[2014] FWC 2945

FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.739—Dispute resolution

Toll North Pty Limited; Toll Transport Pty Limited
v
Transport Workers’ Union of Australia
(C2013/6851)

COMMISSIONER GREGORY

MELBOURNE, 22 JULY 2014

Alleged dispute concerning Toll Values and Compliance with Obligations.

Introduction

[1] The Applicants in this matter, Toll North Pty Ltd and Toll Transport Pty Ltd, (“Toll”) are both wholly owned subsidiaries of Toll Holdings Ltd. They each operate different transport businesses through various trading divisions, including bulk liquid cartage and linehaul road transport services on major freight routes throughout Australia.

[2] Toll has been gradually installing camera systems into its vehicles during the past three years. The system is known as DriveCam and involves the installation of both outward facing and driver facing cameras. It includes audio recording in the cabin as well. Toll submits the installation of this system is an important part of its commitment to “the highest level of safety in its operations”. 1 It also points to the Toll Group – TWU Enterprise Agreement 2013 – 20172 that covers the parties and clause 32, in particular. It states:

“32. Compliance with Obligations

[3] Toll now wants to begin installing the DriveCam system into vehicles in its fleet in Victoria.

[4] The Transport Workers’ Union (“the TWU”) and its members in Victoria are not opposed to the installation of forward facing cameras in vehicles. Union representatives were originally involved in discussions about the introduction of these cameras and accept they can provide a means to get a better understanding about incidents that occur. However, the Union and its members in Victoria are opposed to the installation of the driver facing cameras and the associated audio recordings. They question the safety benefits of the system. They also have concerns about the potential for drivers to be distracted by the existence and operation of the in-cabin camera and audio recording. They also believe they are an unacceptable intrusion into the privacy of the drivers in their workplace. In their view driver facing cameras should not be installed until the consent of the Union and the drivers has been obtained.

[5] Attempts have been made to resolve the issue over an extended period of time. However, to date those negotiations have not been able to reach an agreed outcome. Toll now seeks orders from the Commission to enable the DriveCam system to be installed in its vehicles.

The Issue to be Decided

[6] Is Toll able, in all the circumstances, to proceed to install both outward facing and driver facing cameras in its heavy vehicle fleet in Victoria?

[7] Conversely, is there anything in the Agreement that covers the parties, or anything else, that acts to prevent the Toll from installing these cameras in its vehicles?

The Evidence and Submissions

[8] Toll submits that it is committed to ensuring the highest level of safety in its operations and continuous improvement is an important part of this commitment. It submits that clause 16 of the Agreement requires the parties treat each other and act in accordance with the values Toll aspires to. It also highlights, in particular, sub clause 32(b)(i) of the Agreement which requires the employees and the TWU to take all reasonable steps to assist Toll meet its obligations under workplace health and safety and the chain of responsibility legislation.

[9] In its submission the DriveCam system is a proven and effective tool in improving driver behaviour and performance, and the introduction of the system should be supported by the parties in a manner consistent with their obligations under the Agreement. It also submits the effectiveness of the system would be significantly diminished if limited to the installation of outward facing cameras. It also submits the installation of the complete system has been supported by branches of the Union in other States.

[10] Toll also submits that there are a number of features of the DriveCam system designed to minimise any intrusion upon the privacy of the drivers. It also points to the Guidelines on Use of Vehicle Camera Footage it has developed and introduced, which are intended to ensure employees’ rights are protected. In its view the system provides a number of benefits for employees by enabling inappropriate and risky behaviour to be identified, and driver coaching and training to be provided in response. It also submits the system is not intended to be used in a punitive way, or to punish employees for poor work performance.

[11] It submits the installation and use of the DriveCam system does not contravene the Victorian Surveillance Devices Act 1999, and the Union has not been able to demonstrate in any way that this is the case. It also submits that ultimately the Commission is able to make an order that overrides State based legislation.

[12] In its submission the Union has not been able to make out a legitimate case to oppose the introduction of the DriveCam system into Toll’s vehicles in Victoria. It also points to the fact that in recent times new employees taken on by Toll have received letters of appointment, which they have been required to sign, indicating they can be subject to workplace monitoring and surveillance, including video surveillance, while at work.

