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Covert Recording – Good Evidence?

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By MST Lawyers

Federal Court Justice Marshall has expressed “grave concerns” over the use of covert evidence-gathering techniques used by IR consultant Grace Collier in a bid to bolster an application lodged by the Fair Work Building Inspectorate (FWBI) against the AMWU.

Summary of issues

The recorded conversations arose from a dispute between the AMWU and City West Water culminating in a picket which the FWBI alleges amount to unlawful coercion under the Fair Work Act 2009 (Cth).

Ms Collier saw AMWU organiser Tony Mavromatis amongst the picketers and invited Mr Mavromatis and community spokesperson for the protestors to a meeting. Subsequent conversations between the parties, held face to face, were recorded by Ms Collier using a recording device concealed in her handbag, jacket and bra.

On 6 February 2013 Ms Collier secretly taped a telephone conversation with Mr Mavromatis in which she asked for the names of the workers at the heart of the dispute. Mr Mavromatis reportedly refused to offer names but guaranteed an end to the picket if the company decided to exclusively hire local workers.

Responding to questions raised by Justice Marshall, Counsel for the FWBI Justin Bourke SC:

  • submitted that the taping of the three face-to-face conversations was lawful under the Surveillance Devices Act 1999 (Vic), and that the transcription of them was likely to fall within the public interest and legal proceedings exceptions in section 11 of that Act.
  • conceded that, whilst the Inspectorate did not seek to tender the transcript of the Ms Collier’s recorded telephone conversation with Mr Mavromatis, its “preliminary view” was that the recording might have contravened the Telecommunications (Interception and Access) Act 1979 (Cth) (the TIA Act).

Amongst other things, the TIA Act prohibits a person from intercepting a communication passing over a telecommunications system. Under the TIA Act “interception” consists of listening to or recording, by any means, a communication in its passage over a telecommunications system without the knowledge of the person making the communication. Exceptions exist for law enforcement agencies and in other limited circumstances.

Justice Marshall said he had “grave concerns” about Collier’s evidence, and that elements of her conduct suggested she had attempted to set up Mr Mavromatis.

Director of the Fair Work Building Inspectorate v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union VID 77/2013.

Impact on Employers

Justice Marshall’s concern serves as a warning bell to all employers who are considering the use of secret recordings as evidence to advance employment/IR related claims including unfair dismissal and adverse action claims.

Despite having a legitimate case to be tried, Ms Collier’s evidence-gathering techniques raised doubts as to her motives and risked the admissibility of important evidence.

Employers should seek legal advice before engaging in covert recording of conversations and workplace conduct.

Proposed Changes to Fair Work Act

In other news, the Federal government has announced a number of further proposed changes to the Fair Work system, including changes to parental leave entitlements.

Key changes include:

  • increased consultation requirements in Awards where employers seek to change employees’ rosters.  Prior to effecting roster changes, employers will now be required to genuinely engage with employees, a process currently only invoked by “major changes” in the workplace.
  • a proposal to grant the Fair Work Commission (FWC) jurisdiction to hear workplace bullying claims. Initial responses from the FWC suggest that it currently lacks capacity to deal with such claims.
  • an increase in the period of concurrent parental leave for couples, from three to eight weeks.
  • allowing parents to choose when they take unpaid parental leave together.
  • ensuring pregnant women can transfer to a safe job where one is available, regardless of their length of service.
  • steps to ensure that women who take unpaid special maternity leave are not penalised by a reduction in their unpaid parental leave entitlements.

MST has extensive experience in assisting its clients to manage employment disputes and comply with the extensive requirements of the Fair Work Act 2009 (Cth). Please contact one of our Employment Law team for further information on these issues on +61 3 8540 0200.