[2018] FWC 3573

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Toll Transport Pty Ltd T/A Toll Shipping
v
Transport Workers’ Union of Australia
(C2018/3232)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 20 JUNE 2018

Dispute about a matter arising under an enterprise agreement.

Background

[1] On 13 April 2017, Toll Transport Pty Ltd (Toll) filed an application under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (Commission) to deal with a dispute.

[2] Toll initially made application under clause 15 – Dispute resolution procedure of the Toll Group – TWU Enterprise Agreement 2013-2017 (the 2013 Agreement). The 2013 Agreement was approved by the Commission on 5 November 2013 and commenced operation on 12 November 2013. The nominal expiry date was 30 June 2017.

[3] On 8 December 2017, the Commission approved the Toll – TWU Enterprise Agreement 2017-2020 (the Agreement) which commenced operating from 15 December 2017. At a hearing before me on 9 February 2018, I indicated to the parties that I would require them to address me on how the dispute might be progressed, given this development. Toll subsequently filed an application pursuant to clause 15 – Dispute resolution procedure of the Agreement and the parties were broadly in agreement as to how the dispute might be progressed. The parties have agreed to direct referral of the dispute to the Commission (clause 15(b) of the Agreement) and pursuant to s.589(1) of the Act, I will order 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. Further, I will 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 as part of the hearing of this matter.

[4] The dispute relates to whether Toll has a right to further implement Guardian technology in its Toll Liquids (Liquids) and Toll Linehaul & Fleet Services (Linehaul) and DVR Cameras in its Liquids business. Toll describes the Guardian as an in-cab, real time, fatigue alerting and distraction monitoring system and the DVR Cameras as inward and outward facing vehicle cameras which record footage of the driver and the road. The Guardian technology relies on infrared technology to track driver eye behaviour with audio and seat vibration alarms which sound immediately to alert the driver of fatigue events. Toll is notified of the event in real time. The Guardian technology and DVR Cameras are currently in use in a number of locations across the Liquids business.

[5] The dispute was the subject of an initial conference on 20 April 2017, however the matter did not resolve and parties were advised to notify my chambers when a telephone mention was required. On 10 May 2017, Ms Katrina Anderson, legal representative for Toll, advised the matter remained unresolved and a directions hearing was sought. Following the directions hearing on 17 May 2017, I caused directions to be sent to the parties for the filing of material ahead of the hearing. The matter was initially set down for hearing for 15 August to 17 August 2017, however, to allow for amendments to the programming of material, the hearing was later re-listed for 12 to 13 October 2017.

[6] Following completion of the hearing on 13 October 2017, directions were issued for the filing of final written submissions. The final material was received on 8 November 2017.

[7] At the hearing, I granted permission for both parties to be represented by a lawyer, having had regard to the complexity of the issues raised in the proceedings. Mr Andrew Denton of counsel appeared for Toll and Mr Mark Gibian of counsel appeared for the Transport Workers’ Union of Australia (TWU).

[8] Witnesses giving oral testimony for Toll included Mr Sean Hepburn, Mr Paul Felsovary and Dr Stephen Dain. Doctor Dain gave his evidence via telephone from the United States.

[9] Witnesses giving oral testimony for the TWU included Mr Stephen Gibbs, Mr Dean Clifford, Mr Grant Hosking, Mr Bradley Osland, Mr Kevin Markham and Mr Colin Markham.

[10] All witnesses were the subject of cross-examination.

[11] As outlined above, there was a subsequent hearing on 9 February 2018, a conciliation conference took place on 13 March 2018 and final oral submissions were heard on 20 March 2018. My consideration of the issues raised by the application and my ultimate conclusion commences at paragraph [328] below.

Question to be determined

[12] On 30 May 2017, Ms Anderson notified the Commission that the parties agreed on the following question for arbitration:

“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.”

Relevant clauses in the Agreement

[13] Clause 15 of the Agreement provides:

“15. Dispute resolution procedure

(a) In the event that a Dispute arises, and subject to clause 15(b), the Parties will attempt to resolve the Dispute through consultation at the area within Toll's business at which the Dispute arises.

(b) Clause 15(a) will not prevent a Dispute being referred directly to the FWC under clause 15(c) where the nature of the Dispute requires the FWC's immediate involvement.

clause 15(b) applies, the Dispute may be submitted to the FWC for conciliation. For this purpose, the action the FWC may take includes:

(i) arranging conferences of the parties or their representatives at which the FWC is present; and

(ii) arranging for the parties or their representatives to confer among themselves at conferences at which the FWC is not present.

(d) If the Dispute is not resolved in conciliation conducted by the FWC, the FWC will proceed to arbitrate the Dispute and/or otherwise determine the rights and/or obligations of the parties to the Dispute. In relation to such an arbitration:

(i) The FWC may give all such directions and do all such things as are necessary for the just resolution of the Dispute. The FWC may exercise powers of conciliation, arbitration and declaratory relief in relation to the Dispute, including all related procedural powers such as those in relation to hearings, witnesses, evidence and submissions.

(ii) The FWC should apply the rules of evidence that would ordinarily apply to a hearing before the FWC under the Act.

(iii) Before making a determination, the FWC will give the parties an opportunity to be heard formally on the matter(s) in dispute.

(iv) In making its determination, the FWC will only have regard to the materials, including witness evidence, and submissions put before it at the hearing and will disregard any admissions, concessions, offers or claims made in conciliation.

(e) The decision of the FWC will be binding on the Parties subject to the following:

(i) There will be a right of appeal to a Full Bench of the FWC against the decision, which must be exercised within 21 days of the decision being issued or within such further time as the Full Bench may allow.

(ii) The appeal will be conducted in accordance with the legal principles applying to an appeal in the strict sense.

(iii) The Full Bench, or a single member on delegation, will have the power to stay the decision pending the hearing and determination of the appeal.

(iv) The decision of the Full Bench in the appeal will be binding upon the parties.

(f) Until the Dispute is resolved by agreement, conciliation or arbitration, the status quo before the Dispute arose will be maintained and work will continue without disruption. No party is to be prejudiced as to the final settlement by the continuance of work in accordance with this procedure.

(g) For the purposes of the procedure outlined in this clause, a Transport Worker may appoint a representative of their choice, which may include the Union. Toll will recognise any representative appointed by a Transport Worker”

[14] Clause 40 of the Agreement provides:

“40. Safe system of work

Toll and the Transport Workers will take all reasonable steps to ensure that all work performed by Transport Workers is performed in accordance with a safe system of work which must include, where appropriate but not necessarily limited to the following:

(a) Ensuring that all transport work is performed in accordance with documented safe scheduling plans and shift rosters that take account of the following:

(i) the trip to be undertaken by a driver;

(ii) the actual time required to perform the freight task safely;

(iii) the actual distance travelled to perform the freight task safely including any urban driving observance of any detour or road block;

(iv) fatigue-related safety concerns;

(v) the number and types of loads transported by the driver each trip and the time reasonably required to load and unload taking into account loading and unloading schedules and practices, delays and queuing times; and

(vi) the period and frequency and likelihood of mechanical interruptions.

(b) Ensuring, where appropriate, that all transport work is performed in accordance with documented systems which manage the risk of driver fatigue including, but not limited to:

(i) methods for assessing the suitability of drivers;

(ii) systems for keeping accurate records of the start and finish times of each shift or freight task performed by a heavy vehicle driver and the relevant dates over which a shift or freight task occurs and the total number of waking hours for each driver (regardless of whether or not those hours were paid or unpaid);

(iii) systems for reporting hazards and incidents;

(iv) systems for monitoring driver's health and safety;

(v) training and information about fatigue that is provided to drivers;

(vi) systems for managing loading and unloading schedules and practices, including queuing practices;

(vii) systems for reporting accidents, near misses, possible hazards or mechanical failures and contingencies to manage the risk of driver fatigue; and

(viii) safe driving plans and a drug and alcohol policy consistent with applicable legislation and industrial instruments.”

Submissions of Toll

[15] It was submitted on behalf of Toll that the question for the Commission to determine is “whether Toll has a right and whether that right is to further implement certain technology and then having regard to those seven expressed concerns that have been submitted.” 1 As to the question referring to whether Toll has a right to further implement these relevant technologies, this is because both of these technologies are currently in use within Toll.2

[16] Toll submitted that clause 40 of the Agreement places an obligation on Toll and employees to take all reasonable steps to ensure that all work is performed in accordance with a safe system of work. It says its initiatives fall squarely within clause 40 of the Agreement and the dispute can be resolved in Toll’s favour.

