Is recording a conversation legal?

This could protect your rights in the course of your duty or for the protection
of your lawful interests which contains dealings with worksafe, your legal advisors
and the insurers and their cronies.

If you are defending a workcover claim then you would be within your rights
to record certain conversations to protect your lawful interests!

That will stop them lying about your claim details etc.

Prohibition on use of a listening device

(1) A person shall not—

(a) use any listening device to overhear record
monitor or listen to any private conversation
to which he is not a party; or
(b) except in the course of any legal proceedings
or in accordance with the provisions of subsection

(2) communicate or publish the
substance or meaning of any private
conversation overheard recorded monitored
or listened to by the use of any listening
device, whether he was a party thereto or
not—without the consent express or implied of the
parties to the private conversation.

Penalty:
(a) if the person is a corporation—500 penalty
units;
(b) in any other case—40 penalty units or
imprisonment for a term of 2 years or both.

(2) Notwithstanding anything in paragraph (b) of subsection

(1) it is not an offence for a person who
was a party to a private conversation to
communicate or publish the substance or meaning
of the private conversation which he has recorded
by means of a listening device if the
communication or publication is no more than is
reasonably necessary in the public interest or in
the course of his duty or for the protection of his
lawful interests.( s. 4)

Workplace surveillance, managing ill and injured workers and preventing bullying - significant issues for employers in 2007

New legislation imposing obligations on employers (for example, in relation to
workplace surveillance) will increase the compliance costs for employers and
the risks of non-compliance. More broadly, workplace surveillance laws also
need to be considered in the context of existing occupational health and safety
legal regulation, the ability of employers to manage ill and injured workers and
the obligation to prevent bullying.

The potential costs in these areas are great. In 2006 an employer was ordered
to pay a total of $1.9 million in damages in respect of bullying in the workplace.
In this edition of LegalTalk we explain the upcoming changes to workplace
surveillance laws and the implications arising from these changes and other
legal regulation in relation to occupational health and safety (OHS) and bullying.
Workplace surveillance - the thin edge of the (workplace privacy) wedge
On 1 July 2007, new laws will commence which regulate surveillance in
Victorian workplaces. The introduction of these laws is a first step towards
broader workplace privacy laws in Victoria. Similar (but more extensive)
laws already exist in New South Wales (NSW). However, employers in all
States and Territories can expect that workplace privacy laws will increase
in the nature and scope of their regulation in the near future. Workplace
privacy is currently a matter being considered by the inter-governmental
Standing Committee of Attorneys-General (SCAG).

The Victorian reforms mean that employers in Victoria must not "install,
use or maintain” an optical surveillance or listening device in a toilet,
washroom, change room or lactation room in the workplace. The laws apply
to all employers. The term "employer” is defined broadly. It includes
corporations, unincorporated bodies and partnerships. The laws also apply
(beyond traditional employees) to volunteers and contractors. Without a
warrant or emergency authorisation, a breach of the Victorian laws can
lead to a fine of up to $128,916.

The current laws in NSW extend beyond the Victorian ban on the use of
optical surveillance or listening device in toilets etc. In NSW the prohibitions
apply to all forms of camera surveillance, computer surveillance and
tracking surveillance. Further, the NSW laws apply in the workplace of the
employer and "any other place while performing work for the employer”.
This could include a company vehicle and home-based work.

In NSW all surveillance is banned unless:
a detailed notice of the intention to engage in surveillance has been provided
to the employee in advance; and
the employer complies with additional requirements prescribed in relation to:
camera surveillance - which requires ensuring the camera is clearly visible
and signs have been erected notifying of the surveillance;
computer surveillance - which requires ensuring that the employer has a
workplace policy which has been provided to employees; and
tracking surveillance - which requires ensuring that the vehicle has
appropriate notification.Additionally in NSW, there are restrictions on
blocking emails and internet access in the workplace (particularly in relation
to emails from the websites of unions).

Outside the current legislated response in NSW and Victoria (which deal with
the workplace privacy issues associated with monitoring employees), additional
privacy issues arise for employers in relation to physical and psychological
testing of workers, drug and alcohol testing, searching workers and their
belongings and the handling of workers’ personal information.
The Victorian Law Reform Commission (VLRC) has identified that "significant
gaps exist in workers’ privacy protection” and suggested comprehensive
legislation to protect employees. It is these further recommendations of the
VLRC which are being considered by the Attorneys-General in each State
and Territory.

It is in this environment of heightened concern about and interest in
workplace privacy that employers are (or well advised to be) implementing
workplace privacy policies (or reviewing existing ones). As an alternative,
employers are using federal workplace agreements (either collective or
Australian Workplace Agreement (AWAs)) to include clauses on the process
of surveillance (including the use of closed circuit television (CCTV)),
monitoring (including the use of Global Positioning Systems (GPS)) and testing.
A recent case in the Australian Industrial Relations Commission (Commission)
has highlighted the usefulness of CCTV in the defence of an unfair dismissal.
In this case, a national retailer terminated the employment of an employee
for serious and wilful misconduct when, despite previous warnings, the
employee failed to stop at the end of an aisle of storage racks while driving a
"pallet mover”. The employee was well aware of the requirement that he had
to stop at a red line marked on the pavement at a right of way. A dispute arose
about whether the employee had stopped as required. That fact was crucial to
whether there was a valid reason for terminating his employment.