[13] Mr John King is the National Linehaul Manager with Toll North Pty Ltd (“Toll NQX”) and is responsible for its linehaul services. He has been employed by Toll since 1980 and said that as a part of its commitment to safety Toll has, over time, explored and adopted new and emerging technologies to help deliver higher safety standards.

[14] He said Toll NQX and its employees in Queensland agreed to install the DriveCam system in vehicles on a trial basis after a series of discussions that commenced in 2010. It was subsequently decided to install the cameras in the entire fleet in Queensland, and the DriveCam system is now installed in more than 130 of its trucks. He also said that outside of Victoria there has been little, if any, opposition from employees or the Union to the installation of both the forward facing and the driver facing cameras.

[15] Mr King said the cameras are primarily activated by G–force events initiated by rough roads, sharp cornering or harsh braking. Additional events can also be recorded by the driver activating a button fitted in the vehicle. All events, except those activated by the driver, or as a result of a collision, are initially viewed by analysts employed by DriveCam. They are then uploaded onto the system and available to be viewed by relevant managers at Toll. However, in order to manage the amount of data, and ensure the focus is on appropriate behaviours, Toll NQX has an agreement with DriveCam to highlight events involving a collision, or a driver not acting in accordance with accepted practices. He said around 150 such events are brought to Toll’s attention each month under this arrangement.

[16] All of these events are viewed by relevant managers and recommendations made to the driver’s supervisor about what should occur in response. Mr King said approximately half of the events warrant further action being taken, and in most cases this involves a meeting with the driver to review the event and provide any necessary coaching or training. The overall objective is to improve safety through discussion and counselling. However, he acknowledged that where a driver is found to have persistently breached requirements, such as not wearing a seat belt, he/she may be subject to disciplinary action. However, he was not aware of any driver having been dismissed from employment solely as a result of footage provided by the DriveCam system.

[17] Mr King said after two and a half years of using the system Toll believed it delivered significant benefits in improving heavy vehicle safety. He also said the cameras had often acted to exonerate a driver in incidents involving another vehicle. He said most drivers responded positively to the installation of the system and acknowledged the need to identify and stamp out unsafe practices. He also said that since the system had been introduced there had been a “vast improvement in driver behaviour in relation to wearing seatbelts, using hand-held phones while driving, smoking in the trucks and tailgating.” 4

[18] Mr King also took the Commission through some examples of actual footage obtained from the system. These included footage from the outward facing camera, as well as footage from the camera facing into the cabin. It included examples of behaviour being exhibited by drivers that are considered to be inappropriate and a potential distraction. However, it also provided some significant examples of the skill and quick thinking of drivers, enabling them to avoid what would otherwise have been the disastrous consequences of the seemingly unlawful and negligent actions of other road users. (The TWU had not been provided with the opportunity of viewing this footage prior to it being presented in evidence to the Commission. It was accordingly given the opportunity to provide further submissions about this evidence at a later point, if it wished. It subsequently elected not to do so.)

[19] Mr King also stated that in his view the effectiveness of the system would be “fundamentally undermined if the driver facing cameras were not installed.” 5 He said the inward facing cameras have been particularly significant in highlighting the dangers of using mobile phones and eating and/or drinking while driving. They had also highlighted the poor layout and design of some vehicle cabins and resulted in discussions with vehicle suppliers about safer and different cabin layouts.

[20] Mr Darren Karslake is employed by Toll Transport Pty Ltd as Operations Lead, Business Development in its Toll Liquids business and his responsibilities include developing and implementing business improvement initiatives. He said Toll Liquids has introduced cameras into almost half its total fleet of 148 trucks and planned to continue to introduce them into other vehicles as they come into service. However, the cameras fitted into vehicles in Victoria have not had the driver facing cameras activated because of the opposition from the TWU.

[21] He said the inward facing cameras and the associated audio recording are a vital part of a complete safety system. In particular, they allow the identification of subconscious behaviour drivers might not be aware of. For example, they can assist in identifying driver fatigue by enabling micro-sleeps to be captured, as well as identifying drivers who are looking into their mirrors for too long.

[22] He said Toll Liquids receives footage of numerous events notified to DriveCam from the cameras on its vehicles. He also indicated in cross-examination that before people in the management team have access to the footage sent to them the various events are assigned to one of four categories being coaching, risky driving, collisions and manual, which occurs when the driver has triggered the system.