[17] Toll submitted that its initiatives represent an exercise of management prerogative, a principle enshrined in the jurisprudence of the Commission and its predecessors for decades. It said the Commission should not interfere with the right of Toll to manage its business, unless it is seeking something from its employees which is plainly unjust or unreasonable. Toll said this includes any decision about upgrading vehicle monitoring systems in the manner sought. Toll submitted the reasons the proposed upgrades to the vehicle monitoring system are not plainly unjust or unreasonable are:

• The proposed upgrades are aimed at reducing risk, noting that the road transport industry is an inherently risky industry and fatigue is a significant risk factor for Toll;

• The upgrades will be effective as the Guardian system can lead to a 95% reduction in safety incidents arising from fatigue and the upgrades ensure Liquids and Linehaul remain at the forefront of industry safety practices;

• The technology is already widespread, with the DVR Cameras and Guardian technology being used in a number of locations across the Liquids business and other parts of the Toll Group companies. Further, Liquids is subject to a number of commercial contracts which require use of the Guardian technology and a number of industries and direct competitors already use the Guardian technology;

• There are no barriers to implementation as there are no contractual or statutory barriers to the exercise of management prerogative Toll proposes. Further, the Agreement does not restrict Toll’s ability to implement the Guardian technology or the DVR Cameras, with the technology designed to address key requirements of employees’ jobs;

• Employees’ rights are protected as there are various procedures which set out precisely how Liquids will collect, store and use any data obtained through the technology, with Linehaul proposing to adopt procedures which largely mirror those existing in Liquids. Also, employees will be notified prior to the technology being activated in their vehicles; and

• Guardian is safe and Toll has provided the TWU with three reports regarding the technology, all of which confirm there are no health risks associated with the use of the technology. Further, international testing has been undertaken regarding the precise Guardian technology which Toll is seeking to implement which confirms the infrared light emitted from the Guardian system is safe for the human eye and there is no risk associated with it.

[18] Toll submitted the proposal to further implement the Guardian technology in its Liquids and Linehaul businesses and DVR Cameras in its Liquids business is contemplated by the Agreement; and is in any event not plainly unjust or unreasonable. Accordingly, it submitted the Commission should not interfere with its decision to further implement the technology.

[19] Toll’s closing submissions are considered further below, commencing at [194].

Evidence for Toll

Doctor Stephen Dain

[20] On instructions by Toll’s legal representative to provide an independent expert report in respect of the proceedings, Dr Dain filed a statement and report prior to the hearing. Doctor Dain outlined his professional qualifications, being a registered optometrist currently in the position of Emeritus Professor, School of Optometry and Vision Science at the University of New South Wales. Doctor Dain said a proportion of his research publications address occupational and environmental optometry, which deals with the interaction of eyes and vision with the environment. He also advised he chairs the Standards Australia committee on eye and face protection.

[21] Doctor Dain was provided with the following reports regarding Guardian technology ahead of providing his own report:

a) Report of Dr Sergio Leon-Saval and Dr Maryanne Large (both of whom are Physicists at the University of Sydney) dated 20 September 2013;

b) Report of Dr David Sliney (Consulting Medical Physicist, Optical Radiation Hazard Analysis) dated 10 November 2013;

c) Further report of Dr Sliney dated 19 July 2015; and

d) An Intertek Test Report dated 29 July 2015.

[22] Doctor Dain noted that Dr Sergio Leon-Saval and Dr Maryanne Large are not known to him, though their report contains all the elements he would expect to see in such a report. Regarding Dr David Sliney, Dr Dain said he was very well known to him and that “[h]e is one of the foremost authorities in the world on optical radiation safety and protection.” 3 Doctor Dain said he was confident in relying on the aforementioned reports.4

[23] Of Intertek Testing Services Hong Kong Ltd (Intertek), a testing laboratory well-known to Dr Dain, he said they are ISO 17025 accredited for many of their testing activities, and while not accredited for these measurements (the measurement of the light emitted by the relevant devices 5), “their accreditation in other areas means that their accreditation authority will pay attention to their work in this area and exercise some quality control of it as is required.”6 Doctor Dain stated in cross-examination that while he would have a higher level of confidence if Intertek was accredited for these particular measurements,7 “the fact they’re accredited in other areas gives them some credence about their measurements in this area.”8

[24] Doctor Dain said the mechanism of damage relevant to this matter ‘is thermal’ and “[i]n the occupational environment, it is mainly lasers that pose a thermal risk to the eye.” 9 Doctor Dain said of the applicable standards to lasers, Class 1 lasers are the equivalent of the “Exempt” category10 and “can be viewed without any risk of damage whatsoever. On the other hand, Class 3 and Class 4 lasers are, at least in theory, hazardous to eyes and controls and personal protection are required.”11 Doctor Dain submitted that the levels from IREDs are “substantially less than the levels of Class 2, 3 and 4 lasers. In addition, IREDs have been used in eye movement recorders for at least 40 years.” Doctor Dain asserted he “would not expect such a system as the Guardian as being anything other than exempt.”12

[25] Of the question, ‘does the Guardian meet the Australian Standard, Photobiological safety of lamps and lamp systems,’ Dr Dain said “the thermal hazards to the crystalline lens and retina are the appropriate concerns.” 13 On reviewing the relevant data, Dr Dain concluded the “Guardian meets the Exempt category (No-Risk) of AS/NZS IEC 62471:2011 by a substantial margin.”14 Doctor Dain also said “the Guardian, as described, is suitable for continuous use without risk to health”15 and he knows “of no reason to be concerned, even at the most remote level, about any affects, adverse or advantageous, from the levels of infrared from the Guardian”16 irrespective of whether prolonged driving is taking place by day or by night.17 Doctor Dain reiterated that there “is no possibility for the infrared radiation, which is emitted from the Guardian, to have any adverse effects on a driver’s sight.”18

[26] In light of the responses Dr Dain provided above, he was asked in his report if any of his responses would vary, considering he has not tested any vehicles which are equipped with the Guardian in the Liquids and Linehaul businesses. Doctor Dain said he “cannot imagine any basis upon which [his] responses…would vary... .” 19

[27] Of concerns raised by the TWU in its evidence, Dr Dain was asked questions regarding a number of additional matters for inclusion in his report, including that Guardian technology has not been tested in the discrete circumstances which relate to the manner and way in which work is performed at Toll. Of this, Dr Dain said “[t]he significant relationship is the distance between the sources and the eye, the rest of the environment is irrelevant. The sources have been shown to represent no risk to the eyes and vision at 20 cm distance, where the typical use is said to be between 80 and 120 cm. If the characteristics of the vehicle mean that the Guardian is placed within 20 cm of the eye, then a further analysis will need to be done to illustrate that the Guardian is, as I would expect, still in the exempt category.” 20 Doctor Dain further outlined that “[f]or these thermal hazards, the safety issues beyond the longest time limit set do not increase… [w]hat is safe at 1000s or 10s (as applicable to the crystalline lens or retina respectively) is safe for ever.”21 Of the need for specific testing in the Toll vehicles for Dr Dain to be satisfied that Guardian technology is safe for continuous use, Dr Dain said “[s]ince the hazard analyses provided indicate substantial margins of safety and the only influence on the exposure of the eye are the distance between the unit and the eyes of the driver and I cannot envisage any other factors that might increase the exposures so much as to compromise safety. … [t]here is, therefore, no need to conduct specific testing and, to put it stronger, no point in additional testing.”22

[28] In response to a question pertaining to average hours of work, which may be up to 14 hours in some circumstances, and Dr Dain’s opinion regarding safety of the Guardian technology, Dr Dain said “[e]ven if the change from 8 to 14 hours were significant, this could be compensated for by halving the permitted values so that instead of a 1/500 safety margin for the crystalline lens, you would be left with a 1/284^th safety margin. Still suitable for the Exempt classification.” 23

[29] Doctor Dain also addressed in his report the TWU’s contention that the relevant Australian Standard is presently under review, which could conceivably result in the removal of the Guardian technology’s Exempt classification. Doctor Dain said the provisions are consistent with the highest authority, the International Commission on Non-Ionizing Radiation Protection and the “limit values for no-risk (used for the Exempt category…) have remained unchanged for decades… .” 24 Doctor Dain went on to say “[t]he values of maximum permissible exposure have remained the same over that time and for all authorities and I have absolutely no reason to assume that they will change now.”25 Doctor Dain concluded “I do not consider that there is any meaningful prospect of the Standard being reviewed such that the Guardian technology no longer falls within the Exempt classification.”26

[30] During cross-examination, Dr Dain conceded he had not personally conducted testing of the relevant device. 27 He said he had done testing on LEDs but not in infrared emitting diodes.28 In response to being asked whether the opinion expressed is based upon the theory of the way in which the eye works, but not an empirical study of the use of this kind of device over a long period, Dr Dain said “where the infrared comes from, the device that it comes from, is not relevant. It’s simply…the amount of the radiation that’s being absorbed in the structure, is what’s important. What kind of device it’s generated from…makes no difference.”29

[31] Doctor Dain acknowledged that drivers instinctively have some concern in relation to the device, 30 though was “happy to explain why this is not a problem, and to allay their concerns.”31 He said one matter he would explain to drivers is that “it is not like a biochemical hazard where a bit of a dose today could compound with a bit of a dose tomorrow…and there is a certain amount of additivity there. …With this hazard, which is a thermal hazard, that simply doesn’t happen. So that really whether the worker…drives an eight-hour shift or a 14-hour shift, is absolutely irrelevant. And its only if anything has not happened by the 1,000 or 10 seconds, then you would – if it hasn’t [a]risen in that time, then you could be exposed to it for 100 years, and nothing would happen, because the temperature hasn’t risen sufficiently.”32

