an employer must comply in obtaining permission to perform covert surveillance in the workplace.
Limited workplace privacy provisions also exist in Victoria, where the relevant legislation applies more broadly than workplaces, and applies to listening, tracking and optical surveillance devices.
In most cases, express or implied consent of all parties is required before a meeting or conversation is recorded, with such permission being obtained prior to the commencement of any meeting or conversation. An exception may apply where it is reasonably necessary to protect the legal interests of the recorder. However, reference should be made to the relevant state or territory legislation to determine lawful use of any recording device.
With this in mind, the legality of covert recording of meetings or conversations in the workplace depends on the state or territory where the workplace is located.