[23] Mr Karslake also indicated in cross-examination that the footage received from DriveCam was only used in toolbox meetings, or for further coaching and training, after the consent of the driver involved had first been obtained. He said the guidelines about use of camera footage state, “Any other use of the footage for training purposes is only permissible with the express consent of the persons who are the subject of the surveillance.” 6 He also said the DriveCam technology enabled investigations into incidents to be carried out more quickly.

[24] He further stated:

[25] Mr Haydn Bowbyes is the Managing Director in Australia of IVCS Pty Ltd which, “specialises in the supply and installation of in-vehicle cameras with integrated driver training solutions.” 8 He said the Company supplies and installs cameras in trucks operated by its clients throughout Australia, including a number of businesses in the Toll Group. The system is known as DriveCam and is now in place in approximately 250 vehicles in different parts of the country.

[26] He said:

[27] He provided detailed evidence about the installation and operation of the DriveCam system. He said the forward facing lens captures a 120 degree viewing area in front of the vehicle, while the lens inside the cabin captures what is happening inside the vehicle plus whatever is visible through the side and rear windows. He said the system is triggered in one of two ways. Firstly, through G-force sensors, which note abrupt action such as hard braking, sudden acceleration, swerving, or a collision. Secondly, by the driver activating the system to capture a particular incident. He said DriveCam records a continuous eight second recording loop, however, it only saves the audio and video to its hard drive when triggered. The system then saves a 12 second event; 8 seconds immediately before the event and 4 seconds immediately following. The audio is also recorded for that 12 second period. He said on average, only 4.6 minutes per vehicle per month, or 9.3 seconds per vehicle per day, is captured by the system.

[28] He said any events that require follow-up are made available on the client’s secure web-based portal. Only certain nominated people in the client’s business with password protected access are able to view the videos, and it is for each client to decide what action is then taken in response to any event captured and forwarded to the client. He also said it is possible for the system to be activated by non-risky behaviour, such as hitting a pothole, but the settings are adjusted to attempt to minimise the number of invalid activations.

[29] He also said the video event recorder cannot be triggered from outside the vehicle and it was not possible to log in to a vehicle externally, or to attempt to monitor a driver on a real-time basis. In his view the system was not intended to be punitive but is instead “intended to reduce risky driving by helping drivers identify their risky driving behaviours and thus understand how they can improve their driving skills and their chances of making it home safe.” 10

[30] He said the system had a number of benefits for employees, including:

[31] He also stated, “Locally across Australasia we have seen staggering results from all clients on the system. We are averaging a 90% reduction in risky driving events within the first 12 months.” 12 He also stated that, in his view, the installation of both the forward facing and driver facing camera was important in assisting in driver coaching and training, because it provided an insight into driver risk gained from both the inside view of the cab and what is occurring outside.

[32] He did acknowledge in cross-examination that some drivers believed the system meant “Big Brother is always watching.” 13 However, he said the limited number of triggered events meant the system is not invasive to individual drivers and many drivers with good driving records had never triggered the cameras because of the nature of their driving behaviour. He also stated in cross-examination that the integrity of the data obtained by the system was a key to the success of its program, and it was his understanding the operation of the system was not in breach of any privacy laws in Australia.

[33] He also indicated in cross-examination that events recorded are kept on its system for 90 days and then destroyed at the end of a twelve month period. He believed there was “zero opportunity” for staff at the Company to pass on information gained through the system to other people and it takes its obligations in this regard very seriously. 14

[34] Mr Stuart Morrison is the Regional Operations Manager – Vic, SA & WA for Toll North Pty Ltd’s Toll NQX business and is responsible for the management and operation of the Melbourne, Adelaide and Perth branches. He said Toll NQX has been installing the DriveCam system into its vehicles over the past three years and this has occurred, in the main, without opposition from drivers in Queensland, South Australia, the Northern Territory and New South Wales. It also wished to install the system into its heavy vehicle fleet in Victoria but had encountered resistance to the introduction of the system in that State.

[35] He said there have been a number of discussions with Union organisers in Victoria and while its members in Victoria would accept forward facing cameras it was not prepared to support the installation of cameras facing the drivers. In his view this was “unacceptable” and the Union should not be rejecting a system designed to improve safety and driver behaviour. In his view the installation of the forward facing cameras only would limit the value of the system and mean, in the event of an incident, it would be difficult to ascertain whether driver behaviour had contributed in any way to that incident.

