Toll Personnel Pty Ltd v Transport Workers' Union of Australia-New South Wales Branch

[2018] FWC 7843

[2018] FWC 7843

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 418 - Application for an order that industrial action by employees or employers stop etc.

Toll Transport Pty Limited; Toll Personnel Pty Ltd
v
Transport Workers' Union of Australia-New South Wales Branch
(C2018/7222)

DEPUTY PRESIDENT SAMS SYDNEY, 24 DECEMBER 2018

Alleged industrial action at Toll Transport Pty Limited at Minchinbury site – alleged safety issues – no evidence from employees – Commission satisfied industrial action has occurred and is threatened to continue – s 418 order must be made – orders made.

[1] This decision will elaborate on my ex tempore decision and order delivered in the afternoon of 20 December 2018.

INTRODUCTION

[2] At 7.14pm on 19^th December, 2018, Toll Transport Pty Ltd (the application was later amended to include Toll Personnel Pty Ltd as an applicant) (‘Toll’) filed an application, pursuant to s 418 of the Fair Work Act 2009 (the ‘Act’) in which Toll alleges that employees at its Mitchinbury NSW Distribution Centre have taken and are threatening to take further unprotected industrial action. The application was listed for urgent hearing the following day, given the provisions of s 420 of the Act.

[3] At the hearing, Mrs F James, Senior Manager, Employee and Industrial Relations and appeared for Toll. Mr G Webb and Mr A Rodgers appeared for the members of the Transport Workers’ Union named as respondents to the application. In accordance with my usual practice, I convened a private conference with the parties to explore whether an agreement might be reached in respect to the application. Those discussions proved unsuccessful and I moved the proceeding into formal hearing.

THE EVIDENCE

[4] Toll called Mr Robert Hancock as its only witness. As Mr Hancock’s statement is relatively brief and sets out the background to the application, I set it out in full below:

I, Robert Hancock of business address, 69 Sergeants Road, Minchinbury in New South Wales ACT make the following statement:

1. I am employed by Toll Transport Pty Limited (Toll), the Applicant, in the position of Senior Manager – Woolworths NSW. I have worked for Toll for approximately 5 years.

2. In my position with Toll, my responsibilities inclue managing the day to day operations of Toll’s Minchinbury depot (Depot) and its drivers that perform deliveries for Woolworths (Drivers).

3. There are approximately 250 Drivers that work at the Depot.

4. The Drivers are covered by the Toll-TWU Enterprise Agreement 2017-2020 (Agreement). This Agreement expires on 30 June 2020.

Infrared driver fatigue/distraction monitoring system and driver facing cameras

5. There are six new trucks owned by Toll that have Guardian technology installed, which is a infrared driver fatigue/distraction monitoring system. This system includes inward facing cameras.

6. The six trucks are 2017 & 2018 model Mercedes Actros with a GVM of 26 Tonne. They have all been recently serviced and are in fine working order.

7. The system is not fully operational. It will be fully operational once Toll has consulted and trained the Drivers.

8. Toll intends on consulting and training the Drivers in January 2019.

9. It is my undertaking that the system was subject to a dispute that was determined by the Fair Work Commission this year, being Toll Transport Pty Limited T/A Toll Shipping v Transport Workers’ Union of Australia [2018] FWC 3573.

Email from Jimmy Grace

10. On 19 December 2018, on or around 5.00am, Mitchell VARNAM, Operations Supervisor told me that Robert Mitchell and Harwinder Singh refused to drive their allocated trucks because of the cameras in the truck. Robert and Harwinder are Drivers.

11. On 19 December 2018, on or around 3.00pm, Rohneel Kumar, Operations Supervisor told me that Goran Mihalylovic, a driver would not drive a truck because of the cameras in the truck. Goran is also a Driver.

12. On 19 December 2018, on or around 4.15pm, Paul Wilson and Harold Haigh came into the operations office and said something along the line: Drivers have a right to refuse if they feel unsafe.

13. On 19 December 2018 at 5.32pm, Jimmy Grace sent me the following text message that said, amongst other things:

The new trucks with these cameras are now grounded effective immediately.t he remainder of the fleet will not be affected

I attach a copy of my statement Annexure RH1 a copy of the text message.

14. On 20 December 2018 at 6.26am, Mitchell Varnam sent me and others an email stating:

Morning All,

This morning Paul Wilson was presented with a load to rosehill/north Strathfield, after receiving the load he walked away. He returned to the window roughly 15 minutes later and advised that he would not leave the yard if we didn’t park up the 4 new green trucks that have cameras in them, he then put his load on my desk and went to walk away. I reassured him that the green trucks wouldn’t be leaving the yard as of yet and he then took his load.

At 5:40 he then advised his truck had damage and he needed a new truck, he was presented with 80857, he then advised that truck had a cracked mirror and he needed another truck, at 6.10 he received 80835 he then went to the lunch room and did what he had to do for 15 minutes before getting in 80835.

I attach a copy of my statement Annexure RH2 a copy of the text message.

15. This isn’t the first time Drivers have refused to drive the trucks because of the Guardian technology. I often hear from Drivers that they wont drive the trucks if the cameras are on.

16. The 6 trucks discussed above are 2017 & 2018 model Mercedes Actros with a GVM of 26 Tonne. They have all been recently serviced and are in fine working order.

[5] In cross-examination, Mr Hancock was questioned as to the extent of, and detail of the consultation Toll has had with employees, in respect to the introduction of the Guardian Technology; see paras [5]-[9] of the above statement. He was asked about his evidence that the system is not fully operational and explained that the installed cameras are not functioning and the system is not fully operating in respect to various functions that the technology will ultimately be able to provide.

