Is it lawful to secretly record a conversation on a smart phone at work?

phonerecording

In the age of smart phones, it’s easier than ever  to record conversations at  work. In any meeting at the workplace, it is almost certain that at least one person has a smartphone in their pocket that can record voice at the touch of a button. For those who are being bullied at work, what better and tempting way to preserve some hard needed evidence to prove you have been genuinely bullied!


Secretly taped conversations of meetings (incl. incidences of alleged bullying in for example 1 on 1 meetings) are increasingly popping up in proceedings at the Fair Work Commission. However, so far, the Commission has taken a very dim view of such conduct, finding that the secret recording of conversations can “breach the employee’s duty of trust and confidence”.

So the question is, is it lawful to secretly record a conversation on a smart phone?

The lawfulness of covert recording of conversations is governed by State legislation. Each State has enacted its own surveillance legislation which differs in some important respects.

However as a general rule of thumb, recording conversations is permissible provided that express or implied consent is obtained before the conversation takes place.

A failure to obtain express or implied consent can be a breach of the law which may result in criminal punishment. There are various defences – for example, some legislation allows secret recording where it is reasonably necessary to protect the legal interests of the recorder. Careful examination of the legislation of the State you operate within is required.

What is the Fair Work Commission’s view on covert recordings?

It is quite is clear from recent cases that the Commission views covert recording as an unacceptable practice in the workplace.

In Thomas v Newland Food Company [2013] FWC 8220, the employee (and injured worker) secretly recorded a number of discussions he had with his operations manager, as well as the meeting in which he was dismissed. He also took photos of alleged food mishandling practices and allegedly told colleagues that he was going to report the employer to authorities.

The Deputy President  found that the injured worker’s dismissal was unfair (for other reasons), but nonetheless refused to order reinstatement because of his covert recording practices, sending a warning to secret recorders:

“In my view, there could hardly be an act which strikes at the heart of the employment relationship, such as to shatter any chance of re-establishing the trust and confidence necessary to maintain that relationship, than the secret recording by an employee of conversations he or she has with management.”

The Deputy President’s findings add to the views recently expressed by other members of the Commission that secret recordings are:

  • “quite properly described as sneaky [and] … abhorrent to ordinary persons dealing with each other in a proper fashion” (Senior Deputy President Drake in Lever v ANSTO [2009] AIRC 784);
  • “deceptive and purposely misleading” (Commissioner Cloghan in Schwenke v Silcar [2013] FWC 4513); and
  • “seriously wrong and inexcusable … [and] a valid reason for dismissal” (Commissioner Williams in Thompson v John Holland [2012] FWA 10363).
So basically it can be unlawful in private workplace conversations.
Where you believe recording is appropriate, you should advise the other participants in advance that you propose to record the meeting, and request that they advise you if they object.

 

[Post dictated by WCV and manually transcribed by T on behalf of WCV]



This post has been seen 23778 times.

65 Responses to “Is it lawful to secretly record a conversation on a smart phone at work?”

  1. surveillance act mmm tell allianz im malingering and they can find me under a rock mmm fuck ive put on few kilos tell em under a boulder .

    Thumb up 0 Thumb down 0

  2. I wrote a Stat Dec about one specific appointment. He was an absolute farce, and was shaking in his boots with rage and did not ask a single question in relation to the injury or management/rehab. No measurements were taken or specifics determined, when that’s what the actual appointment was for.

    I went to the local courthouse for the JP to sign the Stat Dec – he read it and looked at me as though I was crazy. I explained to him what happened in the appointment – he could not understand as to how a ‘Doctor’ would treat a patient that way – just like most normal every day people who have the general assumption that all Doctors are ‘nice’ and ‘caring’.

    Many Doctors are, but many of the ones involved in the WorkCover/Insurance industry are in it for the money/kickbacks. Look up a few on the http://www.ratemd.com website.

    KW, it sounds as though you may be in the early days of your claim. Please believe me, and the others here, when we say that not all Doctors are ‘nice’. When you see the reports come back saying the complete opposite of what happened behind closed doors (always to your detriment and the insurer’s benefit), that will be the time you realise you are now ‘in the system’. It has happened to us all, and unfortunately you are now also in their little game, and the injured worker is the loser.

    Good luck with your claim, however please understand we are all trying to help each other, as the everyday person tends has any idea (or care) of what happens to someone in this disgusting system until it happens to them, and then it is too late.