[36] He also provided a copy of a letter Toll NQX now provides to drivers on commencement of their employment which states, in part:

[37] He indicated in cross-examination that this letter had been provided to drivers since 2005, but a different letter of appointment had been used prior to that time, meaning longer term drivers had not received the current letter.

[38] Mr Robert Lovf is the General Manager of Toll Linehaul & Fleet Services, a division of Toll Transport Pty Ltd. It provides long haul transport for Toll’s business units across all major routes in Australia. He is also the Chair of the Toll Fleet Safety Network – Linehaul.

[39] He said in recent years Toll has sought to improve the quality of incident investigation by, firstly, doing more to establish the cause of accidents and, secondly, seeking to develop a process to eliminate or minimise, as far as possible, the effect of on road incidents. He said Toll began to explore the introduction of on-board cameras to record events as part of a process of utilising technology to identify the causes of on road incidents. He said the DriveCam system was finally selected after an evaluation of various options. Toll Linehaul now wanted to commence installing the system into its fleet operating across the east coast of Australia, however, it had been told by the TWU that its employees in Victoria would not consent to driving vehicles fitted with driver facing cameras. He said that despite numerous attempts Toll had been unable to overcome the drivers’ objections to driver facing cameras in Victoria. He also said it was not possible to adequately determine the cause of incidents utilising only the outward facing cameras and he was “strongly of the view that DriveCam delivers the great benefit of providing a tool to further coach our drivers about safe driving habits.” 16

[40] Mr Lovf also acknowledged it was possible the footage might result in disciplinary action where a driver was breaching Company requirements and, “this is a consequence of the system but in no way the reason for the introduction of the system.” 17 He also indicated in cross-examination the introduction of the DriveCam systems was about achieving better safety outcomes, rather than being about disciplining or terminating drivers. He also said it was an important tool in investigating incidents, and could then be utilised to provide coaching and training to drivers in response.

[41] Toll submits in conclusion that the TWU’s opposition to the installation of cameras “demonstrates a level of complacency that is entirely at odds with the philosophy of ‘continuous improvement’ which underpins chain of responsibility and other laws that regulate road safety.” 18 It also rejects any suggestion that it cannot introduce the cameras into its vehicles without the express consent of both the drivers and the Union. It also rejected the submission that the Victorian Surveillance Devices Act 1999 operates to prevent the use of the DriveCam system. In its submission the Union’s position is based on a range of assertions and expressions of opinion, with little evidence provided to support those contentions.

[42] The TWU submits it is not opposed to the installation of outward facing cameras but does object to the use of cameras facing into the cabin. It does not believe the inward facing cameras and the associated audio recording are necessary or warranted in regard to the commitments in clause 32(b) of the Agreement and, in its submission, the proposed introduction of the inward facing cameras is not “lawful or reasonable.” 19

[43] It does not accept that “DriveCam will necessarily improve safety or that it is the right approach for improving safety in the workplace or that it is an effective tool to improve driver behaviour and performance and hence road safety. Training, education and improving workplace culture will address safety, not video or audio recording.” 20

[44] It also submits Toll’s position is based on a presumption there are significant issues currently associated with driver behaviour and performance, however, if this is the case these issues have not been highlighted with the Union or its members.

[45] It states, “Toll has no industrial ability in the enterprise agreement or letters of appointment to introduce DriveCam without the agreement of the Union and its members.” 21 It also submits the current EBA removes Toll’s “ability to introduce new technologies such as DriveCam when clause 20 “Support for Technological Innovation” in the previous EBA Toll Group and Transport Workers Union Fair Work Agreement 2011- 2013 was not included in the current EBA.”22 It also submits Toll did not seek to enter into negotiations about the introduction of inward facing cameras in the negotiations for the current enterprise agreement that took place last year between February and August.

[46] It also submits Toll does not have an appropriate policy or procedure in place about the use of cameras, and what information is shown or recorded in the video footage and audio. It also submits the Surveillance Devices Act 1999 (Vic) provides protection for its members in these circumstances, and the DriveCam system represents an unacceptable intrusion into the driver’s privacy and space in their workplace. It also submits Toll has not consulted with it about the nature of any disciplinary action or process that might result from information gained from the inward facing cameras or the audio recording.

