Sydney Water Corporation T/A Sydney Water v Australian Municipal, Administrative, Clerical and Services Union

[2010] FWA 8693

[2010] FWA 8693

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute in relation to flexible working arrangements

Sydney Water Corporation T/A Sydney Water
v
Australian Municipal, Administrative, Clerical and Services Union
(C2010/5268)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 22 NOVEMBER 2010

Dispute relating to the activation of Global Positioning System Technology.

[1] On 18 October 2010 an application was lodged by Sydney Water Corporation (Sydney Water) seeking that Fair Work Australia (FWA) deal with a dispute in accordance with the dispute settlement procedure of the Sydney Water Enterprise Agreement 2009 (the Agreement). Mr Friend appeared for the Australian Municipal, Administrative, Clerical and Services Union (ASU) and Mr Ferrier, with Mr Cannard, appeared for Sydney Water.

[2] After conferences were held with the parties on 28 October 2010 it was agreed that there would be an arbitrated recommendation regarding the application of the Global Positioning System Locators (GPSLs) to the toughbooks (laptops) used by Civil Maintenance Production employees at Sydney Water ie not whether GPSL would be applied to toughbooks, but how the process would be managed.

[3] It was agreed that I would hear evidence and submissions and listen to the concerns of the parties. The identified purpose of the arbitration was to produce a recommendation which, for a limited period of twelve months, would govern the application of GPSLs to toughbooks to ensure minimal problems and no excessive detriment to either Sydney Water or the membership of the ASU. 1 Both parties agreed to accept the recommendation determined by me.2

[4] Sydney Water has had GPSL fitted to high value items of plant for some time. The purpose of the locators on this plant is security. The information is only accessed if plant is missing. 3 GPSL have recently been added to toughbooks,4 which are the laptops used by the relevant employees, but the data had not been accessed at the date of hearing.5 It is this addition which is controversial.

[5] Sydney Water submitted that GPSL attached to toughbooks is beneficial for scheduling work, minimising travel and providing the ability to locate staff immediately when required. 6 The GPSL procedure7 states:

“GPS locators provide a number of benefits including:

• Safety

• Security

• Customer service

• Efficient scheduling and dispatch of work.”

[6] Sydney Water submitted that the introduction of GPSLs is not a matter that requires consultation under the Agreement. Despite this, given the sensitivity of the issue to the workforce, consultation has taken place. An information sheet was developed and circulated to staff. 8 Some of the questions and answers are set out below:

“Q Why do we need GPS?

A GPS lets us locate vehicles, plant and equipment quickly and easily.

GPS technology can provide many benefits to the organisation - from keeping our staff safe, to serving our customers better.

From recent tests using Sydney Water data with a GPS system and from seeing others use the same technology, we know it can help improve our response times. It will also improve productivity and reduce cost - contributing to our corporate goal of being an economically efficient business.

......

Q What are the main advantages of GPS?

A GPS provides a quick, accurate way to locate a vehicle or piece of equipment. This has a number of advantages for our business and our customers.

From a safety perspective, if someone is in trouble and needs help, we can locate them and get to them quickly.

From a scheduling perspective, our frontline crews can be allocated to the closest and most relevant job.

It can also provide real-time information for the planners allocating frontline crews and equipment. This can then be communicated to the call centre and our customers.

......

Q What other data can you gather using the GPS?

A GPS can also be used to track other data, other than location. For example, on vehicles, it can be used to track fuel efficiency, kilometres travelled and other data that can be used to improve the way we work. While we will not be using these functions initially, it is something that is available in the future.”  9

[7] Sydney Water has a policy 10 for the introduction of GPSLs in different operational areas which involves authorisation by divisional heads.11 The policy relevantly provides that:

• The policy applies to identify the position of vehicles, plant and equipment. 12



• The use of GPSL will be carried out in accordance with the Workplace Surveillance Act 2005 and all equipment will have a GPSL notice which is clearly visible.

[8] The policy also states that the GPSL information may be used for “legitimate business purposes” 13 which are identified as follows:

“GPS locators fitted to Sydney Water vehicles, plant and equipment may be operate (sic) 24 hours a day, 7 day a week (sic)

Reports and data provided by the GPS system will be held securely and will be used for business purposes including:

Monitoring the location and operational efficiency of vehicles, plant and equipment

Optimal scheduling and dispatch of work

Health and safety of staff

Reporting, analysis and data verification

Timely communication to customers and other stakeholders

Security and theft prevention.”  14

(my emphasis)

[9] Regarding access to GPSL data the policy states:

“3. GPS data access and security

3.1 Data access

Access to live GPS information will only be available to authorised staff involved in allocating work and leaders of staff allocating and carrying out that work.