    Thumb up 0 Thumb down 0

    • @jon or should i say @whitecollarcriminals, @complaintmaker, @bimmer, @various, @protectyourself ….. after all it is one and the same person behinds all these names!!!!! duh

      mate it was as obvious as shit that it was the same person obsessively posting multiple times under different names, that was the point of my earlier poking remark. want to know how i figured it out? well i didnt conduct covert recordings, buy any video spy gadgets, record to multiple devices for concurrency or study the surveillance act. A bit of the old visual surveillance was sufficient. bugger me maybe i should consider a career as an ASIO agent!!

      the big pisser was watching you post comments under a different name to agree with your own earlier comment. ha ha ha It was like watching Sybil have a conversation amongst her different identities.

      thanks for the entertainment.

      Thumb up 0 Thumb down 0

      • @KW I can assure you that all these people you mention are NOT all and the same – I just checked our log files.

        Thumb up 0 Thumb down 0

        workcovervictim3 December 9, 2013 at 6:36 pm
      • I would like to say I am not any of the other people you allege and my evidence has been taken seriously by several NSW organizations and there is action that has already happened in relation to my matters.
        You may be one of the lucky ones but I can assure you there are a number of IMEs who are not ethical. I have the hand written notes of one assessor and his report to the insurer stated the opposite so that was enough proof for the insurer to reply to me that he would never be used again by them and there is further action to come. I have it all in writing from the insurer who investigated themselves so if I were you I wouldn’t be so quick to judge others who you may need assistance from in the future.

        Thumb up 0 Thumb down 0

        • Complaint maker – the insurer investigated the IME based on your hand written notes? really that’s amazing! Can you tell me if that was because your insurer couldn’t use the IMEs twisted responses (Dr Fraud’s Report) to cut you off anyway? Please excuse my cynicism, but find it hard to believe that any insurer acts fairly!

          Thumb up 0 Thumb down 0

          • OMG Does that mean Santa and the Easter Bunny is real..

            Thumb up 0 Thumb down 0

            • No. The IME got me to fill in a form and then he crossed out things I wrote and wrote his own ideas all over my form and his fraudulent report was obviously opposite what I had written. I obtained a copy of the form with what the IME crossed out and wrote over plus his report and the referral from the insurer’s solicitors through GIPA demonstrating to the GM of the insurance company how corrupt it all was. It is still in the middle of an investigation. They ended up paying my claim and threw out the report and told me they would no longer use that IME and would review the use of IMEs. I won’t say much more as I don’t want to compromise the investigation and I have evidence from other people’s cases as well so it is going through the processes which takes time as the burden of proof is what matters in cases such as this.
              This is the reason I am always telling people to look up the guidelines and put them to the insurer and to make complaints straight away to the insurer first about bad experiences with IMEs. Do it in emails so you can forward to WorkCover. The insurers are also part of the fraud if they allow, condone or let it happen. Much of the time the insurer’s solicitors are doing things with the case managers that management higher up are not aware of because when there are so many cases people are trusted to be doing their jobs when they are not. These bad IMEs will not be out of the system unless people make complaints to the insurer and to WorkCover etc. Accountability never happens without complaints.
              I’m not worried if any insurer reads my comments because what I have said is factual and I have the evidence to prove it.

              Thumb up 0 Thumb down 0

      • kw, why give up your perfectly good career with the Insurance Company ?
        How about we all provide you with our names and case numbers so you can verify we are not one and the same poster ? Would you like that ?

        Thumb up 0 Thumb down 0

      • Now @kw,

        I have tried to be be fair and reasonable in my posts to this blog. But you sem to bring the best out of people (NOT).

        If only for a moment, take off your blinkers, open you mind. Has it ever crossed your small and insignificant brain, that visitors to this blog agree with other opinions on this blog because their personal experience with low-life greedy insurance case manager, corrupt IMEs, manipulative rehab provider (after their bonuses) and the adversarial nature of this fucked up workers compensation scheme, is almost identical.

        Well fuck me, injured workers being fucked over by the system visit a blog dedicated to helping injured workers! WTF

        Fuck off kw, and go visit a blog where your bullshit and sociopathic humour is found to be amusing – and that is not here, not on this blog!

        Thumb up 0 Thumb down 0

  3. Hi guys, have a question what if this is your second accident and its not related to the first one and the first one was approx. 15 yrs ago will they being the insurance comp hold that against you and do you have to declare it,over heard this in a doctors office.