[47] It also takes issue with the legitimacy of the DriveCam system and submits the footage obtained is “short and inconclusive.” It also said it had not been provided, prior to the hearing, with any examples of the footage or audio recordings obtained from the system to enable it to make submissions about that evidence. (As indicated previously the Union was provided with an opportunity by the Commission to make further submissions, at some later point, about the footage provided in evidence by Toll, but elected not to do so.)

[48] Mr Andrew Bishop has been an organiser with the TWU (Vic/Tas branch) since July 2012. He was previously employed by Toll Liquids as a tanker driver for eight years, and has a Certificate 3 in heavy vehicle driver training.

[49] He said that during his time as a driver trainer he approached Mr Darren Karslake to discuss a proposal to introduce forward facing cameras. It was subsequently agreed they be installed in ten vehicles on a trial basis. It was later discovered the cameras had the capability to film and record audio in the cabin, but he was assured these features would not be activated. He said the issue of inward facing cameras was subsequently discussed at an OHS meeting in October 2011, and the Union continued to indicate it was unlikely it would agree to the use of cameras facing the driver.

[50] Mr Bishop said in response to the evidence of Mr Bowbyes that the cameras were a reactive tool, rather than a proactive one, and did not provide evidence prior to an incident about faulty driving habits or techniques. He also said Toll Liquids currently requires all drivers to be assessed on a six monthly basis and, as part of this system, the driver was assessed in the process of driving by the “Smith’s system,” which is a recognised system in use in the petroleum industry. 23

[51] He also said accidents occur as a result of fatigue and the pressures imposed on drivers by the industry, not by the lack of driver training. In addition, the occasions when a driver elects to capture an incident by manually triggering the DriveCam system mean he/she creates the risk of losing control of the vehicle. He also said the New South Wales branch of the Union had ongoing concerns about the use of driver facing cameras.

[52] In addition, the chain of responsibility legislation and GPS tracking systems that are already installed in vehicles provide adequate means to ensure transport companies and their drivers are meeting their respective obligations, and inward looking cameras were not required to verify this situation. He also said Toll could continue to improve safety outcomes within its business, but there were many other areas that needed improvement before being able to “have something looking in the cab which Toll will effectively use as a tool to blame the driver.” 24

[53] Mr Rick Milich has been employed by Toll NQX since 2002 and has long experience in the transport industry. This has included work as a Transport Manager with Australia Post, and as a self-employed driver. He said he objected to the installation of inward facing cameras, as did other Union members employed by Toll NQX in Victoria.

[54] He said the introduction of “any devices facing a driver would present major distraction to already difficult and treacherous driving conditions,” and could potentially contribute to accidents rather than preventing them. 25 He said that issues to do with driver behaviour and performance should be treated in the same way as with any other employee, and be dealt with through processes of investigation and enquiry with the employee and anyone else involved. However, he was not opposed to the use of outward facing cameras and believed they could contribute to the investigation of incidents.

[55] He also indicated in cross-examination he would feel very uncomfortable if driving with inward facing cameras installed, although he did acknowledge that any information obtained from the system indicating, for example, that a driver was not wearing a seatbelt was information an employer would not otherwise have access to.

[56] Mr Grant Hosking has been employed as a driver by Toll Linehaul for several years. He also objected to the installation of inward facing cameras and believed other Union members employed at Toll Linehaul held similar views. He said he was concerned the footage could end up on the internet, and this was made more likely by the fact a third party was being used to collect and review the footage provided to Toll. The concerns about privacy were a particular concern on two up driver teams, when one driver is resting in the sleeper section of a vehicle. He was also concerned that sound recordings of a driver could be misinterpreted, and the footage could be used to attempt to make drivers liable when incidents occur.

[57] He said the long-standing drivers had demonstrated to Toll and the industry that they were safe drivers, and no level of training or surveillance could act to accelerate the progression of new employees to higher safety levels of driving. He said he had an accident free driving record in forty-two years of driving interstate and, “it’s an insult to my professionalism that somebody has all of a sudden decided that they need to be watching what I'm doing.” 26 He also said drivers were concerned the cameras were to be used as “a punishment tool.”27

[58] In his view issues to do with fatigue are often caused by a failure at different sites to abide by scheduled departure times, placing additional pressure on drivers to comply with delivery schedules, and these issues would not be addressed by the use or installation of inward looking cameras in vehicles.

