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This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

Recording Conversations At Work (NSW)


There are a number of legitimate reasons why an employee might find themselves recording conversations at work in New South Wales. Given the prevalence of Zoom meetings, it is now standard practice in most workplaces to record virtual meetings for later reference or training purposes. It is also becoming increasingly common for employees to use their smartphones to record conversations as a way to gather evidence of workplace bullying or sexual harassment. But just because something is commonplace, does not mean that it is advisable or even legal. This article examines the legality of recording conversations at work in NSW.

Legality Of Recording Conversations Under State Legislation

The legality of recording workplace conversations differs according to the jurisdiction. In NSW for instance, the Surveillance Devices Act 2007 prohibits anyone from making an audio recording of a private conversation when the person doing the recording is not a party to the conversation, or is a party but does not have the consent of all other parties.

It is an offence under this Act to deliberately install, operate or maintain a listening device or record a private conversation when the parties are unaware of the recording. The prohibitions against using listening devices do not apply to hearing aids or any other device used by a hearing-impaired person to allow them to hear sounds that are ordinarily audible.

The principal parties to a conversation must give express or implied consent to the use of the listening device. A violation of this law by an individual carries a maximum penalty of 100 penalty units and/ or 5 years imprisonment.

Exceptions

There are exceptions to this prohibition against recording conversations under this state legislation. Firstly, one party’s consent is adequate if the recording is not intended for publication or communication to anyone outside the conversation.

Another exception to this prohibition is if the recording is reasonably necessary to protect the lawful interests of the recording party. The court determines the definition of lawful interest in the context of the recording, weighed against the need to protect individual privacy. Previous case law has established that gaining an advantage in a civil proceeding is probably not sufficient to establish a lawful interest, but it is a lawful interest when the person making the recording does so because they have a genuine fear for their own safety.

Recorded Conversations Under Commonwealth Law

In every state and territory in Australia, it is a federal offence under the Telecommunications (Interception and Access) Act 1979 (Cth) to intercept or record any conversation conducted over a telecommunication system, regardless of whether the parties to the conversation consent. As such, under this legislation, it is illegal for someone to record any telephone or video conversation at work. This is now a particular cause for concern given the growing number of employees who are working remotely and using these types of communication devices to stay in touch with employers, co-workers and clients.

Grounds For Dismissal

Not only is it illegal under New South Wales law to record conversations at work except in very limited circumstances, it is also grounds for the employer to take disciplinary action or terminate the employment altogether.  The Fair Work Commission has previously ruled that covertly recording at work is an extreme impropriety that “strikes at the heart” of the employer-employee relationship. For example, in Chandler v Bed Bath N’ Table Pty Ltd [2020], the Commission found that the behaviour of an employee in making a covert recording at work was sufficient reason to make reinstatement impossible because of a loss of trust between employer and employee.

It is likely that most employees will be unaware of the legal implications of recording conversations at work, so it is recommended that a company implement a surveillance and recording policy. Such a policy needs to be clearly communicated to all incoming employees and outlined in training materials.

Surveillance And Recording Of Conversations By Employers

An employer may from time to time determine that it would be beneficial to make a recording of a meeting or conversation for later reference or circulation to other employees. Under state legislation in NSW, this is permitted if all parties to the conversation are aware of the recording and give consent. However, it is not clear whether this is permitted under Commonwealth legislation if the conversation took place via a telecommunication device such as Zoom. This is an area where an employer should seek separate legal advice specific to their circumstances.

The laws that govern recording conversations at work in NSW are complex and it is best to consult an experienced solicitor before taking any action. Please get in touch with the qualified solicitors at Armstrong Legal on 1300 038 223 if you need any advice on the admissibility of covert recordings, or representation on a sexual harassment or unfair dismissal case or other workplace or employment matter.

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