22 October 2015
Secret recordings? What! Me? At work?
Smart phones are wonderful things. There are apps for recording telephone conversations. Who hasn’t been tempted? Not so much for posterity, but to have a record of what somebody said, just in case you can use it against them some time in the future.
But is that legal? And does it make a difference if you do it at work? Or you record your boss?
Federal and State laws
The law is complex. First up there’s a bit of a turf war between the Federal Government and the States. The Federal Government controls telecommunications, which includes mobile phones. The States control listening devices, which can include mobile phones when used as a listening device.
The Federal Government and the States prohibit the secret recording of a conversation; the Federal Government when that involves the interception of a telephone communication, and the States when that involves a listening device. Where there is an overlap the Federal law will prevail.
But when does that telephone communication start and when does it stop? The Federal Telecommunications (Interception and Access) Act applies from the moment the voice enters the handset until the sound pops out at the other end.
This means that in the spaces between mouth and handset, and then handset and ear, the Telecommunications (Interception and Access) Act does not apply.
Some people think that this is when to make your secret recording using another device. That can be done pretty easily when you are working with a speaker phone but is more difficult if you are trying to hold a dictaphone between a mobile phone and your ear. Even so we sometimes see demonstrations on the television of how to do it, or we read about it in the newspaper. Are any laws broken? What is going on?
This is where State legislation applies. In NSW the Surveillance Devices Act 2007 prohibits the secret recording of a conversation by any listening device whether that be a mobile phone or not.
Is there a way out?
But there is an exception against that prohibition - when the recording is reasonably necessary for the protection of the lawful interests of the person doing the recording. That sounds like a pretty broad exception but that’s not the case. In Sepulveda v R  NSWCCA 379 the NSW Court of Criminal Appeal said that for the exception to apply the secret recording had to be not only ‘reasonable’, but also ‘necessary’, and always ‘lawful’. Whilst many things are lawful, fewer are necessary, and fewer still are reasonably necessary.
For example, instead of a secret recording why not just make notes, or send a confirming letter the next day. If you can do that why is it reasonably necessary to record the conversation, especially given you are breaching the other person’s expectation that you are not recording the call? The exemption is narrower than you might think.
What about the workplace?
And when we come to recording workplace conversations, it’s narrower still, but for another reason – even if it’s legal, it’s just bad form. Employees are often tempted to record that unsatisfactory performance review, or try and wrangle an admission out of a supervisor. It’s just too easy to turn on the voice memo function of your mobile phone and leave it running in your pocket.
The Fair Work Commission has had quite a lot to say about employees who behave in that manner. In short, an employer who dismissed an employee for secretly recording telephone conversations would be well justified in doing so.
In Thomas v Newland Food Company Pty Ltd  FWC 8220 the Commission reviewed the authorities, and here are just a few of the comments on employees secretly recording workplace conversations:
I consider such an act to be well outside the normal working environment and contrary to the well understood necessity for trust and fidelity in the relationship between employee and employer.
In ordinary business and social behaviour there is, in my understanding, a very strong expectation that there will not be a secret recording of a conversation but that any process of recording will be revealed, so as to give those recorded an opportunity to decide whether or not they will participate.
The ordinary conduct of personal business and working relationships in our community is predicated on the basis that if there is to be any record of a meeting it will be agreed in advance. Anything else is quite properly described as sneaky. Its very sneakiness makes it abhorrent to ordinary persons dealing with each other in a proper fashion.
Secretly recorded discussions are objectionable because one party is being deceptive and purposely misleading the other party.
... the fact that an act is lawful in the wider community sense, does not mean that the same act in the workplace would not constitute a valid reason for an employee’s dismissal.
So there you have it. Even if that secretly recorded conversation is done lawfully, doing so is enough to lose your job. Or at least that is the view of the Fair Work Commission.
Author: Mark Paul