The rise of workplace surveillance raises the question of whether it is lawful to secretly record a conversation in the workplace on a smartphone (or any other device).
The Fair Work Commission has, on occasion, been required to determine whether secret recordings of conversations in the workplace are lawful, typically with respect to meetings involving the disciplining of an employee.
So, what is the commission’s view regarding such conduct in the workplace?
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.
An applicant brought an unfair dismissal claim against her former employer and attempted to tender as evidence audio recordings of two separate meetings with two managers to show that she did not resign from her position (as claimed by the employer), but was dismissed. The recordings were made without the knowledge of the two managers.
The employer submitted that the recordings were made unlawfully in contravention of the Listening and Surveillance Devices Act 1972 (SA), which prevents someone from intentionally using a listening device to record any private conversation, whether or not the person is a party to the conversation, without the consent of the parties to that conversation.
The employer further argued that the relevant provisions of the Fair Work Act 2009 and the Evidence Act 1995 (Cth) meant that the Fair Work Commission should not permit the recordings to be admitted into evidence. Under the Fair Work Act (s591), the Commission has broad discretion in relation to the admissibility of evidence and prescribes that the Commission is not bound by the rules of evidence and procedure. However, this does not mean that the Commission should not have regard to such rules when making its decisions.
The Commission held that since the recordings were made without the knowledge of the other parties to the conversations, they potentially breached the SA Surveillance Devices Act and would therefore not be admissible as evidence.
Where an employer believes that the recording of a private meeting or conversation is appropriate (that is, without witnesses), the other participants should be advised in advance that the meeting is to be recorded, so that any objections can be lodged prior to the recording.
Also refer to the relevant state or territory surveillance or listening device legislation before secretly recording any meeting or conversation in the workplace.
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