From time to time Employers may be faced with employees secretly recording workplace conversations. The legality of recording private conversations varies from State to State.
In Queensland, if you are a party to a face to face private conversation you are legally allowed to record the conversation in secret. This is permitted under s 43 of the Invasion of Privacy Act 1971 (Qld) (IPA). This means that an employee that is having a private conversation with their Employer, such as a performance management meeting, is not required under the IPA to disclose or seek permission to record that private conversation.
Private face to face conversations are allowed to be secretly recorded under the IPA, does the same apply for telephone conversations? Telephone conversations are slightly different due to the Telecommunications (Interception) Act 1979 (Cth) (TIA).
The TIA prohibits the recording of a telephone conversation if a device that is physically attached to the telephone is used to record the conversation. Therefore if the telephone had an external bugging device attached, it is illegal to record the conversation in Queensland.
However, the IPA allows the recording of a telephone conversation by a device that is not attached to a telephone. For example, if a Smartphone is used this would be considered an external device and it would be legal to record the conversation under the IPA.
It is important to note that it is illegal to record a telephone or face to face conversation by a person who is not a party to the conversation. Further, a conversation which can reasonably be overhead is not regarded as a private conversation under s 43 of the IPA. This means the recording of conversations that can reasonably be overheard are not permitted by the IPA and are illegal to record.
If the secret recording of conversations are permitted under the IPA in the circumstances described above, does this mean that an Employer has no choice but to accept this conduct? The answer to this is a resounding no. Although it may be lawful in Queensland for private conversations to be recorded in secret by parties to the conversation, this does not mean you need to tolerate secret recordings in your business.
The secret taping of conversations although permitted by law in the above circumstances, in the very least, strains the trust required in any private conversation. Trust is essential in an employment relationship and if employees are secretly recording conversation you are within your rights to address this behaviour.
An Employer can lawfully and reasonably direct an employee to not secretly record conversations. Failure by an employee to follow a lawful and reasonable direction from an Employer may be a valid ground to undertake performance management. Prior to acting on performance management of an employee for secret recordings, it is recommended to obtain independent legal advice.
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