[6] Mr Webb provided no evidence from the respondents. However, in oral submissions, Mr Webb submitted that the relevant employees, particularly the nominated Health and Safety Representatives (HSRs), had exercised their right to direct that unsafe work cease because of their concern for the health and safety of the drivers, by invoking s 85 of the Work Health and Safety Act 2011 (NSW). Accordingly, the employees had not engaged in, or threatened industrial action and the s 418 application should be dismissed.

[7] When I queried Mr Webb as to whether he intended to call evidence to support these submissions (assuming the Commission made an interim and not final orders), Mr Webb accepted that if the Commission was satisfied that the order should be made, a final order might be made, but the period of 3 months was excessive and unnecessary.

[8] In her submissions, Mrs James stressed the importance of the Guardian technology for ensuring not only the safety of the driver, but to the Australian public generally. She relied on a decision of Deputy President Clancy of 20 June 2018 [2018 FWC 3573] which involved the right of Toll to implement this exact system in its truck fleet in Victoria. The Deputy President, after three days of hearing, including evidence taken from expert witnesses, determined that Toll had the right to do so. Mrs James submitted that certain employees at the Mitchinbury site refuse to accept the Deputy President’s findings and decision and continue to resist the introduction of the Guardian technology. During Mrs James’ submissions I proposed a number of technical amendments to the proposed order and Mr Webb objected to the order extending to a refusal by the employees to participate in consultation or undertake the necessary training prior to full implementation of the technology. These changes were agreed to by Mrs James.

CONSIDERATION

[9] Section 418 of the Act sets out the circumstances which will trigger the making of an order that unprotected industrial action to cease or not occur or be organised. The section reads:

‘418 FWC must order that industrial action by employees or employers stop etc.

(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

Note: For interim orders, see section 420.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, the FWC does not have to specify the particular industrial action.

(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

(c) beyond that stop period;

the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.’

[10] I am satisfied, from the uncontested evidence of Mr Hancock that industrial action has occurred and is threatened to continue. That industrial action is being taken by the employees named as respondents to this application and, in my view, is unprotected industrial action. There is no evidence from the Union representing the employees, that driving the 6 trucks fitted with the Guardian technology is unsafe or a risk to their health and safety. Indeed, the uncontested evidence is that the fitted technology is not even fully operational and the cameras installed are not recording, and cannot record anything.

[11] Most significantly, I note that this very issue was the subject of detailed and comprehensive analysis and consideration by Deputy President Clancy, including the Deputy President taking evidence from expert witnesses; see [2018] FWC 3573. His Honour was asked to answer the following question, agreed to by the same parties in the matter now before me (although I note the Union was not named as a respondent to this s 418 application):

Does Toll have a right to further implement an infrared driver fatigue / distraction monitoring system, and an upgraded digital video recorder (with both an inward and outward facing camera monitoring system), having regard to the following concerns of TWU members:

Digital Video Recorder

1. The digital video recorder is unreasonably intrusive including but not limited to recording non-driving activities;

2. The capacity for footage or data captured by the digital video recorder to be used for a purpose other than to ensure safe driving;

Infrared Driver Fatigue / Distraction Monitoring System (“System”)

3. The infrared light emitted from the System may cause health problems including but not limited to damage to a driver’s eyes;

4. The lack of definitive proof that the infrared light emitted from the System is safe;

5. The lack of definitive studies into the effect of the infrared light emitted from the System during prolonged night driving;

6. The lack of definitive studies into the effect of the infrared light emitted from the System on sight;

7. The capacity for data captured by the System to be used for a purpose other than to ensure safe driving.

[12] His Honour concluded at paragraphs [374]-[377] as follows:

[374] Having considered all these factors, I am satisfied, on balance, they weigh in favour of the finding that Toll has the right to further implement an infrared driver fatigue / distraction monitoring system and doing so, having particular regard to the five concerns outlined, would be a reasonable step.

[375] As outlined above at [3], I order the agreed question for arbitration submitted to the Commission on 30 May 2017 is taken to be before the Commission and is the agreed question to be determined in the hearing of this matter.

[376] For completeness, in terms of the procedure adopted in determining the matter, I order pursuant to s.589(1) of the Act, that for the purpose of clause 15(d)(i) and (iv) of the Agreement, the evidence and submissions given in relation to the application made under the 2013 Agreement (C2017/1983) is taken to be evidence and submissions put before the Commission pursuant to the application filed pursuant to clause 15 of the Agreement.

[377] Finally, as I have outlined in my consideration above, I have had regard to the seven concerns of the TWU members but am nonetheless satisfied and conclude that Toll has the right to further implement an infrared driver fatigue/distraction monitoring system, and an upgraded digital video recorder (with both an inward and outward facing camera monitoring system).

[13] There was no appeal of that decision. It seems the employee respondents in these proceedings simply do not accept the Deputy President’s decision. I am satisfied that the conditions precedent under s 418(1) of the Act have been established. Accordingly, the Commission must make an order that the industrial action stop, not occur and not be organised. I intend to do so. In terms of the amended order annexed to the application, the order shall take effect from 6.00pm, 20 December 2018 and remain in force for 28 days thereafter.

[14] The final amended order was issued prior to 6.00pm on 20 December 2018. A copy of the order and the order for substituted service are attached to this decision as Annexures A and B respectively.

POSTSCRIPT

[15] I strongly recommend that in the coming weeks, as the Guardian technology is progressively introduced into the fleet of Minchinbury, that the drivers fully cooperate with the implementation of the program, including by participating in consultative processes and training in respect to the technology.

DEPUTY PRESIDENT

Appearances:

Mrs F James on behalf of the applicant.

Mr G Webb and Mr A Rodgers on behalf of the named respondents.

Hearing details:

2018.

Sydney:

20 December.

Annexure A

Annexure B

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