Authorised staff carrying out reporting and analysis will have access to historical records.

Fleet management will have access to live information and historical records.

3.2 Data security

Data security will be maintained through normal Sydney Water access protocols. Data will be kept for a period of up to seven years.” 15

(my emphasis)

[10] Access to GPSL real time information is proposed by Sydney Water to be limited to those staff with access to the software known as “the dispatch application.” These workers would be resource co-ordinators, work plan co-ordinators and leaders of field staff. 16 Access to GPSL historical data is proposed to be limited to staff with responsibility for business analysis.17

[11] Sydney Water submitted that there would be no impact on staff arising from the application of GPSLs to toughbooks because there are no new skills required, no changes to processes proposed and no additional requirements of staff.  18

“MR FERRIER:......Employees going about their legitimate business would not know GPS was activated from one year to the next. Information available, from all types of business tools, have a range of uses, including disciplinary investigations, and will be used in any way that’s lawful, reasonable and useful to the business. The ASU has expressed concerns in the past about monitoring. At this point, your Honour, our position is that monitoring in itself wouldn’t be adverse action. There’s no action in monitoring. It’s simply being aware of where people or equipment might be.

Where an employee or the ASU is aggrieved by the way in which information is used, they have available to them the dispute resolution and grievance process under the enterprise agreement. This is supplemented by a policy, which is consistent with the agreement, but provides more details for managers in managing grievances.......” 19

(my emphasis)

[12] Sydney Water provided a proposed guideline on the use of GPSL information for my consideration. It submitted that the proposed guideline 20 would provide a quick and independent process by which to resolve issues which had been developed around the dispute resolution and grievance procedure in the agreement.

“FWA C2010/5268 - GPS in Civil Delivery

Guidelines for Civil Delivery Leaders on the use of GPS information

1. Anyone with legitimate access to the Dispatch Application may raise an issue.

2. Information relating to the issue will progress through, and be limited to, the chain of command, ie no exchange of information relating to issues between first-level supervisors/planners/schedulers, etc.

3. The manager/supervisor of the person who is the subject of the issue will raise it with him/her directly to ascertain/clarify facts and seek an explanation. Issues which are identified in real time will be raised as soon as practical after they have been identified, normally by the end of the next business day.

4. If it is still an issue the manager/supervisor will inform the Area Manager & the HR Manager.

5. If it is still an issue and allegations are to be put to an employee, the HR Manager will inform the nominated ASU representative.

6. If the ASU disagrees with Sydney Water’s position it may refer the matter directly to Fair Work Australia.

The above to be reviewed after 12 months.

3 November 2010.” 21

[13] In contrast to the submission of Sydney Water, that there would be no impact on staff resulting from the application of GPSLs to toughbooks, Mr Friend identified the concerns of the ASU membership as follows:

“Our members have deep and genuine concerns that this tool will become an easy way for management, particularly at the depot level, to harass, intimidate and bully the other members of the civil maintenance workforce. 22

.....

There is a reality for our members in this workforce which is important to be understood; that is, the nature of the relationship between production employees and depot management, which is often very adversarial. There have been many disputes over many years by employees on both sides of this relationship. Our members often report to us feeling antagonised, intimidated and bullied by depot level management and the ASU is regularly in discussions with Sydney Water management about this. It is a very deep concern for our members. We have every reason to believe that this tool, which is planned to be freely available to all levels of depot management and will, in passing, be viewable by any person in the depot - for example, administration staff - will only exacerbate an existing environment of distrust and harassment.

Our members are concerned that GPS tracking by depot managers will be used unreasonably and in a petty manner. Many members have experienced forms of this type of harassment already and we would like to illustrate this with brief evidence from our witnesses. Our members are worried about the psychological effects of being constantly monitored by GPS tracking devices. We refute the statement by Mr Ferrier and Sydney Water that this is a non-intrusive form of workplace tool.

A large number of individuals have spoken out at the recent meetings held about personal fears they had due to ongoing or past poor relationships with one or more managers in their depot. They believe that this technology would allow depot managers to act in a rogue way to punish them frivolously or perhaps, more worryingly, to constantly threaten punishment if even the tiniest foot is placed out of line.