[32] In response to being asked about whether he was aware of any empirical studies examining persons who have been exposed to the device over an extended period of time, Dr Dain said he was not and that he would not expect to see such reports “because there is no effect anticipated. …[when there is] a predictable null outcome.” 33 Doctor Dain acknowledged that further testing or study of the device could be done, though said “it’s an exercise in futility. It’s an exercise in the predictable. …I am 100 per cent confident in the results that you would come to at the end.”34

[33] In the course of cross-examination, it was put to Dr Dain that some literature had been provided by the drivers which indicated different considerations may arise for persons with photosensitive eyes and there is a potential for devices which do not cause adverse effects for most people, to raise concerns for people with photosensitivity. Doctor Dain said “photosensitivity is related to the photochemical effects” 35 and that photochemicals “have absolutely no influence on the thermal hazards so these are not relevant to the hazards that we’re talking about here.”36 Doctor Dain went on to say he was not aware of any studies that suggested eye irritation from use of devices of the relevant nature37 and that furthermore, he “would not associate dry eyes with the use of such an instrument.”38 Doctor Dain suggested he would be looking at a lower blink rate as being the primary cause of dry eyes, as for long distance drivers, their blink rates would likely be down quite substantially due to their concentration levels.39

[34] In response to drivers seeing a red light being emitted from the device, Dr Dain said “in terms of effects on the eye, I don’t see any consequence of this.” 40 It was also put to Dr Dain that some of the vehicles, in addition to the Guardian, have other cameras with LED lights in them as well, situated in relatively close proximity to the face. Doctor Dain said he “did a calculation as to how many LEDs you would need there to reach something that was hazardous. …it’s a number that is just impractically large, so yes, the other devices in there will add in but there is so much of a margin of safety in this that it’s still a high margin of safety.”41

Mr Sean Hepburn

[35] Mr Hepburn, National Safety Manager for Liquids, said its operations involve the provision of national bulk road tanker services, specialising in the transport of dangerous goods. Freight types which are transported by Liquids include fuel, bulk chemicals and industrial gases. Mr Hepburn said the freight is transported in large, heavy vehicles, including semitrailers, B-doubles and three and four trailer road trains, with approximately 600 Tanker Drivers employed by Liquids to transport the goods. Mr Hepburn said drivers typically perform short distance driving work in metropolitan areas.

[36] Mr Hepburn said Liquids is proposing to upgrade its existing In-Vehicle Monitoring System (IVMS), which involves the following pieces of technology:

a) Guardian – a real time in-cab fatigue monitoring and alerting system;

b) MTData – a driver support, GPS and vehicle monitoring system;

c) DriveCam – inward and outward facing cameras in vehicles which record 12 seconds of footage of the driver and the road in the event of a high G-force event (footage of which is transmitted to the manufacturer in real time and made available quickly to Toll 42); and

d) DVR Cameras – inward and outward facing cameras in vehicles which record footage of the driver and the road at all times while a vehicle’s engine is turned on (including when the key is in the ignition and turned on to the accessories 43).

[37] Mr Hepburn said Liquids is proposing to further implement the Guardian technology across its business and replace DriveCam with DVR Cameras. During cross-examination, Mr Hepburn said having the inward and outward facing cameras is required under certain contracts with customers. 44

[38] Mr Hepburn provided a description of the Guardian system as “a real time in-cab fatigue monitoring and alerting system which monitors the driver to reduce the incidence of micro sleeps (fatigue events) and to monitor for any major distractions to their concentration (distraction events).” 45 He said it uses face and eye tracking algorithms and where movements exceed certain parameters, an alert is activated. Mr Hepburn’s evidence of the parameters of movements which would activate alerts were as follows:

“(a) Fatigue events: Eye closure for greater than 1.5 seconds, when a driver is travelling faster than 6.4 kilometres per hour;

(b) Distraction events: Glances away from the road for more than 4.5 seconds, in circumstances where the driver is travelling faster than 16 kilometres per hour; and

(c) Field of view events: When the camera is unable to adequately see a driver’s face for 10 minutes or more, in order to monitor fatigue and distraction events.” 46

[39] Mr Hepburn said the Guardian relies on a console mounted infrared camera to track the above events, with the camera on the dashboard. A computer unit and seat vibration unit are under the seat. When a fatigue event occurs, an alert in the form of an audible alarm and a vibration of the seat takes place. Mr Hepburn said in the case of a distraction or field of view event, the driver is not alerted at the time, but the footage is still reviewed. Liquids is notified of any fatigue or distraction event in close to real time, following a permitted two minute review period by the manufacturer in America. In the case of a genuine event, Toll would be contacted via telephone and the footage sent via email.

[40] Of MTData, Mr Hepburn outlined this is used for driver support and vehicle monitoring, through monitoring location and direction, distance and speed, fatigue break times, driver behaviour and G-force. This is not a camera system.

[41] Mr Hepburn described DriveCam as capturing vision of the driver and the road, while also recording audio. He said it is a two-way camera system which allows Toll to capture footage before and after any events, such as accidents, though it only records footage where there is an event that triggers the G-force sensor threshold. Where this occurs, the camera records for a period of 12 seconds – eight seconds before and four seconds after the event. Mr Hepburn said Standard Operating Procedure 1 (SOP-1) details how footage obtained through DriveCam can be accessed and how it is stored.

[42] Mr Hepburn said DVR Cameras are similar to the DriveCam Cameras, however, they record on a continuous loop while the vehicle is turned on and the footage is stored for approximately two weeks. Mr Hepburn said there is currently no remote access to any footage obtained through the new system and it cannot be viewed online, rather it must be physically retrieved from the memory card and viewed using specific inscription software. Mr Hepburn said the DVR Camera technology is preferred by Liquids because:

“(a) Given the dangerous nature of the goods which are transported by Toll Liquids, our customer base requires that all electricals (other than the engine) be turned off prior to entering a customer’s terminal. A number of issues have been experienced in turning the DriveCam technology on and off, making it not particularly suitable for Toll Liquids’ requirements;

(b) Toll Liquids has struggled to support the DriveCam technology from a technical perspective, and as a result, monitor and fix issues with the technology in a timely manner. This is because the DriveCam technology is being phased out of the broader TRGL line of business, which is responsible for monitoring and servicing the technology for Toll Liquids;

(c) In a number of cases, Toll Liquids has found that the footage obtained from the DriveCam system has not been enough to obtain a thorough understanding of the circumstances leading up to an accident or incident. In these cases, the eight seconds of footage that is recorded has been insufficient to properly understand events leading up to the incident; and

(d) Accidents or incidents have occurred without DriveCam recording any footage, because the event does not register as a G-force event. This is a result of the size of the vehicles which are used in the Toll Liquids fleet. Toll Liquids’ vehicles are so heavy that they may not feel or register an impact to the same degree that a smaller vehicle would in the same or similar circumstances.” 47

[43] Mr Hepburn said the DVR and Guardian technology is now installed and operational in approximately 225 vehicles in the Liquids business in:

• Newcastle;

• Wagga Wagga;

• Western Australia;

• Northern Territory;

• Tasmania;

• Brisbane Fuel;

• Brisbane BOC;

• Sydney Fuel;

• Port Kembla; and

• half of its Adelaide vehicles. 48

[44] As for Victoria, Mr Hepburn said the DVR and Guardian technology is installed in its approximately 60 Altona/Newport and Dandenong vehicles, but the Guardian technology is not operational. 49

[45] Mr Hepburn said as part of the most recent safety scorecard for the Liquids business, fatigue is within the top five safety risks, along with motor vehicle accidents, spills, fires and vehicle and pedestrian accidents. Mr Hepburn outlined various events, dating back to 2011, which have led to the decision to implement Guardian technology. Three examples given by Mr Hepburn were incidents where fatigue and a micro-sleep were identified as causes of the serious incidents. Another example was where a third party driver had caused a serious accident which resulted in a prolonged police investigation which Mr Hepburn submitted could have been avoided if there was an in-cab and forward facing cameras.

[46] Mr Hepburn said it appears the TWU is also acutely aware of the safety risks faced by workers in the road transportation industry. He attached to his statement an article published by the TWU to its website on 12 February 2017 50 which notes that Melbourne sleep researchers are developing a roadside test for fatigue which police could use. Mr Hepburn drew the Commission’s attention to the following paragraphs in that article:

“Until recently, all that could be done was to advise sleepy drivers to take a powernap, as there was no way to scientifically determine whether a motorist was too tired to drive.