    Thumb up 0 Thumb down 0

  4. I know from experience to find out your rights before going to a IME appointment as I was very upfront with my last taking in a tape recorder as I was on so much medication and I couldn’t get another person to go with me to the appointment. I followed the Doctors wishes and didn’t record the session even thou he was allowed to do this which to me is a bit of a laugh as if he allowed to record the session why wasn’t I allowed

    As like most the people in here the IME tend to back the insurance company wants and needs and make most people feel like out and out criminals. But I never personally ever had a IME session lasting as little as 10 minutes wow kw (for me its simpler to go to the IME appointment, answer their questions, in and out in 10 mins) I shortest time ever for me was 30 minutes where you are integrated like a criminal I wish I had a IME Doctor that is like yours.

    Thumb up 0 Thumb down 0

    ptsd_workcover_victim December 9, 2013 at 5:30 pm
  5. ptsd_workcover_victim

    “I followed the Doctors wishes and didn’t record the session even thou he was allowed to do this which to me is a bit of a laugh as if he allowed to record the session why wasn’t I allowed”

    IMEs are not supposed to be recording the IME assessment. They would have to make you aware that they were doing that. Did the IME say they were? What makes you think the IME was recording your assessment?

    Thumb up 0 Thumb down 0

  6. KW: after reading all your posts i have worked out you need to get back to doing your IME’s and sucking up to some more ass at the workcover building.

    Thumb up 0 Thumb down 0

    • @surprised I think that @kw is someone from an insurance company that has come on the site to stir up trouble.

      I don’t believe they are an injured worker! If they were truly an injured person they would be a bit more understanding and not having a go at people on this site!

      MEOW!!!!!

      Thumb up 0 Thumb down 0

      • Pugsley, you maybe correct in your assumption, especially after reading KW’s “Sybil” post. If it is, it just demon-strates (emphasis on “demon”) the calibre of person that may be handling injured workers files! I’ve come across this type of personality before – the petty, immature, disturbing ravings of case/team/claim/technical managers, which shows the disdain and contempt that insurer employees are conditioned to feel for injured workers, that is for claim number XXX who stands in the way of achieving the team target for the month. Many make it painfully obvious that they have an adversarial “us against them” mentality and their attitudes perpetuate that response from injured workers! No wonder this website exists!

        Then again, it could be a very angry injured worker who is lashing out? If that is the case KW, direct your negativity where it belongs. Do not post unless you need assistance or can offer some, because attacking other injured workers will not help your situation.

        Thumb up 0 Thumb down 0

        Protect Yourself December 11, 2013 at 1:44 pm
      • Of course its as plain as the nose on your face,remember back when we had the ex-cop who now is a PI on this site.

        Thumb up 0 Thumb down 0

  7. I soughtadvice from my lawyer re recording IME’s etc to do with workers comp….Had I not recorded the Clown IME I was sent to recently where he manipulated and distorted the facts including manhandling me during his 3 minute physical and where I have now got new injuries….I would be screwed…..I have on my recording the clown apologising after I yelped in severe pain and said he was hurting my ankle and hip due to the unreasonable force he used to force my leg into a position it cannot go into…he even offered assistance 4 times to help me get up and down after he hurt me and even commented on me not being able to weight bare…..but did he put that in the report NO!

    this is the advice I was given this is NT law

    The Surveillances Devices Act (s.15) makes it an offence for anyone who has taped a private conversation to communicate or publish that conversation. However, the offence provision does not apply to disclosures in a legal or disciplinary proceeding, or is in the public interest or protecting your lawful interests. It is likely that it is in the public interest if a medical practitioner assaults his patients or at least manhandles them during an examination that goes beyond what is reasonable and it may well be considered a disciplinary proceeding. I have not researched this at the Supreme Court Library, but it is unlikely that a Court in the NT has ever had to consider these provisions, so we don’t have any guidance from the courts. My advice is that you would be on fairly safe grounds if you disclosed. It is possible that you could rely on the grounds of public interest or to protect your lawful interests. However, under the Health & Community Services Complaints Act you are almost certainly protected by s.95. That protects you from supplying information that such a disclosure would otherwise be a criminal offence provided you do so in ‘good faith’ which I would say applies to you