Even if Sydney Water is able to express to their depot managers firm directions to not act in such a way, our members fear that these directions will be ignored in favour of an easy method of payback against individuals who have fallen out of favour or as a severe stick approach to management which was not previously available and is completely excessive to reasonable methods. This is why only the schedulers should have access to this information.” 23

[14] The ASU submitted that the relevant employees generally have two types of work. Planned work, which is allocated by a work plan co-ordinator at the depot and is not generally updated during the day, and reactive work which is allocated by the schedulers.

[15] Mr Cannard from Sydney Water informed me from the bar table that schedulers cover reactive work but that that is only fifty percent of the work. They are available before 11pm at night at the call centre and, for urgent work after 11pm, the calls are directed straight to the scheduler. The employees at the depot who deal with job allocation, who check on people and know where they are, are the field supervisor and the work plan coordinator. Those persons perform planned and corrective work. The schedulers perform reactive work. 24

[16] The ASU provided a document which summarised its position. 25

[17] The ASU’s first concern was that GPSL tracking information did not need to be available in depot offices. It submitted that only schedulers needed this information and that they are the only employees who need access to real time information provided by GPSL. Access by persons in depot management is not necessary for any of the purposes outlined by Sydney Water. The schedulers are on 24 hour call and are located in a separate location at Liverpool. They do not have a day to day relationship with depot management and are therefore removed from the possibility of contamination by any local and/or personal issues. 26 Removal of the information from depots would remove the fear of intimidation felt by depot staff.

[18] The ASU was also concerned about the protection of member privacy arising from the ability to track individuals at all times and pressed for the anonymity of data.

Regarding privacy:

“MR FRIEND:......our members are acutely concerned by the invasion of privacy that this system will create by giving all levels of Sydney Water management the ability to track an individual at all times, including when they are at home on stand-by, awaiting a call to work, and that this information will be stored by the corporation for use for seven years.” 27

Regarding anonymity:

“MR FRIEND: ......There is a certain level of personal time afforded to employees in all workplaces, whether it be paying a bill online, stopping at a pharmacy after lunch, diverting via a bank to deposit a cheque after a meeting. This particular system and its style of implementation threatens all of this information to be viewable at any time and will, guaranteed, store this information for seven years.” 28

[19] Mr Friend submitted that his membership was feeling the psychological pressure of being already constantly monitored. This pressure would be exacerbated by the big-brother monitoring involved in the use of GPSLs, particularly involving storage of information for seven years. If GPSL tracking data is stored for seven years and is not made anonymous members fear they will be persecuted and statistical data will be used against them. For the purposes identified by Sydney Water for the introduction of GPSL, the information, other than in an anonymous form, is not required.

[20] Mr Friend submitted that Sydney Water does not rely on a disciplinary use for this material. It has specifically disavowed any such use. Therefore, there is no relevant purpose for the retention of the material. If the information is not intended to be used for disciplinary purposes it does not need to be retained. If it is retained, it needs to be retained anonymously. If not, the result will be “......a new regime of mistrust and antagonism; an environment of fishing exercises and harassment by management against those employees who are offside or outsiders, be they union members, outspoken individuals, those who are different in some way or, for other frivolous reasons, are not liked.” 29 The ASU was adamant that the information provided by GPSLs should not be used for disciplinary processes.

[21] The ASU called Mr Grace. 30 Mr Grace is a production employee who predominately performs reactive work. He described the manner of his work. The schedulers contact him for work, he is rarely contacted by the depot. Depot staff can examine their computer and ascertain his job assignments and whether he is “en route” or “on site”. Schedulers, and work service coordinators at the depot know where maintenance production workers are. He assumes the field supervisor knows where he is. He described the role of field supervisors as follows:

“Who is the field supervisor?---Our depot is divided up into about 40 blokes and there's three of them, and they're allocated X amount of men and they're supposed to be our mentors and they look after us and they go out on the job and they do audits on us, like to see we're doing the right thing, if we've got traffic control set up or sandbags and stuff like that.

A field supervisor is not a depot manager?---He's probably one below the work source coordinator, yes. He's probably like a smaller version of a manager. 31

.....

He's our mentor and any issues he - he might come out and check our electrical leads; like I said, do an audit on us, make sure we get out (indistinct) our traffic set-up, our electrical gear, our sandbags, all the other stuff that goes with the job and, you know, our risk assessment. He usually checks our FRM, makes sure our risk assessment has been checked, done, when he does the audit.” 32

[22] In relation to the relevance of supervisors having access to the GPSL information he said:

“If GPS was to be limited to the schedulers, how do you think that would work; I mean, the proposal that the union has put forward?---The GPS with the schedulers of late, they know where we are already, so I think they're the only ones that deal with us; they're the only ones who should know what's going on, because we deal with them all the time. I've met a couple of them, but other than that, a lot of them are faceless, so I've got no problems, no.