But by tracking eye movements, including the duration of blinks and how eyes scan the road, driver fatigue levels can now be measured.” 51

[47] Mr Hepburn submitted the Guardian technology “is a proactive safety tool” which has the capacity to reduce safety incidents related to fatigue by 95%. 52 Mr Hepburn attached a report from Monash University’s Accident Research Centre which, in conjunction with the manufacturer, he said involved research into the effectiveness of the Guardian technology. The report details that “[r]elative to no feedback being provided to drivers when fatigue events were detected, in-cab warnings resulted in a 66% reduction in fatigue events, with a 95% reduction achieved by the real-time provision of direct feedback in addition to in-cab warnings.”53

[48] Mr Hepburn said, based on his own research, he is aware that Guardian technology is currently being used by a number of Toll’s competitors, including Linfox, K & S, Kalari, Ron Finemore Transport and Wettenhalls.

[49] In cross-examination, of the Guardian system, Mr Hepburn said there are two IR pods, each with three light emitting diodes which do not direct light into the driver’s eyes, but rather across the upper part of their body. 54 He then said it detects eye closure for greater than 1.5 seconds, as the light is directed to the face, including the eyes (though it is not active).55 Mr Hepburn said if a fatigue event is detected, an in cab alarm will sound and the seat will vibrate; if there is a distraction event or a field of view event, there is no alarm or seat vibration but the footage would be sent to the manufacturer and Toll alerted.56

[50] Also in cross-examination, Mr Hepburn said he was not sure whether Toll had sought approval or authorisation from the manufacturers of the vehicles as to whether it is appropriate to install the various elements of the Guardian system. 57 Mr Hepburn said he was aware there are standards and guidelines involved in making any alterations to the seat or internal aspects of the vehicles, though was not personally aware that Toll has ascertained from the manufacturer whether this is appropriate.58

[51] In relation to the DVR Camera technology, Mr Hepburn said this provides more extensive camera footage, with greater capacity to track events leading to an incident which may in turn decrease investigation times and ensure drivers are not subjected to unnecessarily lengthy investigations. Mr Hepburn said the DVR Camera technology can also be used in the training and coaching of drivers.

[52] Mr Hepburn also addressed use of the video footage obtained through the upgraded IVMS and attached the Standard Operating Procedure for Vehicle Camera Safety Systems (SOP-1). 59 The procedure outlines that the Branch Manager or Most Senior Manager at Site is responsible for ensuring the use of the footage is managed according to Toll Privacy Policy, that only authorised persons have access to the footage and that it is collected and used for the purposes for which it was recorded, amongst other responsibilities. It is noted in the procedure that inappropriate use or circulation of footage beyond authorised personnel shall be subject to disciplinary action, up to and including termination of employment. Acceptable Use is outlined in the procedure and outlines that “[d]rivers shall be made aware that the vehicle they are driving is fitted with camera(s)…” and that footage will be collected and used for:

• Monitoring fatigue, distractions and field of view events, as identified using a Guardian system

• Investigating driving incidents, accidents and events

• Investigating any other incident involving the driver of the vehicle e.g. complaint by a member of the public or external authority

[53] In his statement, Mr Hepburn added the following points regarding use of the video footage:

• To coach drivers in order to improve safety outcomes, driver skills and behaviours

• To help exonerate drivers involved in an incident, and to recognise driver skill and performance

• When deemed appropriate, as evidence to discipline drivers (for example, where poor behaviour and safety issues are identified, or applicable road safety laws or Toll policies and procedures have been breached). But in practice, that the vast majority of disciplinary matters which might arise would be related to safety breaches.

[54] In cross-examination, Mr Hepburn said of investigating events, it is predominantly safety events which would be the subject of investigation, though he conceded the technology would be used by Toll to investigate any event it thinks is appropriate to investigate. 60 Mr Hepburn said in terms of the intent of the SOP, it is that there must actually be a reason why Toll would go to the DVR Camera recording and the Guardian system would give that reason because there is an event.61

[55] The procedure also details how video footage is to be accessed, including viewing taking place in a closed office or room, preferably with no one else present other than those who are authorised to view the footage, that discussions regarding the footage take place in the closed office or room, that footage should never be shown, forwarded or discussed with anyone other than the subject of the surveillance or other authorised persons and that footage must not be downloaded by, copied or distributed to anyone not authorised to view the footage. In cross-examination, Mr Hepburn affirmed the procedure can be reviewed at any time and can be changed as Toll thinks appropriate. 62

[56] In re-examination, Mr Hepburn said SOP-1 is a new policy, drafted out of experience gained in Western Australia where it has been in use for some time. 63 Mr Hepburn said he was involved in the consultation when the policy was being formulated, together with the HR manager, project manager, general manager, HSC committees, drivers and the TWU.64 Mr Hepburn said SOP-1 was not amended following the consultation process.65

[57] Mr Hepburn said in addition to SOP-1, Liquids has two further procedures, “The Toll Liquids – Guardian Fatigue & Distraction Procedure” (SOP-2) and “The Toll Liquids – Guardian Fatigue & Distraction Driver Procedure” (SOP-3). Mr Hepburn said each procedure is intended to ensure that employees’ rights are subject to appropriate protections with respect to the Guardian technology and the DVR Cameras. Mr Hepburn said SOP-2, following consultation, was amended regarding notification of fatigue events after hours. 66

[58] Mr Hepburn said that Seeing Machines, the manufacturer of the Guardian technology, provided Liquids with a report entitled “Test report – IEC 62471 – Photobiological safety of lamps and lamp systems” (Intertek Report). 67 Mr Hepburn submitted that Seeing Machines has confirmed that Guardian technology is the precise technology that Liquids is seeking to further implement. He said the Intertek Report confirms the technology is compliant with the international standard, which is identical to the Australian standard and based on his review of the Intertek Report, the technology has been classified as being in the Exempt Group (i.e. has no risk associated with it).

[59] When it was put to Mr Hepburn that Intertek is not accredited to do the relevant type of testing, he said he was not aware of this. 68

[60] In his supplementary witness statement, 69 Mr Hepburn addressed concerns raised in witness statements filed by the TWU.

[61] First, in response to concerns raised in the statements of Mr Steve Gibbs 70 and Mr Dean Clifford71 about workers being exposed to the infrared emissions from the Guardian for periods of 10 to 12 hours, Mr Hepburn said Liquids Tanker Drivers would not be continuously exposed to the Guardian for a period of 10 to 12 hours per shift. Based on a 12 hour shift, Mr Hepburn submitted he would not expect a Liquids driver who performs work in a metropolitan area to be exposed to the Guardian for more than 5 hours per shift. This was based on the prescribed rest breaks and also that Tanker Drivers are required to load and unload the goods, which respectively take approximately one hour, during which the vehicle’s engine is turned off (meaning the Guardian is also turned off) and the Tanker Driver is outside the vehicle performing work.

[62] Mr Hepburn said he caused a report to be generated to verify the amount of driving work performed during a 12 hour shift in metropolitan Melbourne. From August 2016 to July 2017, the report shows the ignitions in the tanker fleet were on for an average of less than four hours.

[63] Mr Hepburn acknowledged that drivers performing regional deliveries or linehaul work would be performing driving work for around nine to 10 hours of a 12 hour shift, though would not be continuously exposed to the Guardian for that time in light of prescribed work and rest breaks.

[64] In cross-examination, Mr Hepburn acknowledged the concern of drivers about the long-term effects of the technology which is directed at their face and eyes. 72 He said Toll had provided the driver committee with the Wirriga Report, authored by Dr Leon-Saval and Dr Large and prepared for BHP Billiton in relation to a truck which operated at a mine site. When it was put to Mr Hepburn that a number of witnesses for the TWU had spoken to the authors of the report who had cautioned against relying on the report in a context outside the subject of that study, Mr Hepburn said he had not personally made any enquiries with Dr Leon-Saval or Dr Large about their report and he was unsure if Toll had.73 Mr Hepburn confirmed that Toll would not commission any study in relation to Toll’s particular vehicles74 and has not considered having a specific eye exam form part of the annual medical testing its drivers undertake, although he said eyesight testing was already part of that program.75

[65] Second, Mr Hepburn addressed Mr Clifford’s contention 76 that there are no clear policies which stipulate what action will be taken if a Tanker Driver has three fatigue events, nor any obligation on Toll to ascertain the reason for the fatigue events or to manage the issue. Mr Hepburn said SOP-2 sets out what will occur and places an obligation on Toll and the Tanker Driver to manage the issue, including discussing fatigue management training which has been undertaken and any matters believed to be impacting on the driver’s fitness for duty.

[66] In cross-examination, Mr Hepburn acknowledged none of the policies, which he annexed as relevant to his statement, provide guidelines or processes to be followed in the event there is a referral for medical assessment or disciplinary action. 77

[67] Third, as to the TWU’s contention there are no clear policies regarding false alarm warnings from the Guardian, Mr Hepburn said that the footage would be filed by the manufacturer and no further action would be taken. He said the only way Liquids would be aware of false alarms is through wider data reporting or if they are reported by the Tanker Driver. Mr Hepburn said the reporting is relied upon so corrective action may be taken to minimise the number of false reports, for example by adjusting the camera position. As no further action is taken against employees, Mr Hepburn said there was no need for Liquids’ procedures to deal with this.