The employer sought to rely upon CCTV evidence. The Commission found they
were entitled to do so. It distinguished between "the use of the CCTV system
as a utility for managing work performance of employees and its use for loss
prevention and security purposes.” Further, the Commission went on to hold
that the use of CCTV "as a passive record of events” was permissible.

Consequently, on the balance of probabilities, the Commission found that
the employee had failed to stop and there was a valid reason for the
termination of his employment.

Managing ill and injured workers - Australian Industrial Relations
Commission expands the definition of "temporary illness”
Is an employee’s absence from work for six, nine or twelve months on
workers’ compensation considered "temporary absence” under the
Workplace Relations Act Regulations 2006 (Regs)? A decision of the
Federal Magistrates Court of Australia (FMC) in January this year held
that it is, thus significantly restricting the ability of employers to
respond to long term ill or injured workers.

In this case, the employee, a child care worker, suffered a workplace injury.
After a long period of illness (more than three months in a twelve month
period) and the expiration of her employer-paid sick leave, the employer
terminated the employee’s employment. The employee alleged that her
employment had been terminated unlawfully - because of a "temporary
absence from work because of illness or injury”.

"Temporary absence” is defined in the Regs. It includes a period of time
when an employee "is on paid sick leave for the duration of the absence”.
Therefore, the question for the FMC was whether "paid sick leave” included:
workers’ compensation payments (paid by an insurer); or
only the ordinary concept of sick leave (paid by the employer).After
considering a number of international conventions, the FMC decided
workers’ compensation payments were included.

Although the case above limits the ability of employers to respond
when a long term illness or injury arises at work, it does not apply when
the injury or illness is not work related. In non-work related injury or
illness cases, an employer can take steps to terminate the employee’s
employment. However, they have to be careful to ensure that the act of
termination is not unlawful. Therefore a careful, well considered process
is required to limit the possibility that a disability discrimination or
unlawful termination proceeding is commenced.

At the heart of the inquiry to be undertaken by the employer is whether the
employee can (or is likely to be able to) perform the "inherent requirements”
of their position. Sub-questions include (but are not limited to):
What position is relevant to the inquiry (is it the pre-injury job or some
other return-to-work position)?
What are to be considered the "inherent” requirements of the position?
What is the difference between an "inability to perform” and "difficulty in
performing” inherent requirements?
What accommodations or assistance is an employer required to make?
Another question often asked is whether an employee can be directed to
undergo a medical examination and be further required to release that
information to the employer. A 2006 decision of the Federal Court of
Australia (FCA) suggests that, in appropriate circumstances, such a
direction is lawful.
Preventing bullying - because it’s the right thing to do and otherwise
costly

The December edition of LegalTalk highlighted a recent case (under appeal)
where an employer’s policy and procedure manual gave an employee
a right to bring a claim in the FCA for contractual damages (of $515,000)
arising out of the failure of the employer to follow its grievance policy.
Last year a decision of the NSW Supreme Court (NSW SC) also saw a
significant award of damages ($1.9 million) for a breach of an employee’s
contract (and the employer’s policy) - this time in relation to bullying.

In this case the employee, a security guard, was born in Fiji. He claimed
that the person who was (for all intents and purposes) his supervisor bullied
him through race based insults, sexual harassment, threats and physical
abuse. At trial the supervisor’s actual employer conceded that the supervisor’s
behaviour "was indefensible and outrageous”. However, in fairness to the
supervisor, it should be noted he was not called to give evidence and did not
have an opportunity to defend himself against the allegations made by the
security guard.

The conduct engaged in by the supervisor was found to have resulted "in
injury of a psychological kind, giving rise to perceptible psychiatric illness
(major depression).” One of the issues for the NSW SC was whether the
bullying (which was "deliberate and intended to demean, offend and injure”
the security guard) constituted a breach of his contract of employment and,
if so, what damages flowed from that breach.

The NSW SC found there was a breach. It held that the employer breached
the contractual obligation to provide a safe place of work. It further found
that "the discrimination and harassment policy published by the [employer]
also constituted … a condition of the employment contract.” In the absence
of the policy, the NSW SC said it would have found that the supervisor’s
conduct breached "an implicit term that employees are not to be place in fear
of insult or physical harm…”

As a result it was held that the security guard was entitled to damages for
disappointment and distress (not usually recoverable for breach of an
employment contract). Consequently, this is another example of the importance
of employers not only having policies to deal with issues such as bullying,
but ensuring compliance with them.

Victorian Workplace Surveillance Laws

By Philippa Hore and Lucinenne Mummé

Victorian employers will now generally commit a criminal offence if they
conduct surveillance of employees in private areas of the workplace such as
toilets and change rooms.

This legislation (Surveillance Devices (Workplace Privacy) Act 2006 (Vic)
came into effect on 1st July 2007.