At the moment do you have much of a relationship, or a similar relationship with the schedulers as you do with the depot managers and the supervisors that you work with?---I've got a good relationship with the schedulers. One I know because his dad was my boss probably 30-odd years ago, but other than that, no, we've got a good relationship. There's a couple of odd ones there that step the mark, but basically they're all right and they know where you are.

How often do you work with the supervisors at the depot level? How often would you see them on a week night?---Probably if I go back for lunch or - probably once or twice a week maybe, because we start and finish in the field and come back for lunch. Yes, probably once or twice a week.” 33

[23] Mr Ferrier asked Mr Grace whether the GPSL provides any more information than the current system, which is the FRM or toughbook. His evidence was that it did not. 34

[24] The question of a maintenance worker having an obligation to notify the depot of any diversion from the direct route to a job was raised in Mr Grace’s evidence. I asked Mr Cannard about that matter. Mr Grace said that he had been told that he could call someone if he wanted to make a diversion. 35 Regarding the previous culture at Sydney Water he said:

“ Like I said, the culture has changed a little bit here, but the managers didn't mind you doing that because, you know, you're either coming back for lunch or - times have changed now where you're starting and finishing in the field and they want you to have lunch in the field and, you know, you miss your morning teas and stuff like that, and afternoon teas. Things have just changed now. Managers did - it was accepted that you went and got your lunch or you got your pay or something like that. I was here before the pay car used to come to the job, but not any more. The automation has kicked in, so - it's still a bit of a struggle with me, but that's the way it goes. I'll adapt.” 36

[25] Mr Thompson was called by the ASU. He gave evidence 37 concerning the morale of the workforce, particularly amongst long serving employees who he described as apprehensive and under stress.38 He sees the GPSLs application to laptops as:

“... an opportunity and a tool to be able to - you know, if they see fit to track me or follow me as an individual, it gives them every right to do that and we still don't know what's going to happen in the long run if three or four cases are proven that you were not in the right place at the right time. We don't know what's going to happen. Everything is up in the air, really, at the moment.” 39

[26] In relation to safety issues, Mr Ferrier conceded that the GPSL’s were only an improvement to the extent that it is safer to know where someone is rather than not know.

“MR CANNARD: The intention with that is as Ray has pointed out. In the civil area, safety isn't a primary reason for the introduction of GPS but it does have some secondary benefits. Now, those secondary benefits are that, if we do lose contact with a crew or a crew doesn't report in, we can actually then see the actual location of that particular crew and dispatch someone to find out what's happening.

THE SENIOR DEPUTY PRESIDENT: Yes, but you can locate that crew if the schedulers have the GPS, the work plan coordinator has the GPS information or the field supervisor has it.

MR CANNARD: That's correct, yes.” 40

[27] In relation to storage of the information for seven years, Mr Ferrier conceded that the storage is not a benefit in itself. It is merely a compliance with the State Records Act. 41

CONCLUSION

[28] The ASU asked me to consider whether, at the end of the relevant twelve month period, the procedure should only be changed by agreement between the parties. 42 That is not a matter before me. I have been asked to make a recommendation regarding an interim period of twelve months. What happens at the end of those twelve months is a matter for negotiation between the parties, although consultation at that time would be appropriate.

[29] The ASU also submitted that ASU delegates should be trained in the system. 43 I can see no reason why delegates should not be trained, but that also is not a matter for resolution by me in this arbitration.

[30] Also, it is a matter for Sydney Water whether the State Records Act requires storage of information for seven years. I do not intend to make any recommendation about that matter.

[31] It is clear to me that the current system does not show the exact location of a crew, whether they are actually “en route” or have diverted from that route. In this respect GPSL’s are an improvement.

[32] Mr Cannard’s response to my question regarding a maintenance employee’s obligation to telephone regarding any diversions was that diversions that did not involve a delay in performing an allocated task or an absence from that task would not require a telephone call to a leader. 44

[33] Production employees should notify any significant deviation from their normal routes to their field supervisor. A significant deviation is one which causes a delay in attendance or a failure to attend allocated work. Minor diversions should not require a notification. There is a give and take in this work for both workers and Sydney Water in the current arrangements and this has benefits for both. This should continue.

[34] I am persuaded that the persons allocating planned and corrective work at the depots also need access to the dispatch application for the efficient performance of their work. Access should be limited to those persons.