    Thumb up 0 Thumb down 0

    • deluded,

      I to have recorded medical examinations with the insurance/employer doctor who took it on himself to be my treating doctor. I also recorded my phone conversations with the employer’s return to work coordinators. When the insurer denied my claim because I apparently refused to cooperate and participate in my return to work program I had evidence that it was the employer doctor who certified me fit for 8hrs but unfit for sitework, unfit to drive and avoid prolonged sitting, walking and standing and the employer’s return to work coordinators refused to allow me to return to the worksite and refused to find me new work somewhere else. After the insurer found out I had recordings they dropped the claim I refused to participate in a return to work program and denied the claim because I had a previous injury. Which was on the other side of the body 5 years earlier , was declared on the employment form TWICE and during the pre-employment medical TWICE as I worked for this company on two different projects since the previous injury. Funny enough according to the insurer’s lawyers apparently I never recovered fully from the previous injury which wasn’t even on the same side and what is even more strange is that I had a number of other pre-employment examinations for other companies since the earlier injury all of them passed successfully. In hindsight I should have started recording everything after I recovered from the previous injury so now I could provide evidence I did the pre-employment examinations and passed. These days not only do you have to provide evidence to the insurer that you injured yourself at work but you also have to provide evidence you were not not suffering for any injuries before you have an accident.

      Thumb up 0 Thumb down 0

      • Yes you do put forward some interesting facts insurance companies dont like it when they know you have recorded IME consults….I only started to record not just insurers IME’s but my own Drs…society has this expectation that Drs never make mistakes! and of course they do make mistakes they do miss things and they dont write the information they have discussed with you in their reports….Classic example of a huge mistake was with Global Inflation and their pre-employment medicals….the Dr doing these medicals missed a spinal fusion…wtf how do you miss something like this?
        Pre-employment medicals they dont really hold up too much in the long run and this would be why a lot of employers dont bother with them

        so yes we the employee need to record everything as long as it is not vexatious in order to protect ourselves …..

        Money maketh the world go round and in every industry you have crooks and scammers including Drs who work for insurance Co’s…there are some honest ones but they get very little work…insurance companies well maybe one day they may become honest we can dream cant we!

        Thumb up 0 Thumb down 0

  8. For injured workers in Vic – please refer to section 11 (2)(b),& (c) below

    http://www.austlii.edu.au/au/legis/vic/consol_act/sda1999210/s11.html

    Victorian Current Acts

    SURVEILLANCE DEVICES ACT 1999 – SECT 11

    Prohibition on communication or publication of private conversations or activities
    S. 11(1) amended by No. 26/2004 s. 8(a).

    (1) Subject to subsection (2), a person must not knowingly communicate or publish a record or report of a private conversation or private activity that has been made as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device.

    Penalty: In the case of a natural person, level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both;

    In the case of a body corporate, 1200 penalty units.

    Note to s. 11(1) inserted by No. 13/2013 s. 42(1).

    Note

    Section 32A applies to an offence against this subsection.

    (2) Subsection (1) does not apply

    (a) to a communication or publication made with the express or implied consent of each party to the private conversation or private activity; or

    (b) to a communication or publication that is no more than is reasonably necessary—

    (i) in the public interest; or

    (ii) for the protection of the lawful interests of the person making it; or

    (c) to a communication or publication in the course of legal proceedings or disciplinary proceedings; or

    Thumb up 0 Thumb down 0

    White Collar Criminals December 11, 2013 at 2:11 pm
  9. Has anybody heard how lisa is going I would love to know.

    Thumb up 0 Thumb down 0

  10. surprised
    sorry have had computer issues anyway
    The IME didn’t tell me he was recording the session but I could clearly see a voice recorder next to him which you could see the light was on. I did state to him if he was allowed to record the session why wasn’t I he then went into a huge ramble of information which quoted numbers and information as I didn’t have a internet handy I didn’t know if that was true or not and thought he would know the law better than myself as a lay person.
    I did state to him I thought it was a bit suspect that he could record the session and I was not seemed a little outrageous as I didn’t have a 2nd person with me and was under the influence of medication and that was the reason why I wanted it to record it. But after reading everything in here as long as I tell him which I did that I would be recording the session he has no say in it at all as it is my right to and my next appointment will be a lot different from now knowing what my rights are really helps. I also found the information on the friends list helpful as well and will be printing this off and asking more questions of who they are and what purpose of the session is exactly as I really been a little naive up until now.

    Thumb up 0 Thumb down 0

    ptsd_workcover_victim December 13, 2013 at 1:20 pm
    • Hi

      Just love seeing the case mangers face when you tell them you have recorded the consults etc especially when it is full of BS or the IME ‘man handles” you with their subjective 5 min physicals….we need to start an Australian wide register of IME’s that abuse the system….I got a reply back from the Australian health practitioners regulation agency today stating that the complaint I lodged about that fatuous arrogant rude clown is now in front of the medical board…..Even if the board decide not to take any action this clown will have a black mark recorded against his name….Just love friday 13th

      Thumb up 0 Thumb down 0

      • Deluded, I agree – Medical Board complaint all the way. Also find it useful to ask “do you know Dr so and so?” and mention that he was reported to Medical Board, at my IME appointments. Let’s the IME know that I’m not a push-over just because I have an injury, and will act if I have to. It’s a subtle warning to any prospective unethical/dishonest IMEs that their financial windfall from repeat insurer business may be short-lived if their reputations are at stake.

