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Recording Conversations At Work (Vic)

In the modern workplace, it is not unusual for employers to use cameras and recording devices in the course of their work to monitor employees and promote a safer and more efficient workplace. At the same time, the technology to record conversations is now so readily available and inexpensive that employees can also utilise it. As a result, it is increasingly common for employees to use these devices to gather evidence for workplace discrimination and sexual harassment cases. However, the fact that these practices are commonplace does not mean that they are legally permitted, and even when they are legally allowed, employers may have policies prohibiting these recordings. This article examines the legality of recording conversations at work in Victoria.

Recording And Listening Devices

The regulations refer to the installation, use or retrieval of any type of surveillance recordings, such as a listening or optical surveillance device or tracking technology. However, it does not cover hearing aids or other devices that mimic a standard level of human hearing.

Recording Conversations At Work In Victoria

It is a contravention of the Surveillance Devices Act 1999 (Cth) for a person to use a listening device to record someone else’s private conversation at work without the express consent of all of the parties.

Conversations that are held in public areas, by contrast, where there is a reasonable expectation that it may be overheard, are not protected from being recorded under Victorian legislation. For instance, if a disciplinary meeting occurs in an office with the door open, in a lunchroom or outside the workplace, then it cannot be considered a private conversation.

In addition, the Surveillance Devices Act 1999 holds that employees are legally able to record a private conversation at work if they were a party to the conversation. However, the recording can only be published or further communicated with the consent of all parties, or if it is disclosed during a disciplinary or legal proceeding, or it is in the employee’s lawful interest or the public interest.

Lawful Interest

The definition of lawful interest as an exception to the rule against circulation or publication in this circumstance depends on the context of the recording, how the conversation is disseminated, and for what purpose. Case law suggests that a lawful interest does not include the desire to gain an advantage in a civil proceeding: for instance, it may not be an exception if the conversation is recorded to gather evidence of workplace bullying. However, it would probably be sufficient if the person is gathering evidence for a protective purpose, such as to support an intervention order.

The Fair Work Commission and the courts decide whether a recording should be admissible in a proceeding. The court or tribunal will weigh the probative value and importance of the evidence against the improper conduct or illegality of covertly recording at work.

Recording Telephone Conversations

Regardless of the law in Victoria, there is a blanket prohibition against recording telephone conversations under the Telecommunications (Interception and Access) Act 1979 (Cth). This federal law prohibits anyone from intercepting or recording discussions on a telecommunication device even if the parties consented. As such, it is against the law to record conversations at work that take place over a telephone. This prohibition is awkward given the growing number of employees who are working remotely and communicating with clients, employers and coworkers via telecommunication and video conferencing.

Valid Reason For Dismissal

In the case of Schwenke v Silcar Pty Ltd [2013], an employee was dismissed partially for secretly recording a conversation at work during a disciplinary meeting. During the unfair dismissal case, the commission held that the employee’s misconduct in making the recording was a valid reason for dismissal. The commission underlined the instruction that secret recordings undermine the trust necessary between employee and employer.

Company Policy

It is highly recommended that every company in Victoria have a company policy on recording conversations at work and makes sure that employees are aware of the company’s surveillance policy and the possible repercussions for breaking the rules.

If the employer’s position is to prohibit such recordings, then this should be explained to all new employees and added to training and induction materials. Company managers and human resource personnel should remain alert to the ease with which employees can record performance reviews and disciplinary meetings and should make sure the employee is reminded of the company policy. In the event that the employee asks to record the conversation, the manager needs to make their position clear, as it might be construed as implied consent if they do not outright deny the request.

It can be difficult for employers and employees to understand the laws that relate to recording conversations at work in Victoria, especially due to the inconsistency between overlapping state and federal legislation. It is best to consult an experienced employment lawyer for specific advice given your particular circumstances. Please contact the experienced solicitors at Armstrong Legal on 1300 038 223 for advice on the legality of recording public and private conversations at work and the admissibility of this evidence in court and during disciplinary and unfair dismissal hearings.

Dr Nicola Bowes

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.

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