[68] In cross-examination, Mr Hepburn said if a fatigue event is detected, the manufacturer in the United States will review the footage and determine, through a set of criteria, whether they believe there has been a genuine fatigue event or not. 78 Mr Hepburn acknowledged that despite what may subsequently be determined to be a false fatigue event, the driver would be alerted that the system has recorded an event as the alarm would sound and their seat would vibrate.79 Mr Hepburn said it was Toll’s policy that the driver would then immediately pull over and contact their supervisor, though if the manufacturer determines the event to be false, Toll is not contacted.80 Mr Hepburn said the nature of the conversation between the driver and supervisor might be “there’s been no report through, must have been a false alarm. How are you feeling? etc.”81

[69] Fourth, Mr Hepburn addressed concerns of Mr Kevin Markham, 82 Mr Grant Hosking83 and Mr Gibbs84 regarding the possibility of improper use of the Guardian by Toll. He said the Guardian is primarily aimed at enhancing safety and while he could not rule out the prospect Toll would discipline a Tanker Driver as a result of footage obtained, its scope to do so would be very limited as there would need to be a genuine fatigue or distraction event for Toll to receive any footage from the Guardian and further, the footage Liquids receives is very limited. Mr Hepburn said he was not aware of any misuse of DriveCam and has not been advised of any concern held by Tanker Drivers. Mr Hepburn noted that in the event a Tanker Driver held concerns about misuse of the Guardian, they could raise an internal complaint or escalate a dispute in accordance with the Agreement.

[70] Fifth, Mr Hepburn responded to reports contained in the statements of Mr Kevin Markham, 85 Mr Brad Osland,86 Mr Hosking87 and Mr Clifford88 of drivers becoming distracted and anxious as a result of the vibration of a driver’s seat which occurs when there is a fatigue event. Mr Hepburn said Guardian technology has been in a range of Liquids vehicles for some time now and he is not aware of any concerns raised by Tanker Drivers regarding the alarms making them anxious. He said he has heard complaints about drivers being annoyed when the alarm sounds and the vibration occurs in circumstances of a non-genuine event. Mr Hepburn considered it unlikely the alarm would cause an “almighty shock” or cause a Tanker Driver to be distracted, as the vibration is small with a high frequency.

[71] Sixth, Mr Hepburn addressed the TWU’s contention there is no pressing need for Toll to implement further fatigue management systems, because it already has in place a strong system. Mr Hepburn said it is accepted there are a range of measures in place designed to address fatigue management, though fatigue continues to be one of the top five safety risks facing the business. He said from 1 April 2016 to roughly the end of February 2017, the Guardian system has intervened in respect of 88 genuine fatigue events. In tendering his witness statement at the hearing on 12 October 2017, Mr Hepburn said as the technology has been installed in more vehicles, they have seen an average of between 10 to 15 fatigue events to be acted upon per month from April to September, although the latest September number has gone down to approximately 10 per week. 89

[72] Seventh, of Mr Kevin Markham’s concern 90 that Tanker Drivers will only be alerted of a distraction event after 4.5 seconds, Mr Hepburn said these parameters have been set by the manufacturer following testing and trials of the technology in various environments. If the time threshold was decreased, it would likely mean there would be more false events.

[73] Eighth, Mr Hepburn addressed concerns raised by Mr Osland 91 and Mr Hosking92 regarding placement of the Guardian. He said of the vehicles in Liquids that have Guardian installed, the camera and pods are on the dashboard and do not block the sun visor in any way. Of the concern that the location of the camera is dangerous because of sharp edges and corners,93 Mr Hepburn said he is not aware of any instance where the technology has dislodged and has not had any concerns about this raised with him. He said the technology is installed by the manufacturer and securely fastened to the dashboard. Mr Hepburn also said of Mr Clifford’s submission that the camera position is invasive and distracting being 68cm from his face,94 that the technology was moved following concerns being raised that it created a blind spot. Mr Hepburn said since moving the technology, he has not been informed of any concerns about it being off-putting or distracting, despite the technology having been installed in the majority of the Liquids fleet for some time.

[74] Ninth, of the other driver monitoring systems available raised by Mr Hosking 95 and Mr Colin Markham,96 Mr Hepburn said following extensive testing, Guardian technology was found to be the most robust technology and that it is less intrusive to drivers compared to other technology. Mr Hepburn said if Toll were to use the Volvo technology, of which there are a very small number of trucks, it would necessitate Liquids replacing its existing fleet with a fleet of Volvo trucks.

[75] Tenth, of Mr Clifford’s submission that there is no need for the DVR Camera technology in light of incidents being very rare and that they are usually the result of external forces rather than Liquids’ Tanker Drivers being at fault, 97 Mr Hepburn said he is aware there are, on average, 90 to 100 motor vehicle accidents nationally per year involving Liquids’ Tanker Drivers, ranging from minor accidents to fatal accidents. He said irrespective of the cause, it does not eliminate the need for the technology so events leading up to an incident can be quickly identified, which decreases investigation times and associated costs and avoids Tanker Drivers being subjected to unnecessarily lengthy investigations.

[76] Eleventh, as to concerns raised by Mr Gibbs 98 and Mr Clifford99 about DVR Cameras recording footage at all times when the engine is on or when the key is turned to accessory mode and thereby being monitored while on breaks, Mr Hepburn said while it is common for drivers to have breaks in the cab of their truck, any footage from the DVR Camera cannot be viewed online, nor can it be accessed remotely. To access the footage, it must be physically retrieved from the memory card in the tanker. Mr Hepburn said footage would only be obtained and reviewed if there is a need to, for example, following an accident, an incident or a complaint being made by a member of the public. He said Toll will not have designated persons reviewing footage on a day-to-day basis. Mr Hepburn also said that if a driver was to sit in the passenger seat while having their break, a good proportion, if not all of their body, would not be recorded by the DVR Camera and any concern could be alleviated.

[77] In cross-examination, Mr Hepburn said Toll had explored the possibility of the cameras not operating during break periods, despite the key being in the ignition, however the response from the manufacturer and installer was that the cameras on the MT Data unit and the DVR system are technically non-essential equipment and when entering a fuel terminal all non-essential equipment must be turned off. 100

[78] Twelfth, Mr Hepburn accepted Mr Clifford was concerned 101 the DVR Camera installed in his vehicle has already been activated. Mr Hepburn said following the current dispute proceedings, the TWU and Liquids reached an agreement that the DVR Camera technology would be activated, but until the dispute was resolved, it would only be utilised in the event of a major accident or incident.

[79] The penultimate issue addressed by Mr Hepburn was Mr Clifford’s contention 102 that current policies in place regarding DVR Camera technology are general policies, rather than policies which specifically deal with the DVR Camera technology. Mr Hepburn said SOP-1 pertains to the IVMS and that the TWU was given an opportunity to provide feedback on the drafting of SOP-1. Mr Hepburn said the TWU at no stage raised any concerns of this nature.

[80] Lastly, of Mr Gibbs’ 103 and Mr Clifford’s104 concerns of potential misuse of footage obtained through the DVR Camera technology by Toll, Mr Hepburn said SOP-1 is intended to ensure employees’ rights are protected and contains sanctions to guard against inappropriate use or distribution of footage. Mr Hepburn said to the extent it is suggested DriveCam has been misused by Toll, he was not aware of this occurring and has not been made aware of any concerns of this nature held by Liquids’ Tanker Drivers. Mr Hepburn concluded that any concerns about misuse could be raised with the union, an internal complaint could be made or the dispute could be escalated in accordance with the Agreement.

[81] In cross-examination, Mr Hepburn said Toll has not specified in any policy that it will not view or access or utilise footage of a driver while they are on their break. 105 He said Toll reserves the right to view and utilise the footage for any appropriate purpose per the SOP.106

Mr Paul Felsovary

[82] Mr Felsovary, National Risk Manager for Linehaul, started with the company in June 2016. He said in respect of Linehaul, this dispute only involves the implementation of the Guardian system, and not the upgraded digital video recorder. Mr Falsovary said the DriveCam system is used in Linehaul, though is only installed in the more recent vehicles to the fleet, with the intention that any new vehicles will also have the technology installed. 107 Mr Felsovary also said “Fleet Services” is not relevant to this application.

[83] Mr Felsovary said Linehaul provides long-distance transportation of freight for internal Toll customers and other entities within the Toll Group. He said generally, trips are greater than 500 kilometres and the vehicles range from B-double trailers to road trains. Linehaul drivers, of which there are approximately 200, work through the night to move Toll freight over long distances, though some longer journeys might also see work performed during the day. The Linehaul operations are based in Altona, Victoria, though there other Linehaul locations around Australia, with drivers based across Australia. Mr Felsovary appended to his statement a range of polices, standards and procedures relating to health and safety which I have had regard to. 108

[84] Mr Felsovary said road safety, including fatigue and its effect on road safety, is a significant issue for the road transport industry and the community. He provided some statistics by way of example, including that The Australian Bureau of Infrastructure, Transport and Regional Economics reports in the 12 month period to the end of March 2017, 217 people died from 196 fatal crashes involving heavy trucks or buses; SafeWork Australia found of the 583 fatalities in the road transport industry between 2003-2015, 92% occurred in the road freight industry; and a report by National Transport Insurance (NTI) found in 2013, 12.8% of major truck crash incidents in Australia where NTI was the insurance underwriter were caused by fatigue.

