Most Read Contributor in Australia, September 2016
A recent spate of cases indicate it is becoming more common for
employees to record conversations in the workplace, and later seek
to rely on them in a legal proceeding against their former
employer. A 2015 Federal Circuit Court decision examined the
circumstances in which these types of recordings are obtained, and
whether they should be admitted as evidence in court.
Unfortunately, recordings of private workplace conversations are
often made covertly and without consent. Surprisingly, in limited
circumstances, the courts or the Fair Work Commission may allow
these recordings to be used by employees as evidence in legal
proceedings, even when they have been improperly or unlawfully
Australian surveillance laws
There are different rules in each Australian state and territory
in relation to recording private conversations. Only NSW and the
ACT have legislation specifically targeted to recordings in the
workplace (the Workplace Surveillance Act 2005 and the
Workplace Privacy Act 2011).
The other states and territories have legislation that applies
broadly to use of surveillance devices, including listening devices
that can record private conversations. Recording private
conversations is subject to the following restrictions:
ACT, South Australia and
Tasmania - It is unlawful for employees to record private
conversations unless a principal party to the conversation consents
and the recording of the conversation is reasonably necessary for
the protection of the lawful interests of that party.
Victoria - It is unlawful to record a private conversation
unless the employee is a party to the conversation. However, the
legislation prohibits communication of or publishing a record or
report of the recorded conversation unless this is done to protect
the lawful interests of the person making it.
New South Wales, Northern
Territory and Western Australia - It is unlawful for
employees to record private conversations (even if the employee is
a party to the conversation) without the consent of each of the
parties to the conversation.
Can covert recordings be used in legal proceedings?
Generally, even if evidence is obtained improperly or in
contravention of an Australian law, it may still be admissible in
legal proceedings. Under uniform evidence legislation, courts are
given a discretion to allow unlawfully obtained evidence to be used
in a proceeding. This is subject to the court being satisfied that
the desirability of admitting the evidence outweighs the
undesirability of admitting evidence that has been obtained (in the
circumstances that the evidence was improperly or unlawfully
In Ogbonna v CTI Logistics Ltd & Ors1,
the Federal Circuit Court found that the desirability of admitting
the covert recording did not outweigh the undesirability of
admitting it. In particular, the Court took the following matters
the recording was made contrary to the Surveillance Devices
Act 1998 (WA);
the evidence was available through oral witnesses; and
the recording did not assist in the determination of the issue
in the proceeding (racial discrimination).
Lessons for employers
Although the covert recording was not permitted in the case
above, it serves as a reminder that you should take steps to
prevent employees from covertly recording private conversations in
In particular, you should:
require employees to switch off their mobile phones in
confidential meetings, such as disciplinary meetings or discussions
that may result in termination of employment;
take written records of important workplace meetings, and allow
employees to do the same; and
update workplace policies to ensure consistency with relevant
This publication does not deal with every important topic or
change in law and is not intended to be relied upon as a substitute
for legal or other advice that may be relevant to the reader's
specific circumstances. If you have found this publication of
interest and would like to know more or wish to obtain legal advice
relevant to your circumstances please contact one of the named
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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