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Recording conversations at work

Hi Bare Bones, we’re a small business on the Gold Coast. I’d like to use my phone to keep an audio record of a forthcoming disciplinary meeting. Is recording conversations at work legal?

Great question…especially now that everyone has a mobile phone that can easily be activated with discretion. The right answer is going to depend on two things:

  1. whether or not you plan to let the employee know you are recording the conversation
  2. why you’re intending to record the meeting (in other words, what you may be intending to do with the audio recording).

Here’s an overview, with a focus on the law in Queensland:

In Australia, laws relating to recording private conversations or activities vary from state to state. Queensland, Victoria and the Northern Territory has no legislation prohibiting the recording of a private conversation…as long as the person recording is involved in that conversation. By contrast, recording conversations without permission of all parties is prohibited in New South Wales, Tasmania, Western Australia, South Australia and the Australian Capital Territory.

In Queensland, the legislation prohibits communication of or publishing a record of the recorded conversation unless this is done to protect the lawful interests of the person making it.

Queensland employers are permitted to record termination conversations, for example, without advising the employee that they are doing so. This recording can then be used to demonstrate that the employee was afforded due process prior to their termination.

Whilst the secret recording of a personal meeting in Queensland is not a criminal offence, the Fair Work Commission has not looked favourably on employees recording conversations without the consent of the other party. Such actions have been seen as potentially a breach of the duty of trust and mutual confidence between employer and employee. From a legal perspective, courts have historically taken the approach that the desire to have a reliable record of a conversation or to gain an advantage in potential future litigation is insufficient grounds for making a covert recording.

In Australia, the Office of the Australian Information Commissioner promotes and upholds privacy and information access rights.

Whether it be an investigation, disciplinary meeting or workplace conversation, we advise our clients that permission should always be sought before recording any conversation. It might be acceptable to all parties to record certain meetings or record conversations in an investigation instead of taking written notes, so that minutes can be produced later. Should there be no agreement given by all parties, a support person taking detailed notes is an option for maintaining an accurate record of proceedings. A support person is also a smart resource to ensure all parties involved in a disciplinary process conduct themselves with professionalism.

There may be times when you feel it absolutely necessary to hold a covert audio recording of a conversation. One situation that comes to mind is if you feel the other party is likely to make threats of violence or extortion against you, your business or a member of your team.

While advances in modern technology make it easy to covertly record conversations in the workplace, here’s our final word on the matter: just because you can, it doesn’t necessarily mean you always should.

Like to know more about managing your HR risk or getting the best from your people? It’s a crazy world out there at the moment but, as Sun Tzu reportedly said over two thousand years ago, “in the midst of chaos, there is also opportunity”.

Bare Bones Consulting can help you identify HR opportunities that not only help your business survive today, but come through the other side in a stronger position than ever.  Check out how we can help here.

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Note: Bare Bones Consulting provides HR services for employers. Employees seeking advice on workplace concerns should contact the Fair Work Infoline on 13 13 94.