[85] Mr Felsovary submitted the fatigue risk within Linehaul is more significant than in some other parts of the Toll business because its operations often occur at night, meaning drivers are performing work at times that are at odds with when people normally function and they are more likely to be fatigued during work. Further, he said Linehaul drivers are driving on long stretches of uninterrupted road, often along familiar routes and only stopping for breaks. Mr Felsovary said he understood this exacerbates the risk of fatigue as it can lead to boredom and complacency, in contrast to the activity drivers in metropolitan areas experience. Mr Felsovary said fatigue is a difficult risk to control as it relies heavily on self-monitoring and self-reporting.

[86] Mr Felsovary said measures in place in Linehaul to minimise fatigue risk include: safe driving plans; fatigue training; drivers being accredited in the fatigue management scheme applicable in the State where they are based; compliance programs which include vehicle and driver monitoring through a GPS tracking system and DriveCam and log book reviews; fitness for work assessments; and accommodation at certain locations to promote good quality rest.

[87] Despite the above measures, Mr Felsovary said fatigue-related events occur within Linehaul. Mr Felsovary outlined three incidents that had occurred in the previous six months where the likely cause of the incident was a microsleep.

[88] Of the Guardian system, Mr Felsovary said he has been informed the technology is identical to that being rolled out in Liquids. He said it was its intention that the policies and procedures supporting the implementation and use of the Guardian system will largely mirror those in place in Liquids, including the provisions relating to the collection, storage and use of the data collected.

[89] In cross-examination, Mr Felsovary said Linehaul, as well as having employee drivers, also engages owner drivers who are specific Toll drivers and do not provide services to other businesses. 109 He said fatigue management policies and the like apply to those subcontractors as well.110 Mr Felsovary said he is not aware of any proposal to insert the Guardian system into owner drivers’ vehicles.111 Mr Felsovary said at present, there is only one subcontractor used by Linehaul and he has not considered one way or the other whether the Guardian system should be installed on that vehicle.112

[90] Further in cross-examination, as to whether Toll has consulted with or obtained approval from the manufacturers of the vehicles to alter the vehicles with the installation of the technology, Mr Felsovary said it was his understanding that had occurred. 113 However, he later said he is not aware of what correspondence occurred with the manufacturers of the vehicles in relation to the installation of the devices.114 Mr Felsovary said with the most recent installs in 12 new Volvo vehicles, they were performed at the Volvo factory prior to delivery.115

[91] Mr Felsovary said prior to the Guardian system being activated, Linehaul drivers would be briefed and notified.

[92] Mr Felsovary submitted the Guardian system is different to the various measures referred to in [86] which are reactive and assists Linehaul in understanding how or why an incident occurred. He said the Guardian system is proactive as it can prevent incidents from occurring in the first place. In his opinion, Mr Felsovary said the Guardian system will make a profound difference to the likelihood of fatigue-related events within Linehaul because of its capacity to prevent incidents caused by fatigue or distraction. He said it has the capacity to prevent injuries and save lives, both for Linehaul drivers and the general public.

[93] In his supplementary witness statement, 116 Mr Felsovary said he had read the witness statements of Mr Kevin Markham,117 Mr Colin Markham,118 Mr Brad Osland119 and Mr Grant Hosking120 and where they had each generally described their work and rest break arrangements. In response to those matters, Mr Felsovary outlined the arrangements which are applicable across Linehaul. In Queensland, New South Wales, Victoria, Tasmania and South Australia, most Linehaul drivers operate under the Basic Fatigue Management scheme which stipulates for solo drivers, in any period of six and a quarter hours, they must not work for more than six hours work time and must have the rest of that period off work with at least a minimum rest break of 15 continuous minutes. Mr Felsovary said in Western Australia, work and rest hours are prescribed in state-based occupational health and safety legislation. This includes drivers having at least a 20 minute break from driving for every five hours of work time. Mr Felsovary also outlined the requirements in the Northern Territory and where work is performed across States or Territories. Mr Felsovary said drivers who perform two-up driving work have greater flexibility in their work and rest rules. Mr Felsovary noted that discretionary rest breaks are available across all States and Territories, which are beyond what is required by law and can be taken in scenarios such as where the driver believes they are impaired by fatigue, they become unwell and where road and weather conditions are difficult, stressful or dangerous.

[94] Second, Mr Felsovary said of criticisms made by Mr Kevin Markham, 121 Mr Colin Markham122 and Mr Hosking123 of Toll’s reliance on the report of Dr Leon-Saval and Dr Large, that he accepted the Linehaul Drivers’ Representative Committee (DRC) raised concerns with Linehaul management regarding its reliance on the Wirriga Report in the past. Mr Felsovary said the views were considered and the view was formed that despite the Wirriga Report relating to in-field testing of the Guardian technology in a different work environment, there were a number of general observations in the report which were relevant to Linehaul’s operations. Mr Felsovary said this view was communicated to the DRC on a number of occasions.

[95] Third, Mr Felsovary addressed Mr Clifford’s contention 124 that in circumstances where a driver has three fatigue incidents on a shift which are identified by the Guardian technology, there are no clear policies about the consequences for a driver and there is no obligation on Toll to find out the reason for the three fatigue incidents or to manage the issue. Mr Felsovary said while the Linehaul procedure is currently in draft mode, it is anticipated the procedure will largely mirror those in place in Liquids. He submitted one of the procedures sets out what is to occur in the event of a third fatigue alert and makes clear that when determined appropriate, Linehaul is to consider if additional preventative action is required to proactively support a driver’s fatigue management. As for Linehaul procedure, Mr Felsovary said it is anticipated that where a driver has three fatigue alerts in a shift, the driver is required to park up the vehicle for the remainder of the shift and the supervisor or manager is to have a fatigue management discussion which would feed into Linehaul’s investigation of the incident.

[96] In cross-examination, Mr Felsovary said the procedure regarding three fatigue events will mirror the Liquids’ procedure, where if there is a fatigue event or the alarm goes off in the Guardian system, the driver is required to pull over and contact their supervisor. 125 In the event there is a third fatigue alert, they are required to park up for the rest of their shift.126 He said following the third event and discussion with the driver, there may be a request to see a doctor, though that decision is up to Toll and there are no precise factors which it must consider under a policy.127

[97] Fourth, Mr Felsovary responded to the TWU’s claim that there are no clear policies in place regarding how Toll will deal with drivers who are the subject of false events. Mr Felsovary said he does not believe such policies are necessary as Linehaul will only be notified of genuine fatigue or distraction events. He said the footage is reviewed by the manufacturer within minutes of an event and if it is a non-genuine event, Linehaul is not notified and no further action is taken. Mr Felsovary said he has reviewed samples of various reports Linehaul will receive from the manufacturer and he is satisfied they do not contain any information about false events.

[98] However, in cross-examination, Mr Felsovary said he does not know how the manufacturer determines whether an event is a genuine fatigue event or false event. 128 Mr Felsovary said on the triggering of the alarm or seat vibration, they would be required to stop the vehicle and contact their supervisor.129 This would happen when the device is triggered, whether it be a genuine or false event.130

[99] Fifth, Mr Felsovary responded to concerns raised by Mr Kevin Markham, 131 Mr Hosking132 and Mr Gibbs133 regarding potential improper use of the Guardian technology by Toll. Mr Felsovary said while Linehaul may discipline drivers as a result of footage obtained through Guardian technology, this would only occur in very limited circumstances because there needs to be a genuine fatigue or distraction event for Toll to obtain the footage and the technology only records from the top of a driver’s shoulder to just above their head. Mr Felsovary submitted this places significant limitations on the type of footage obtained through Guardian technology. Mr Felsovary reiterated that if there is a fatigue or distraction event which is non-genuine, Toll is not notified and no further action is taken. In cross-examination, Mr Felsovary said there is no specific policy or procedure which sets out when disciplinary action may be considered should three events occur in one shift.134 Of the assertion that Toll has not followed proper procedure in the past regarding use of DriveCam, Mr Felsovary said it is not possible for him to respond as insufficient information has been provided, though if there was any concern, a number of options would be open to a driver, including raising a dispute under the Agreement.

[100] Sixth, Mr Felsovary responded to Mr Kevin Markham’s submission on the current fatigue management measures at Linehaul. 135 Mr Felsovary said he accepts that Linehaul currently have in place a range of controls which are designed to minimise fatigue risk, however, fatigue continues to be a significant issue affecting the business, the road transportation industry and the general community. He said Linehaul continues to see its drivers being involved in accidents and incidents attributable to fatigue and it is always considering other controls, like Guardian, which can minimise the risk of fatigue, particularly when there is capacity to reduce risk in a proactive manner.