        Also, don’t forget to post on http://www.ratemds.com because it lets all injured workers know who the Dr Fraud IMEs are.

        Thumb up 0 Thumb down 0

        • Hi WTF

          I have put him on that site…..I have managed to fast track my case so now just need quotes from reputable specialists to put my offer on the table….but dont worry this canary knows how to sing….I let everyone know about him!

          Thumb up 0 Thumb down 0

    • PTSD WorkCover Victim, contact legal aid in your State. One thing is for sure – IME would not be allowed to use the recording without your permission. You could also ask for a copy of the recording. If refused to provide copy, than you would be within your rights to make your own recording. IME may be recording to protect his legal interests in case injured workers challenged anything in their report or recall your responses. I would be asking for a written and signed disclosure statement regarding IME’s use of the recording. This is to confirm that insurer is NOT getting access and only for IMEs own use and also a statement regarding period of retention of recording. Otherwise you may be within your rights to refuse to proceed with assessment.

      Thumb up 0 Thumb down 0

      White Collar Criminals December 15, 2013 at 3:48 pm
  11. Hi
    had my mediation today….I managed to discredit the fraudulent lying dog of an IME…The mediator was gob smacked over my treatment by this IME and concluded that my story was clear concise and to the point….He even asked for a copy of notes as he said he was very impressed with what I wrote….the mediator even gave her a copy of my notes as he felt she needed them The insurance Co,s rep was totally lost for words and tried to stick up for the low life piece of scum IME by stating he has never written a report nor treated any of their clients in the way that I was treated.. and he is not an “assessor to disregard peoples injuries just for insurance Co’s..I dont know why she stated about him being an assessor for their insurance Co..as I not mentioned it…Well this opened up pandoras box….I shot her down in flames in a nice way….and quoted case law and judgements from the Ausslii website where this low lying dog had magistrates and judges state that he was a “professional investigator” and he has had his reports tossed out on the basis of lack of expertise! I also informed the rep that I had contacted the various medical specialists colleges to inquire if this dog was registered with them…..blah blah blah…. and I would happy glad love to take this dog to court and cross examine him myself ( I did let her know I only had 1st year Law behind me) well anyway at the end of the day….I didnt get my entitlements etc restored….but the rep did ask me to put an offer forward to choose and do my surgery where and when I want….is this good or bad…Havent had a chance to talk with my lawyer yet!

    Thumb up 0 Thumb down 0

  12. 6months of no payments for a psychological injury 18 months ago .. Been a horrific awful process and had no govt support as I’m a nz citizen

    I have my hearing on Monday 23 dec…
    Merry Xmas !
    Any body able to settle my nerves about what to expect???

    Thumb up 0 Thumb down 0

  13. Hi @long wait welcome to the club!

    If it is anything like mine your barrister will rail road you into accepting a pathetic settlement and you wont even go into the court room. My barrister and lawyer were pathetic and I wouldn’t recommend them to anyone.

    I had 12 months of no payments and ended up settling for 6 months pay (because that is the so called standard) and all medicals paid for 12 months so good luck I feel for you.

    If you have a decent lawyer you might do better I hope for your sake you do.

    Thumb up 0 Thumb down 0

    • Well are you going to share who your solicitors were or do we all get to lucky dip on who great and who’s bad

      Thumb up 0 Thumb down 0

      • @Miss L – as per our article re the rogue lawyer, one has to be extremely careful naming law firms or lawyers on public sites such as this one as we – the site owners- really do regularly get served with lawsuit threats for defamation….. It is indeed a tricky situation!

        Thumb up 0 Thumb down 0

        workcovervictim3 December 21, 2013 at 1:03 pm
      • @Miss L I would dearly love to tell everyone the name of the law firm that did not help me with my claim but in fact ripped me off but unfortunately I will not allow this site to be sued (or myself for that matter) for defamation.

        I will tell you that while I was dealing with this woman I spoke to Shine lawyers including John Typaldos and they were fantastic and had I been in a position to change lawyers at the time I would have changed to them, but as it was too close to my court hearing it would have been too difficult and my lawyer at the time would have gone after me for fees.

        Thumb up 0 Thumb down 0