Oftentimes a business might like to record phone calls in the workplace, either between employees or between employees and customers, for things such as training and quality assurance purposes. However, Australia has a complex framework governing if and when this can be done. Before a business records any phone calls in the workplace, it must first understand both the federal and State-based laws that apply.
In this article, we take a look at the overarching federal legislation, the State-based legislation in NSW, Victoria and Queensland, and steps your business should consider taking before it begins recording phone calls in the workplace.
Overarching Federal Framework
The relevant overarching federal legislation includes the Telecommunications (Interception and Access) Act 1979 (Cth) (Telecommunications Act) and the Privacy Act 1988 (Cth) (Privacy Act) which govern workplace surveillance and privacy across Australia. This legislation sets the backdrop against which all State-based surveillance legislation sits.
Telecommunications Act
The Telecommunications Act makes it an offence to intercept (or authorise or permit another person to intercept) a “communication passing over a telecommunications system”1 Interception of a “communication passing over a telecommunications system” includes listening to or recording, by any means, that communication without the knowledge of the person making the communication.2 This includes listening to or recording phone calls.
Relevantly, this means that it would be unlawful for a business to record its employees phone conversations (even for training purposes) without their knowledge. A simple way to overcome this issue would be for the business to inform employees (and to make sure employees continue to be informed) that all phone calls are recorded.
Privacy Act
The Privacy Act governs how organisations handle personal information and is the legislative instrument establishing the Australian Privacy Principles (APP). The APP apply to private sector organisations with an annual turnover of $3 million or more. Depending on what a business does or intends to do with the recorded phone calls, and depending on the information that is recorded, the APP may apply.
Personal information held by an employer, relating to someone’s current (or former) employment, isn’t covered by the APP but only when used by the employer directly in relation to their employment. Such information includes:
- the employee’s personal and emergency contact details
- information about terms and conditions of employment
- wage or salary details
- leave balances
- records of work hours
- records of engagement, resignation or termination of employment
- information about training, performance and conduct
- taxation, banking or superannuation details
- union, professional or trade association membership information.
However, if an employee discusses personal information outside of these matters on a phone call that is recorded by a business, in particular, if they discuss “sensitive information”, then the APP will have implications on how that business deals with that recording.
Sensitive information broadly includes,
- information or an opinion (that is also personal information) about an individual’s:
- racial or ethnic origin,
- political opinions,
- membership of a political association,
- religious beliefs or affiliations,
- philosophical beliefs,
- membership of a professional or trade association,
- membership of a trade union,
- sexual orientation or practices, or
- criminal record;
- health information about an individual;
- genetic information (that is not otherwise health information);
- biometric information that is to be used for the purpose of automated biometric verification or biometric identification; or
- biometric templates.
While it might not be the intention of a business to record any such information, if an employee inadvertently discusses this type of information on a workplace phone call that happens to be recorded, then the APP are likely to apply to that recording. A business will need to bear this in mind when handling the recordings and have in place appropriate protocols for dealing with the issue. This might include, for example, immediately destroying recordings where sensitive information is inadvertently recorded, or seeking the relevant employee’s express consent before the business does anything with the recording (such as share it for training purposes).
State-based Framework
In addition to the Federal legislation, there is also State-based legislation that has implications on the recording of phone calls in the workplace. Each State and Territory has unique regulations dealing with the issue however in summary, they generally all require some form of consent from the participants in the conversation for recording to occur.
In NSW, the Surveillance Devices Act 2007 (NSW) makes it an offence to knowingly install a listening device and to record a private conversation without consent from the participating parties. Similarly, in Victoria, the Surveillance Devices Act 1999 (Vic) makes it an offence to knowingly install, use or maintain a listening device to record a private conversation to which the person is not a party without the express or implied consent of each party to the conversation.
In Queensland, a party to a conversation can lawfully record that conversation without the other party’s knowledge or consent. There are however restrictions on how that recording can be used. In the context of a business recording employee to employee or employee to customer phone calls, the Invasion of Privacy Act 1971 (Qld) makes this an offence in the absence of the consent of the parties to the conversation.
Steps a business should take if it wants to record phone calls
Given this complex regulatory framework, if a business wishes to record phone calls in the workplace (whether that be employee to employee, or employee to customer), it should consider doing the following:
- Developing a phone recording policy regarding the recording and retention of phone calls in the workplace, including what the business will do if sensitive information is inadvertently recorded. This policy should be kept somewhere that is easily accessible to employees;
- Provide notice to all employees about the recording of phone calls, the purpose for which the recordings will be used and provide them with a copy of the phone recording policy and a point of contact in the event they have any questions or concerns;
- When a new employee commences, the business should ensure that the new employee is promptly informed about phone calls being recorded and the business’ policy regarding the same;
- The business should consider adding in a clause to its employment contracts to effect that the employee acknowledges and consents to all phone calls on work devices being recorded and retained by the business for training and quality assurance purposes;
- If phone calls with external parties (such as customers) are going to be recorded, the business must obtain the other party’s consent before it records the call. This can either be done with an automated message at the start of the call or by an employee representative on the call asking for that consent, however either way, the business should have in place a method for recording that consent. If the other party does not consent to the call being recorded, then recording must not occur.
What if an employee doesn’t want their work-related phone calls to be recorded?
The recording of internal phone calls (employee to employee) for training and quality assurance purposes is likely to be a reasonable and lawful direction. Therefore, if an employee refuses to allow recording to occur, it might be grounds for disciplinary action. This should be considered on a case-by-case basis.
However, importantly, in the unique situation where a recording involves sensitive information (as that term is defined in the Privacy Act) and an employee does not provide consent for that recording to be used by the business, then the employer should not discipline the employee for their refusal to provide consent. This scenario might arise where, for example, an employee on the phone call discloses their racial or ethnic origin – this is considered “sensitive information” for the purposes of the Privacy Act. In this particular situation, recent decisions have established that it will likely be unreasonable for an employer to discipline an employee for not providing consent to its use of an employee’s sensitive information.
Summary
There are many things to consider before a business starts recording phone calls in the workplace and there may be serious consequences if the correct procedures are not followed. If your business is considering recording workplace phone calls, it is recommended that you first seek legal advice.
1 s7, Telecommunications Act.
2 s6, Telecommunications Act.
