Covert Recordings in Australian Workplaces: Legislation, Gaps and the Fair Work Commission’s Approach 

| June 11, 2026

Can I secretly record a workplace conversation?

Covert recordings in the workplace occupy an uneasy space in employment law.

The legal position is complicated because Australia does not have a uniform law regulating workplace recordings.

Instead, the answer depends on:

• the jurisdiction;
• the type of recording;
• whether the person recording was a party to the conversation;
• whether the recording was made by the employer or the employee; and
• the purpose for which the recording is later used.

Legislative Overview: Covert Recordings in Australian Workplaces

There is no single Commonwealth statute that comprehensively regulates covert workplace recordings.

The Privacy Act 1988 (Cth) may be relevant where personal information is collected, used or stored, but it does not operate as a complete workplace surveillance code. In the private sector, the employee records exemption may also limit the application of the Australian Privacy Principles once information forms part of an employee record.

Most of the legal regulation instead comes from state and territory surveillance legislation. These laws generally regulate:

• listening devices;
• optical surveillance devices;
• tracking devices; and
• data surveillance.

Audio recordings are usually the most legally sensitive because they may capture “private conversations”.

Video-only CCTV in a public or operational workplace area is generally easier to justify than audio recording, especially where employees have been notified and the surveillance is for safety, security or operational reasons.

Key Point

Even where a covert recording is technically lawful under a state surveillance statute, it may still amount to misconduct in an employment context.

The Fair Work Commission (Commission) has repeatedly held that covertly recording workplace conversations can be inconsistent with an employee’s duty of good faith and fidelity and may undermine the trust and confidence necessary for the employment relationship.

Workplace Surveillance Laws in NSW and the ACT

New South Wales and the Australian Capital Territory are the only jurisdictions with workplace-specific regimes.

Generally, an employer must give written notice before commencing surveillance. The notice must identify:

• the kind of surveillance;
• how it will be carried out;
• when it will start;
• whether it will be continuous or intermittent; and
• whether it will be for a specified period or ongoing.

Camera surveillance also requires visible signage. Surveillance in prohibited private areas, such as toilets, change rooms and showers, is not permitted. Penalties apply and are typically indicated as 50 penalty units. Any surveillance that is not authorised is deemed to be covert surveillance.

In NSW, a penalty unit is $110, meaning a 50-penalty-unit offence may attract a penalty of up to $5,500.

Covert surveillance is treated as exceptional. If an employer wishes to conduct covert surveillance, this must be authorised by a Magistrate in cases where unlawful activity is suspected.

Jurisdictions Without Dedicated Workplace Surveillance Legislation

Most Australian jurisdictions do not have a dedicated workplace surveillance statute equivalent to NSW or the ACT.

This includes:

• Queensland;
• South Australia;
• Western Australia;
• Tasmania;
• the Northern Territory; and
• in practical terms, Victoria.

In these jurisdictions, the analysis usually turns on:

• general surveillance-device legislation;
• privacy principles;
• employment contracts;
• workplace policies; and
• ordinary unfair dismissal principles.

The absence of a dedicated workplace surveillance statute does not mean covert recordings are risk-free. It simply means the regulation is less centralised.

Queensland Example

Queensland does not have a Workplace Surveillance Act.

The key legislation is the Invasion of Privacy Act 1971 (Qld), which regulates listening devices and private conversations.

In broad terms, a person who is not a party to a private conversation must not use a listening device to overhear, record, monitor or listen to that conversation, subject to statutory exceptions.

For employers, this makes audio surveillance particularly risky.

A CCTV system that records only video may raise one set of issues. A CCTV system that also records workplace conversations may raise a much more serious set of issues.

Case Law: Covert Recordings by Employees and Employers

The Commission’s approach to covert recordings by employees is relatively consistent.

The Commission may admit a covert recording into evidence where it is probative and assists in determining what occurred, but it generally disapproves of the conduct.

A recording can therefore be both:

• useful evidence; and
• misconduct.

Schwenke v Silcar Pty Ltd

The leading authority is Schwenke v Silcar Pty Ltd t/as Silcar Energy Solutions.¹

In this 2013 case, the employee secretly recorded a performance discussion with his supervisor.

The Full Bench upheld the conclusion that the secret recording was contrary to the employee’s duty of good faith or fidelity and undermined the mutual trust and confidence required in the employment relationship.

Altham-Wooding v PKDK Adventures Pty Ltd

In Altham-Wooding v PKDK Adventures Pty Ltd,² the Commission found that an employee’s covert recording of a workplace conversation created a valid reason for dismissal.

Notably, the recording was discovered after the employment relationship had ended, during the Commission proceedings.

Thomas v Newland Food Company Pty Ltd

In Thomas v Newland Food Company Pty Ltd,³ a Queensland employee had secretly recorded workplace conversations.

The dismissal was nevertheless found to be unfair, but reinstatement was refused because the recordings had damaged the trust necessary for an ongoing employment relationship.

Deputy President Sams observed:

“There could hardly be an act which strikes at the heart of the employment relationship, such as to shatter any chance of re-establishing the trust and confidence necessary to maintain that relationship, than the secret recording by an employee of conversations.”

Stoddard v Crushing Services International Pty Ltd

In Stoddard v Crushing Services International Pty Ltd,⁴ the employee succeeded in an unfair dismissal claim despite having made a covert recording connected with safety concerns.

The Commission found the dismissal harsh, unjust and unreasonable, but reduced compensation by 20% because of the employee’s misconduct in recording without consent.

McGlashan v MSS Security Pty Ltd

Employer recordings are treated somewhat differently where the employer can point to:

• notice;
• policy;
• contract; or
• legitimate operational reasons.

In McGlashan v MSS Security Pty Ltd,⁵ internal telephone recordings were admitted in unfair dismissal proceedings.

It was relevant that MSS had both:

• a policy governing recordings; and
• an employment contract clause permitting telephone recordings.

Because MSS had this authority, it was able to utilise those recordings and use the relevant recordings as a basis for terminating the contract.

Key Lessons for Employers and Employees

The Commission’s view can be summarised simply: Covert recordings are not automatically inadmissible, but they are rarely viewed favourably.

For employees, secretly recording a meeting may appear protective in the moment, but it can:

• undermine trust and confidence;
• provide a valid reason for dismissal;
• reduce compensation; or
• make reinstatement inappropriate.

For employers, surveillance is safest when it is:

• overt;
• notified;
• policy-based;
• proportionate; and
• limited to a legitimate business purpose.

Workplace recording is not simply a question of whether a device can capture evidence. It is ultimately a question of legality, transparency, proportionality and trust.

In NSW and the ACT, those principles are reflected in dedicated workplace surveillance legislation.

In Queensland and other jurisdictions without equivalent legislation, the same issues arise through surveillance-device laws, privacy principles, workplace policies and the Commission’s assessment of fairness.

Managing Workplace Recording and Surveillance Risks

Covert recordings often arise in the context of workplace disputes, performance management processes and employee exits. Ensuring your policies, procedures and management practices are clear and compliant can help minimise legal and employee relations risks.

IRiQ Law can assist with developing and reviewing workplace recording and surveillance policies, guiding employers through performance management processes, and supporting the lawful and effective termination of employment where issues arise.

For further insights, watch our latest IRiQ Talking IR episode, where we discuss workplace recordings, surveillance obligations and the practical considerations for employers.

If you have questions about your workplace practices or policies, contact us to learn how we can help. 

Footnote

¹ [2013] FWCFB 9842

² [2024] FWC 2753

³ [2013] FWC 8220

⁴ [2025] FWC 2673

⁵ [2023] FWCFB 88