[59] Mr John Roe has been employed by Toll for more than twenty-five years and said he has not been involved in a single accident throughout his driving career. He has also been a long-standing Union delegate and OHS representative.

[60] He said he was not aware of any serious driver safety issues that would warrant the use of cameras. He said inward facing cameras would put extra pressure on drivers because they are aware they are being watched and filmed. He was also concerned about how the footage and audio was stored and accessed. He was also not aware, until the recent dispute, of any guidelines issued by Toll about the use of camera footage, and did not believe any consultation or training had been provided to employees about the guidelines.

[61] He also indicated in his examination in chief that there were more important safety issues to be addressed before the installation of cameras, including the updating of equipment and load constraints.

[62] He also said he has never received a letter of appointment or employment contract containing conditions that give Toll the right to introduce cameras into vehicles. In addition, the issue was not discussed in the negotiations leading up to the conclusion of the recent enterprise agreement. Toll had also not sought to initiate any discussion or consultation with him, or the TWU, about how any disciplinary action that might result from information taken from the installation of inward facing cameras would be dealt with.

Consideration

[63] The respective positions of both parties in this matter have been forcefully argued and their contrasting views are accepted and acknowledged. On the one hand it is submitted that the DriveCam system is a significant tool and has the capability to provide an enhanced understanding of what is being experienced by drivers involved in the often difficult and demanding work of heavy vehicle transport.

[64] On the other hand the submissions and evidence of the TWU, and its members, raise various concerns about the potential impact of the installation and use of the technology. This is based, in large part, on the evidence of several long-standing employees in the industry, whose experience in some cases extends beyond forty years and involves an incident free driving record. These are extraordinary example of professionalism and ability and the evidence and views of these witnesses has to be considered and respected.

[65] There are a range of issues that need to be considered in the determination of this matter. They have been detailed in the submissions and evidence relied on by both parties that have been referred to already. It is also noted that neither party made reference to any authorities that might be relevant to the determination of this matter.

[66] I turn to deal, firstly, with the terms of the Agreement that covers the parties and its relevance to the outcome of this matter. There are a number of references in the Agreement to issues related safety. Firstly, one of the objects in clause 2 of the Agreement is stated to be:

[67] Toll also made reference in the proceedings to clause 16 “Toll Values,” which states:

[68] Toll submits in this context that the introduction of the DriveCam system is a safety initiative being introduced as part of its commitment to safety and continuous improvement and the TWU should, in the spirit of the clause, be supporting its introduction as a demonstration of the shared commitment by the parties to safety. However, that submission presupposes that both parties have a shared view that the installation of the DriveCam system in Toll vehicles in Victoria is an initiative that enhances safety through continuous improvement.

[69] Specific reference was also made to clause 32 and sub clause 32(b)(i), in particular. The clause is set out in full at an earlier point in this decision and is not restated now. It is again relied upon by Toll in support of its submission that the enhanced workplace safety benefits to be achieved by the introduction of the DriveCam system into vehicles in Victoria mean the Union should not be standing in the way of this initiative. Again, this submission presupposes that there is no issue between the parties that the introduction of the system is being implemented by Toll as part of it complying with “all applicable workplace health and safety legislation (and codes of practice arising under such legislation)” and “all applicable ‘chain of responsibility’ legislation.” 30 Again, the TWU is not necessarily of this view, at least in regard to the installation of the inward facing cameras.

[70] Clause 14 of the Agreement also deals with “Consultation on workplace change.” Neither party made submissions about the relevance or otherwise of this clause to what is now being proposed. Nevertheless, there appears to be no issue about whether adequate consultation has taken place. However, those processes have not been successful in enabling an agreement to be reached about the issue.

[71] Two other issues were raised that relate to the Agreement that covers the parties. It was, firstly, submitted by the TWU and, in particular, by one of its witnesses, Mr Bishop, that installation of the DriveCam system into vehicles in Victoria was not raised by Toll in the negotiations leading to the establishment of the existing Agreement that covers the parties. Reference was also made to a clause in the previous Agreement that covered the parties entitled “Support for Technological Innovation,” that is not contained in the current Agreement. It was submitted that Toll is therefore precluded from now proceeding with the installation of an initiative such as the DriveCam system.