[101] Seventh, Mr Felsovary responded to Mr Kevin Markham’s concerns 136 about the potential for incidents to occur prior to a distraction event being recognised by the system. Mr Felsovary said he has relied on the manufacturer’s recommendation that a distraction event only triggers after four seconds and when the vehicle is travelling over 30km/hr, which would also minimise non-genuine events being picked up by the system.

[102] Eighth, Mr Felsovary addressed Mr Osland 137 and Mr Hosking’s138 concerns about the position of the Guardian system, particularly that it may block the sun visor and that the visor cannot be pulled down as the unit “goes off.” Mr Felsovary said despite most of Linehauls’s drivers working at night and therefore there is seldom use of the visor, of the seven Guardian units installed as at August 2017 in the Linehaul fleet, the left infrared pod and camera had been mounted on the dash and the right pod was initially mounted near the sun visor. The potential for the visor to block the right pod was identified and the pod was then moved. Mr Felsovary said if the sun visor did block the unit, an alarm would not be triggered, rather a ‘field of view’ event would trigger, with no alert to the driver, rather with footage sent to the manufacturer to determine if it was a genuine event or not.

[103] Ninth, Mr Felsovary addressed the suggestions of Mr Colin Markham 139 and Mr Hosking140 that other systems could be used, such as the safety system which is a feature in some new Volvo trucks. Mr Felsovary said a number of factors were considered when Toll was considering its decision to invest in the technology and the decision was made that the Guardian technology was most appropriate for Linehaul’s business requirements. In terms of the Volvo technology, Mr Felsovary said if that were to be used, an entire fleet of new trucks would need to be purchased at a cost upwards of $42,000,000. He said of the 21 Volvo trucks in the fleet, seven were equipped with Volvo’s driver support system. In cross-examination, Mr Felsovary said he was aware the safety technology in the Volvo trucks does not use infrared technology.141 He said of new Volvo vehicles, the Guardian system has been installed in addition to the Volvo support system.142

[104] Penultimately, Mr Felsovary said Toll has responded to various concerns raised by the DRC. On 3 February 2016, the DRC provided Linehaul with a document entitled “Toll Linehaul Drivers Representative Committee Response to Installation of Seeing Machines Driver Safety System.” This document was provided to Dr David Sliney for comment and his response was appended to Mr Felsovary’s supplementary statement. 143 In summary, Dr Sliney said he was puzzled how the DRC could arrive at a conclusion that there are any health risks associated with the Guardian technology and such a conclusion could not be reached by reading his report on the latest model of the technology, or based on the documents that the DRC had cited. Doctor Sliney said the “product is clearly in the no-risk group and could be labelled “Exempt” in accordance with the IEC Standard IEC62471 for the photobiological safety of lamps and lamp systems, even though I did not explicitly state that it was “Exempt” in my report. I went further that [sic] the standard in examining the actual, reasonably foreseeable worst-case exposures during normal use.” Dr Sliney went on to say “[b]ecause of the large safety factor for the driver’s infrared exposure, an electrical fault could not produce a hazard to the driver.” The DRC provided a response to Dr Sliney’s correspondence, also appended to Mr Felsovary’s statement.144 Mr Felsovary said there was an invitation sent out for a meeting of the DRC and there was further correspondence sent following that meeting to a range of concerns raised.

[105] In cross-examination, Mr Felsovary said he was aware of concerns raised by the DRC in relation to the operation of the Guardian system, 145 including that it involves the direction of infrared beams at the driver’s face and eyes for the duration of their driving shift146 and that they wish to be satisfied there are no potential health effects.147 As regards the Wirriga report, Mr Felsovary said he was aware that study had been undertaken in relation to use of a particular vehicle at a mine site148 and that he became aware of that report when a member of the DRC provided it to him.149 Mr Felsovary said he had not contacted either Dr Leon-Saval or Dr Large in relation to the report,150 nor is he aware that anyone from Toll has done so.151 Mr Felsovary said he was not aware of drivers having requested a more specific study be undertaken in the context of Linehaul operations.152

[106] Mr Felsovary said he obtained a number of reports so as to inform himself of the technology and understand whether the risks or the concerns of the drivers were valid, 153 and in doing so, sought a literature review of the systems and the IR technology.154 He said he was not aware of any report being made available to him which had been commissioned by Toll,155 nor whether Toll intends to undertake a specific study.156 Mr Felsovary said he was not aware of any study in the world existing in relation to any potential long term health effects of the Guardian system.157 Mr Felsovary said if the devices are implemented across Linehaul, Toll does not propose to monitor the drivers’ health going forward, beyond the annual medical assessment which involves an eye test,158 or implement any procedure to monitor whether there are any effects of these devices.159

[107] Lastly, although he said no concerns have been raised with him about the Guardian technology being off-putting or distracting as a result of its location, Mr Felsovary responded to Mr Clifford’s submission that the in-cab location of the Guardian camera is dangerous as they are attached to the roof or the dash 160 and is also distracting because it is 68cm from his face.161 Mr Felsovary said there are no Guardian cameras installed on the roof of trucks in Linehaul, all which have been installed are on the dash at least 90cm away from a driver’s face. Mr Felsovary said the cameras are professionally installed and he does not believe, based on feedback and advice of others in the business (formerly heavy vehicle drivers) that the location would be off-putting or distracting. Mr Felsovary said the location of the camera does not obscure the view over the dash and the camera is less than the size of an iPhone, which in his experience, is commonly mounted by drivers in a similar position.

Submissions of the TWU

[108] The TWU submitted that while it has strong support for safe work in the transport industry, including proper management of fatigue, it does not support the introduction of technology that in of itself may put transport workers’ health and safety at risk or is plainly unjust or unreasonable.

[109] The TWU submitted per clause 15(e) of the Agreement, the Commission may consider and determine matters outside the seven discrete questions posed by the parties in order for it to determine the rights and obligations of the parties to the dispute. Further, it said the introduction of the Guardian system into Linehaul and Liquids trucks is not a matter which falls under clause 40 of the Agreement as it does not involve transport workers performing a safe system of work. As to DVR Cameras in the Liquids vehicles where they will be able to monitor drivers’ on their meal or rest break, the TWU submitted this also is not a matter within clause 40 of the Agreement. In the alternative, the TWU submitted the introduction of the systems as contemplated is plainly unjust and unreasonable and does not represent a proper exercise of Toll’s management prerogative.

[110] The TWU contend the submission by Toll that the DVR Cameras are required to provide additional surveillance and understanding of incidents must be rejected as incidents involving Liquids tankers are very rare. It submitted using these cameras in their current configuration would record drivers on their meal and rest breaks, which could not aid in managing incidents with the vehicle or fatigue. The TWU said implementing a surveillance system of this type is plainly unjust and unreasonable and it could not be said to be something contemplated by the Agreement and should be rejected.

[111] The TWU submitted the Commission should not assume there is a pressing need for Toll to further implement fatigue monitoring systems in its Linehaul fleet, as Toll has introduced and promotes a strong system of fatigue management for employees in that area of the business, including drivers’ sleeping quarters and considerable leeway in the allocated time for a journey to be completed. Accordingly, the TWU said the fatigue management system implemented by Toll for its Linehaul employed drivers is working well.

[112] In relation to the Guardian system, the TWU submitted the Commission should not assume that the system is safe. It submitted the Guardian system has not been tested or studied in the discrete circumstances in which Linehaul drivers work and has only been the subject of research in one real life situation, being the cab of a large mining truck at a mine site (Wirriga Report). The TWU said the report did not consider biological effects of the use of infra-red diodes being shone into a driver’s eyes, rather proceeded on the basis of mathematical calculations. The TWU submitted the authors of that report have expressed that their research was only relevant to the circumstances of the mining truck and should not be relied upon for any other circumstances, including the use of the Guardian system in Linehaul’s business.

[113] The TWU submitted there are few, if any, experts suitably qualified to undertake research into the biological effects of the use of infra-red lights shining into a truck driver’s eyes. It said there is an absence of scientific or medical study into the effect of the Guardian technology in the discrete circumstances in which Linehaul drivers operate.

[114] The TWU said the IEC Standard 62471, under which the Guardian technology is rated in the ‘Exempt’ category, is currently under review, meaning it is conceivable the ‘Exempt’ rating could be removed rendering the opinion relied on by Toll and the manufacturer of the technology (Seeing Machines) unsafe and/or perhaps wrong.

[115] Of Toll’s reliance on the Intertek study commissioned by Seeing Machines in 2015, the TWU submitted the Intertek report cannot be applied to the discrete circumstances in which Linehaul drivers operate as it is based on assumptions which are not applicable. For example, the TWU said it proceeds on an assumption that infra-red light will shine in a driver’s eyes for no more than eight hours, however if introduced, it would shine in Linehaul drivers’ eyes for between 11 and 14 hours. Further, the TWU says the study does not take into account external sources of light which shine into the eyes of drivers. Consequently, it submits the Guardian technology cannot be said to pose ‘nil’ risk to Linehaul drivers in the discrete circumstances in which they work.

