More and more workers, including injured workers and allegedly bullied or discriminated workers, are secretly recording conversations in the workplace and, for example, during their independent medical examinations. But isn’t making a secret recording against the law?
Workers may want to secretly record a conversations) in the workplace or during an independent medical examination for a variety of reasons. Some believe think their boss is trying to set them up (i.e. for dismissal); others may be trying to secretly record or film perceived bullying or discriminatory behaviour; and more and more injured workers secretly record their independent medical examinations/impairment assessments in order to demonstrate (potential) bias, rushed & superficial examinations, the IME’s ‘behaviour’ etc.
Diary of a workcovervictim continues to receive many queries from injured/ill workers, asking whether they are ‘legally’ allowed to secretly record.
Is making a secret recording of conversation against the law?
It is NOT against the law to secretly record a conversation in Victoria, South Australia and Queensland, and, we believe, the Northern Territory as long as the recorder is part of the conversation. Generally speaking, the secret recording is to be made in order to protect the worker in any (ensuing) dispute, i.e. about their job/employment. This is a strict requirement in South Australia.
In all other Australian states (NSW, ACT, TAS, WA), it is against the law for a worker to secretly record a conversation without first seeking permission (approval) from the other people/parties to the conversation. However, in each state (and territory) there are exceptions. Generally speaking if a person consents to a recording by a second person in order to protect the first person it is allowed.
In Detail – The Surveillance Devices Act
Each Australian state and territory has its own set of rules and regulations that apply to secret recordings of private discussions. Most of these laws apply generally and are not specific to the employer-worker relationship (although there are exceptions, such as the Workplace Surveillance Act 2005 (NSW)). Nevertheless, the general rules apply to the workplace setting.
As an example, the Victorian legislation (the Surveillance Devices Act 1999 (Vic) (SD Act)), prohibits a person from using any device (including a smartphone) to record a private conversation to which the person is not a party, unless the person has the consent (express or implied) of each of the parties to the conversation to record it.[Surveillance Devices Act 1999 (Vic) s 6(1)].
The maximum penalty for recording a private conversation without consent is 2 years’ jail and a hefty fine.
Additionally, even if a private recording is lawfully made, the Surveillance Devices Act prohibits the communication or publication of that recording without the consent of each of the participants to the conversation (with limited exceptions).
The other Australian states and territories have legislative schemes broadly similar to that in Victoria. Although in some jurisdictions (for example, Western Australia) [Surveillance Devices Act 1998 (WA) s 5(1)(b)] , it is unlawful to record a conversation, even if a person is party to it, without the consent of all participants.
Are secret recordings admissible as evidence?
In quite a few recent Fair Work cases, workers have attempted to have their secret recordings of conversations with -for example- their boss/employer admitted as evidence.
The Fair Work Commission (FWC) has actually a wide discretion whether or not to admit a secret recording as evidence. The FWC is not bound by the rules of evidence that ordinarily apply in a court of law.
Generally speaking a secret recording will be admitted as evidence where:
- the secret recording is lawful i.e. it is against State or Territory legislation. Secret recordings made in Queensland, Victoria or SA are more likely to be admissible as evidence
- there is no objection by the boss/employer (eg. in cases where the boss/ employer is aware of the contents of the recording or thinks the secret recording is not likely to prejudice their case)
- the admission of the secret recording is actually desirable or useful with re to the subject of the proceeding
- the secret recording is the best evidence available (of what transpired), and
- where the secret recording will significantly help the worker’s claim.
However, as we have discussed previously (eg.”Using secret recording devices may be a pointless exercise“; “Does a secret recording of a discussion with your boss offer you any protection in termination or bullying cases?“), having your secret recording admitted as evidence may NOT always be in your best interest because it the secretive nature of making a covert recording can raise issues of trust and confidence (with for example the employer/boss).
It’s also important to know that some employers have an actual policy about the use of recording devices in the workplace. For example the policy may explicitly state that the recording of conversations is only allowed with the consent of all parties to the conversation, and that making secret recordings may be a breach of trust and confidence- which would lead to dismissal/termination)
Thomas v Newland Food Company  FWC 8220 (21 October 2013). The applicant worker had, during his employment, secretly recorded conversations he was having with senior management. He was later dismissed and made an unfair dismissal claim seeking reinstatement. He relied, in part, on his secret recordings.
Deputy President (Sams) found that the employee had been unfairly dismissed. However, whilst the worker’s secret recordings were legal (in Queensland), the act of recording was found to have breached the trust between the parties. DP Sams consequently ruled out reinstatement as a remedy.
Surveillance Device Acts (and other Privacy laws) can be found here
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