The legislation implemented the key recommendation of the Victorian Law
Reform Commission report on workplace privacy.

This article sets out who the legislation applies to (a definition of "employer"
and "worker"). The authors also explain what is prohibited surveillance, the
exceptions and what is unauthorised communication of legally obtained
surveillance material.

(Employment Law Bulletin Vol. 13, no. 5: from LexisNexis Butterworths)

New workplace surveillance rules in Victoria 06 July 2007

Knowledge is Power, Know your rights

On 1 July 2007, the Surveillance Devices (Workplace Privacy) Act 2006 (Vic) came into effect, amending the existing Surveillance Devices Act 1999 (Vic) (Act). The new regime was prompted by the Victorian Law Reform Commission’s (VLRC) 2005 inquiry into workplace privacy. In its final report, the VLRC concluded that workers’ privacy was not adequately protected by existing legislation and recommended a prohibition on surveillance of private areas in the workplace.
How the new rules affect employers

The amendments mean that employers cannot use listening devices or optical surveillance devices (such as video cameras) for surveillance of workers in workplace toilets, washrooms, change rooms or lactation rooms. In addition, employers are prohibited from communicating or publishing material obtained through surveillance. These prohibitions apply equally to all public and private sector Victorian employers, regardless of whether they are partnerships, businesses or companies. Contravention of either of these prohibitions may result in imprisonment of up to two years or fines of up to $132,144.

The prohibitions are not absolute, allowing surveillance in three limited circumstances:
where a warrant or emergency authorisation has been granted to permit surveillance
in accordance with a Commonwealth law (eg a law relating to national security)
where required as a condition of a liquor licence (eg in a licensed venue)
In these three circumstances, information obtained from surveillance may only be used in accordance with the relevant warrant, Commonwealth law or licence requirement.
Continuation of existing surveillance prohibitions

The amendments insert new prohibitions into the Act, but otherwise keep existing requirements intact. The Act continues to regulate the use of listening devices, optical surveillance devices and tracking devices (such as GPS tracking devices used on vehicles). These existing requirements apply generally—not just in the employment context—but it was noted by the VLRC that the exceptions for consent and non-private activities meant that often workers could not rely on these requirements to protect them from workplace surveillance.
In addition to the requirements of the Act, any personal information collected through surveillance must also be handled in accordance with information privacy laws such as the Information Privacy Act 2000 (Vic) (for Victorian public sector agencies) and the National Privacy Principles under the Privacy Act 1988 (Cth) (Privacy Act) (for private sector organisations).

Comparison with NSW legislation
The amendments to the Act come two years after the Workplace Surveillance Act 2005 (NSW) (NSW Act) was passed in New South Wales, which we wrote about here. However, the Victorian amendments are not a replica of the NSW Act, and the legislative regimes in each state continue to differ in many ways.

While the NSW Act also prohibits surveillance of private areas such as workplace bathrooms and change rooms, it more broadly regulates camera surveillance, computer surveillance and tracking surveillance. The NSW Act does not regulate the use of listening devices as this is left to the separate Listening Devices Act 1984 (NSW).

Under the NSW Act, surveillance is prohibited unless employees are given notice of the intended surveillance 14 days prior, or before they commence work with the employer. Alternatively, surveillance is allowed where the employer has obtained covert surveillance authority from a Magistrate in order to determine whether the employee is engaging in unlawful activity at work.
In Victoria, the Act does not require notification for optical surveillance of non-‘private activities’, but otherwise requires consent. Either way this differs from the NSW Act. Consent, rather than notification, is also required in Victoria for tracking surveillance. Computer surveillance is not regulated at all in Victoria under the Act.

Possibilities for further reform
Victoria’s Attorney-General Rob Hulls has recognised that the new amendments are just the first stage in developing a more comprehensive regime to protect workplace privacy. This is evident in the fact that the Act only implemented one of the many recommendations made by the VLRC in its final report.

Beyond recommending a prohibition on surveillance of private workplace areas, the VLRC also recommended the introduction of a Workplace Privacy Act containing provisions including:
power to establish a Workplace Privacy Regulator
a general obligation on employers not to unreasonably breach the privacy of workers, while they are working restrictions on the ability of the employer to affect the privacy of workers outside of work, and a prohibition on employers conducting genetic testing of employees, unless permitted by the regulator.

Meanwhile, voices expressing frustration with the inconsistency of privacy laws between Australian jurisdictions—surveillance and workplace privacy being good examples—are finding their audience. The Standing Committee of Attorneys-General is considering the VLRC’s proposed Workplace Privacy Act as the basis of a consistent national scheme.

The issue of national consistency was also noted by Federal Privacy Commissioner Karen Curtis in her review of the private sector provisions of the Privacy Act in 2005. Her review has prompted an inquiry into privacy by the Australian Law Reform Commission (ALRC) which is even reviewing the possibility of changing the Australian Constitution to enact national privacy laws. The ALRC’s final report is due in March 2008.

For further information, please visit the VLRC website and the ALRC website.
This article was written by Kaman Tsoi, Senior Associate, and Emily Sykes, Articled Clerk of the Melbourne Corporate group