Record at Your Own Risk: FWC’s Stance on Covert Recordings in the Workplace

There have been many occasions where employees have secretly recorded workplace conversations, meetings, or counselling sessions, believing it necessary to protect their lawful interests regarding the termination of their employment. However, even though it may seem reasonable for employees to record private conversations to protect their interests, safeguard a third party, or gather evidence for legal proceedings, employers should take steps to guard against this type of behaviour.

Whilst the laws vary from state to state regarding the use of surveillance devices to covertly record private conversations, is illegal without consent in most states. The exceptions to this are Queensland, Victoria and the Northern Territory which permit the recording of a conversation without consent provided the party recording is an active participant in the conversation.

FWC has up to very recently consistently shown strong disapproval of covert recordings as it destroys the necessary trust and confidence in the employment relationship (see Full Bench decision in Schwenke v Silcar Pty Ltd t/a Silcar Energy Solutions [2013] FWCFB 9842 which has been regularly followed).

The following cases provide some competing but otherwise helpful guidance in this contentious area of the law.

In Harry Holt v TEEG Australia Pty Ltd [2025] FWC 1531, FWC found it is unlikely to be reasonably necessary for an employee to secretly record a conversation when they have readily available options to keep a record of the conversation in other ways. This includes taking notes during a meeting, having a support person take the notes or making contemporaneous notes after a meeting. Interestingly, FWC said that if the recording had been for the employee’s personal use to aid his recollection of the meeting, it would have been reasonable, but the recording itself was not admissible.

However, in the case of Lipari v Transit Systems West Services Pty Ltd [2025] FWC 1430, FWC admitted a covert recording solely on the basis that there were significant differences between the witness accounts and the use of this evidence was in the interests of justice.

Our Take:

We consider FWC has ‘left the door ajar’ for covert recordings to be used particularly where the evidence is so ‘far apart’ and genuine issues of credibility are at stake. So much of today’s psychosocial claims are based not just what was said but how it was said.

Accordingly, employers should always conduct themselves in meetings as if they are being recorded.

We don’t think that this is ‘too much of stretch’ in a modern workplace where respectful communication is the ‘entry point’ – not some high standard that is turned on and off at a personal whim. In any event workplaces have become used to applying the same rules with emails, social media and text messages (ie if you wouldn’t be happy in having the communication broadcast in a Newspaper, TV or FWC decision – don’t write/say it!)

Action Items:

• Update Workplace Policies – employers should consider updating or implementing clear policies that set the expectation that recordings of conversations are not permitted without consent.

• Consider relevant legislation – as this varies from state to state, it is important to be aware of what the rules, limits, and exceptions are for employees to record conversations.

• Promote transparent communication practices – by creating a culture of taking notes and providing minutes or summaries of meetings, it can reduce the need for employees to feel as though they need to record conversations.

• Train all employees in effective communication – people have different communication styles, preferences and tolerances. Effective communication is about adjusting behaviours to ensure the message is accurate – not whose personality is the strongest.

Edge Legal

Relationships. Respect. Results