[72] I have considered the various provisions in the Agreement that have been referred to, as well as the two additional matters, and am satisfied there is nothing in the Agreement that precludes Toll from doing what it now proposes. In addition, while it might have elected to raise the matter in the negotiations that led to the establishment of the current Agreement I am not satisfied the fact it did not in any way precludes it from now proceeding to consider the installation of the DriveCam system.

[73] In addition, it is not apparent how the clause contained in the previous Agreement in any way prevents Toll from doing what it now proposes.

[74] In dealing with any obligations or requirements that might prevent Toll from installing the camera and audio system the TWU also made reference to the Victorian Surveillance Devices Act 1999 as potentially providing protection to the drivers in these circumstances. However, the Commission was not taken in any detail to these provisions. Toll also rejected any suggestion that the Surveillance Devices Act 1999 could be construed in this way. Again, based on the submissions and evidence in the matter I am not satisfied that this State based legislation acts to preclude Toll from doing what it now proposes.

[75] The TWU also made reference to the fact that it is only in more recent times that new drivers, when first engaged, have been required to sign a letter of offer indicating that a condition of their employment is “consent to the ongoing monitoring, recording and surveillance...in the course of your employment...” 31 The evidence of Mr Karslake suggested this letter of offer had been used by Toll since 2005, and it had not been in place prior to that time. It was suggested by the Union this was a factor to be taken into account in considering whether drivers employed prior to 2005 could be required to work with the DriveCam system. However, I am not satisfied this necessarily acts to prevent these drivers being required to work with the new system. There have obviously been a range of developments and new requirements in place now that were not in place or even foreshadowed in the past. Compulsory seatbelts are one example, GPS tracking of vehicles is another. It is unlikely that these initiatives were potentially flagged as conditions of employment when long-standing employees were first engaged, and yet they are now accepted as industry norms.

[76] In summary, I am not satisfied that there is anything in place in terms of a legal or contractual barrier that prevents Toll from doing what it now proposes.

[77] I now turn to consider the various submissions made about the DriveCam system and its respective merits. I have referred in some detail to the evidence of Mr King and Mr Bowbyes, in particular, in support of the system and its introduction and don’t now restate that evidence in detail. I also accept the submissions of the TWU in regard to the evidence of Mr Bowbyes that given his commercial interest in the technology he could not be expected to be anything but fulsome in his support for it. I have considered his evidence in the light of those submissions.

[78] As indicated, I have made reference already to the evidence about the DriveCam system and its operation. Toll submits the system provides an enhanced ability to understand what is happening on the road, as well as what is impacting on a driver and the vehicle he/she is driving at the time when incidents are captured on the footage. It also submits the driver facing cameras provide the added dimension of giving an insight into potentially inappropriate driver behaviour, such as not wearing a seatbelt or eating and drinking in the cabin in a manner that distracts the driver from the task at hand.

[79] Without going to his evidence in detail Mr King, who also has long-standing experience in the transport industry, gave evidence of his belief that after two and a half years of the system being in place it has delivered significant benefits in improving heavy vehicle safety. He pointed particularly to the vast improvement in driver behaviour in relation to wearing seatbelts, not using hand-held phones while driving, not smoking in the vehicle, and avoiding tailgating. He also gave evidence about how footage could be used to enhance driver coaching and training. Significantly, his evidence also demonstrated how the cameras provided footage which emphatically exonerated drivers of any blame in particular incidents and, at the same time, provided examples of their skill and ability in taking appropriate evasive action in response to the actions of other road users, which might otherwise have had disastrous consequences.

[80] Mr Bowbyes’ evidence also went to the security concerns about the footage obtained through the system, and the fact it cannot be triggered externally to “spy” on drivers. He also provided details about the limited amount of footage obtained, on average, from an individual driver, and the fact many drivers never give cause or are involved in incidents where their behaviour triggers the cameras.