[35] I accept that Sydney Water has not been disingenuous in its disavowal of a disciplinary purpose for the application of GPSLs to toughbooks. Sydney Water’s motivation for the introduction of this use of GPSL’s is primarily the efficient scheduling and dispatch of work. To a lesser extent it is also safety, security, customer service and long term business efficiencies. The introduction of GPSLs to toughbooks has not been undertaken for the purpose of providing information for disciplinary proceedings, although its potential misuse in this area concerns the maintenance workers and the ASU. Mr Ferrier has said:

“Information available, from all types of business tools, have a range of uses, including disciplinary investigations, and will be used in any way that’s lawful, reasonable and useful to the business.” 45

[36] Access to information recorded on GPSL should only be accessed for the purpose of resolving delays in attendance for allocated work or failures to attend to allocated work. Access to GPSL information should not occur for the purpose of satisfying the idle curiosity of management as to the whereabouts of employees, when there is no management imperative requiring access to the information. Employees are not to be the subject of covert surveillance and fishing expeditions by way of GPSL. With this limitation, if misconduct is demonstrated and observed by persons who have legitimate access to the GPSL information, it can be pursued through the process I recommend.

[37] I recommend the following:

Guideline for the Resolution of Disputes Concerning GPSL Information.

• Access to the dispatch application should be limited to the schedulers and, at the depot, to the work plan coordinators and field supervisors. A depot manager or other manager with a legitimate business purpose can ask a work plan supervisor, a field supervisor or a scheduler where a particular employee might be.



• Any person in these categories may raise an issue with the appropriate field supervisor of a civil maintenance production employee. The field supervisor may raise an issue that he or she has, or that has been raised by another person with legitimate access to the dispatch application, with the relevant maintenance employee directly, to ascertain or clarify facts and seek an explanation. Issues which are identified in real time should be raised as soon as practical after they have been identified, normally by the end of the next business day.



• If the appropriate field supervisor considers the issue requires further action he or she will inform the depot manager.



• If allegations are to be put to an employee the depot manager will inform Mr Ferrier from Sydney Water and Mr Friend from the ASU. If Mr Ferrier or Mr Friend are unavailable they may nominate a replacement.



• Mr Ferrier and Mr Friend or their nominees will meet and discuss the issue in conference within seven days.



• If the ASU and Sydney Water cannot reach an agreed position through Mr Ferrier and Mr Friend or their nominees a dispute may be notified to Senior Deputy President Drake of Fair Work Australia who will hear the notification and make a recommendation regarding the dispute.



• Access to stored information should be limited to a direct authorisation by the manager of Sydney Water and should occur only for the purposes identified by Sydney Water as those purposes for which the implementation of GPSL to toughbooks has been undertaken and not for disciplinary enquiries.



• This guideline will be followed by both parties.



• This guideline will operate for twelve months.

SENIOR DEPUTY PRESIDENT

 1   Transcript PN 5 - 6.

 2   Transcript PN 9.

 3   Transcript PN 24.

 4   Transcript PN 25.

 5   Transcript PN 24.

 6   Transcript PN 25.

 7   Exhibit Sydney Water 1 - GPS Policy - Overview.

 8   Exhibit Sydney Water 2.

 9   Ibid.

 10   Exhibit Sydney Water 1 - GPS Policy - Overview.

 11   Transcript PN 25

 12   Exhibit Sydney Water 1 - GPS Policy - Overview.

 13   Ibid, 1.5.

 14   Ibid, 2.3 Day to day operation.

 15   Ibid, 3.1 - 3.2.

 16   Transcript PN 34.

 17   Ibid.

 18   Exhibit Sydney Water 3 - Sydney Water Policy - Fair Treatment (Grievance Resolution) Policy.

 19   Transcript PN 36 - PN 37

 20   Exhibit Sydney Water 4.

 21   Ibid.

 22   Transcript PN 64.

 23   Transcript PN 67 - 70.

 24   Transcript PN 242 onwards.

 25   Exhibit ASU 1.

 26   Transcript PN 66.

 27   Transcript PN 78.

 28   Transcript PN 79.

 29   Transcript PN 82.

 30   Transcript PN 100.

 31   Transcript PN 106 - 107.

 32   Transcript PN 114.

 33   Transcript PN 115 - 117.

 34   Transcript PN 136.

 35   Transcript PN 151.

 36   Transcript PN 155.

 37   Transcript PN 164.

 38   Transcript PN 171.

 39   Transcript PN 180.

 40   Transcript PN 279 - 281.

 41   Transcript PN 297.

 42   Transcript PN 89.

 43   Transcript PN 92.

 44   Transcript PN 211 - 218.

 45   Transcript PN 36 - 37.

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