[81] I have also had regard to the concerns expressed by the Union and its members about the potential impact of the installation of the DriveCam system and don’t seek to downplay or disregard those concerns. They have been referred to in the evidence detailed in earlier parts of this decision. They relate particularly to concerns about the footage obtained becoming public; to the system being used as a mechanism to punish poor performance; to suggestions the system may be a safety hazard through the distraction caused by the inward facing cameras, and by drivers making decisions to manually trigger the camera; and, finally, to the intrusion on a driver’s privacy while at work. In this context particular issues were highlighted about the circumstances when “two up” teams are in place and one driver is in the sleeping compartment. I do not take issue with the fact the TWU and its members in Victoria have these concerns. However, there was little evidence provided in the proceedings to substantiate these concerns, despite the fact the DriveCam system has been in place in other States for at least two years, and in some cases longer. It is also in place in other countries according to the evidence of Mr Bowbyes.

[82] Given this situation it could be expected evidence from the operation of the system elsewhere would have been provided to the Commission to support the concerns being raised. However, apart from some exchanges in cross examination about an employee in Queensland, who was apparently dismissed partly as a result of footage obtained from the cameras, there was little else put to the Commission by way of specific evidence to support the concerns being expressed by the TWU and its members.

[83] The witnesses called by the TWU also questioned why the introduction of the camera system was necessary, given their long standing experience without this technology being in place. One witness described it as an insult to his professionalism that it was being proposed that he should be observed while at work. These concerns coming from employees of long-standing with proud records of performance and service can be understood. However, it could be argued, for example, that the introduction of the mandatory wearing of seatbelts could be considered in the same way, along with the introduction of other safety initiatives. There was also no evidence to support these concerns based on the experience of drivers in other States now driving vehicles with the camera system installed. In addition, it is emphasised again that the footage obtained from the system provided graphic examples of the skills and abilities exercised by drivers in avoiding the potentially catastrophic consequences of the behaviour and actions of other road users.

[84] Mr Bishop also suggested the system was not a significant safety initiative because it was essentially a reactive rather than a proactive tool, and did nothing to actually prevent incidents or particular types of behaviour from occurring or being exhibited. However, various witnesses made reference to the fact the footage can be used to demonstrate to drivers, by means of coaching and training sessions, how certain behaviour can contribute to incidents, and how this coaching and training can assist in altering behaviour. In this context it does seem the system can be proactive in terms of changing behaviour so that it does not contribute to incidents occurring.

[85] In conclusion, and having considered all the evidence and submissions I am satisfied, firstly, that there is nothing that prevents Toll from installing both the outward facing and driver facing cameras into its heavy vehicle fleet in Victoria. I am also satisfied that the evidence indicates the system can contribute to better safety outcomes in the road transport industry and should be considered by the parties in this context. I have come to this conclusion based solely on the evidence before the Commission in this matter.

[86] I am also satisfied that any proposal to install the camera and audio system in any of Toll’s vehicles should only occur after employees have been provided with structured training about the operation of the system, and the Guidelines that apply to its use, before they are required or expected to drive a vehicle that has the system in place.

egory C Signature.bmp

COMMISSIONER

Appearances:

Mr D Sloan appeared on behalf of the Applicant.

Mr B Baarini appeared on behalf of the Respondent.

Hearing details:

2014.

Melbourne:

1 and 2 April

 1   Applicant’s Outline of Submissions at para 10

 2   AE405183

 3   Ibid at cl.32

 4   Exhibit S2 at para 17

 5   Ibid at para 18

 6   Transcript at PN960

 7   Exhibit S5 at para 15

 8   Exhibit S1 at para 2

 9   Ibid at para 6

 10   Ibid at para 13

 11   Ibid at para 14

 12   Ibid at para 15

 13   Transcript at PN221

 14   Ibid at PN181

 15   Exhibit S4 at attachment SM1

 16   Exhibit S6 at para 12

 17   Ibid

 18   Applicant’s Submissions in Reply at para 3

 19   Respondent’s Outline of Submissions at para 21

 20   Ibid at para 5

 21   Ibid at para 9

 22   Ibid at para 8

 23   Exhibit B1 at para 21

 24   Transcript at PN1625

 25   Exhibit B5 at para 5

 26   Ibid at PN1907

 27   Exhibit B4 at para 10

 28   AE405183 at cl.2(b)

 29   Ibid at cl.16

 30   Ibid at cl.32

 31   Exhibit S4 at attachment SM1

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