[116] The TWU submitted until such adequate research has been undertaken which definitively establishes the system is safe, introducing the Guardian system is manifestly unjust and unreasonable as it has the potential to expose drivers to significant damage to their eyes.

[117] Finally, the TWU submitted Toll’s policies do not specify how the company will manage drivers in the long term who have three fatigue events in a shift, or are the subject of false alarm warnings due to issues with the system wrongly activating. The TWU said the false readings are a source of anxiety and tension for Toll employees already using the system, which has been recognised by Toll in external publications.

[118] The TWU’s closing submissions are considered further below.

Evidence for the TWU

Mr Stephen Gibbs

[119] Mr Gibbs filed a witness statement 162 ahead of the hearing and was subject to cross-examination.

[120] Mr Gibbs said he has been driving trucks for about 30 years, working for Toll the past 14.5 years. He said he works out of the Toll Spotswood depot on a 21-day continuous rotating shift, undertaking 12-hour shifts from 4.00pm to 4.00am or 4.00am to 4.00pm. Mr Gibbs said approaching a refinery, he uses the cabin isolation switch to turn off all the electrical equipment, apart from headlights and the electric windows, which is a requirement of every refinery to ensure there is minimal risk of fire, or a spark causing a fire. He said an exception is the Shell refinery where the trucks can enter the refinery and turn the switch on when they approach the loading dock.

[121] Mr Gibbs said during his shift, he is required to have two 30 minute breaks in accordance with the fatigue management system. He said these breaks are generally taken in the truck due to restrictions in the dangerous goods code.

[122] Of the introduction of the DVR Cameras in the Liquids fleet, Mr Gibbs said he has been involved in meetings with the TWU and Toll regarding its implementation. He said the cameras, which are turned on from when the key in the ignition is turned, amount to bullying and harassment as he cannot have a meal break without being recorded. While in favour of safety measures, he said he must have his meal break in the cab and if he wants to listen to the radio or have the heating or cooling on, he must turn the key to the ignition mode. That the DVR Camera will then start recording, he said is a gross invasion of privacy and is entirely unnecessary.

[123] Mr Gibbs said of the proposal to Toll that the DVR Camera only be activated when the key was put to the start position, as opposed to the accessory position, Toll rejected this proposition. At the hearing, Mr Gibbs said he is also a qualified mechanic, and that it is possible for the DVR Camera to be isolated such that it is only activated “on the on, rather than the on and the accessory.” 163 Mr Gibbs said there can be no safety or fatigue management reason that the DVR Camera should be operating when drivers are having their meal break.

[124] In cross-examination, Mr Gibbs accepted that if anyone was sitting in the passenger seat, a good proportion, if not all of the person, would not be captured by the DVR Camera. 164 Mr Gibbs said it would not make sense for him to do so because he would need to move all his bags and equipment to have lunch.165

• Only authorised persons have access to camera footage;

• Footage is only collected and used for the purposes for which it was recorded (as described in the Procedure);

• Footage will be accessed by authorised persons;

• Footage is appropriately stored in a secure location that can only be accessed by the most Senior person onsite; and

• Drivers and other employees, as relevant, are informed of vehicle cameras and advised how the footage is used.

[344] SOP-1 further stipulates that vehicle camera footage will be collected and used for:

• Monitoring fatigue and distractions;

• Investigating driving incidents, accidents and events;

• Investigating any other incident involving the driver of the vehicle (e.g. complaint by a member of the public or external authority);

• Reviewing and using the footage to coach drivers, improve safety outcomes, driver skills and behaviours;

• Reviewing and using the footage to help exonerate drivers involved in an incident and to recognise driver skill and performance;

• When deemed appropriate, reviewing and using the footage as evidence to discipline drivers where poor behaviour and safety is identified and/or the breaching of Road Safety Laws and Toll Policy and procedures has occurred; and

• Only the purpose for which it was recorded.

[345] Finally, SOP-1 states that inappropriate use or circulation of recorded footage beyond authorised personnel shall be subject to disciplinary action, up to and including termination of employment. On a practical level, accessing the footage requires retrieval from a memory card and viewing requires the use of specific inscription software.

Conclusion – DVR Cameras

[346] Toll submits it seeks to further implement technologies that it has identified as being capable of saving lives and which are capable of ensuring its enterprise is carried out in the safest possible manner. It further submitted the further implementation of the DVR Camera technology is a reasonable step to ensure a safe system of work, pursuant to clause 40 of the Agreement.

[347] I am persuaded by Toll’s submission that in circumstances in which it has obligations to provide a safe system of work, investigate incidents and complaints and is called upon to provide information to regulators and police regarding incidents involving its vehicles, a reasonable person could make the decision to further implement the DVR technology.

[348] While I acknowledge the employees have concerns that Toll will not comply with SOP-1, there are practical limitations that place some control over access and the safeguards contained in SOP-1 are comprehensive and a statement of Toll’s intent. In these circumstances, I am not persuaded that these concerns should act as a barrier to the further implementation of the DVR Cameras.

Infrared driver fatigue / distraction monitoring system – Guardian technology

[349] Prefaced with “[d]oes 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 five discrete concerns in relation to the infrared driver fatigue / distraction monitoring system are:

1) Does Toll have a right to further implement an infrared driver fatigue / distraction monitoring system, having regard to the concern of the TWU members that the infrared light emitted from the System may cause health problems including but not limited to damage to a driver’s eyes;

2) Does Toll have a right to further implement an infrared driver fatigue / distraction monitoring system, having regard to the concern of the TWU members as to the lack of definitive proof that the infrared light emitted from the System is safe;

3) Does Toll have a right to further implement an infrared driver fatigue / distraction monitoring system, having regard to the concern of the TWU members as to the lack of definitive studies into the effect of the infrared light emitted from the System during prolonged night driving;

4) Does Toll have a right to further implement an infrared driver fatigue / distraction monitoring system, having regard to the concern of the TWU members as to the lack of definitive studies into the effect of the infrared light emitted from the System on sight; and

5) Does Toll have a right to further implement an infrared driver fatigue / distraction monitoring system, having regard to the concern of the TWU members of the capacity for data captured by the System to be used for a purpose other than to ensure safe driving.

(my underlining)

[350] The Guardian technology, I have noted, is an ‘in vehicle’ system that uses a console mounted camera to track driver eye behaviour, determine their drowsiness state and detect micro-sleeps and distractions the instant they occur. Drivers are immediately alerted of fatigue events by audio and seat vibration alarms and Toll operations are notified of incidents in close to real time.

[351] I have noted the general basis of Dr Dain’s opinion:

a) The hazards of infrared radiation are not a risk to the eye until they reach levels well beyond what is emitted from infrared emitting diodes, IREDS;

b) Damage through optical radiation can be biochemical (which is not a factor having regard to the IRED emissions in question in this matter) or thermal;

c) In terms of thermal, optical wavelengths, if absorbed, cause temperature to rise and if the temperature rises more than a certain amount, tissue will be damaged. The amount of radiation necessary for damage only comes from an object that is extremely and uncomfortably bright;

d) In the occupational environment, it is mainly lasers that pose a thermal risk to eyes;

e) Lasers are classified under Australian/New Zealand standards and Class 1 lasers are in the equivalent of the Exempt category (i.e. they can be viewed without any risk of damage whatsoever);

f) The levels from IREDs are substantially less than the levels of Class 2, 3 and 4 lasers (Class 3 and 4 lasers are, at least in theory, hazardous to eyes);

g) IREDs have been used in eye movement recorders for at least 40 years and in them, the eye is irradiated by IREDs that are much the same as in the Guardian system. In these eye movement systems the IREDs are typically placed as close as 10-20mm from the eye so that the irradiance will be at least 1000x that of the Guardian system. They have never caused any problems; and

h) As such, Dr Dain would not expect the Guardian technology being anything other than Exempt (i.e. it can be viewed without any risk of damage whatsoever).

[352] I have further noted from Dr Dain’s evidence:

a) In answering the question “does the Guardian meet the Australian Standard, Photobiological safety of lamps and lamp systems,” Dr Dain said the Guardian system meets the Exempt category (does not pose any photobiological hazard for the end points in this standard) and is suitable for continuous use without risk to health.

b) That the irradiances and radiances generated by the Guardian are less than 1/500^th of the irradiance and far less than 1/50^th (radiance) limits of the standard, such that he knows of no reason to be concerned, even at the most remote level, about the effects from the levels of IR from the Guardian technology.

c) That he has no concerns whatsoever regarding the safety of the infrared light which is emitted from the Guardian technology, including if emitted during prolonged night driving.

d) As to the possibility of infrared light having any adverse effects on a driver’s sight, Dr Dain noted the radiation emitted is, in principle, invisible. He considered in theory it could become a visible glare source, which could be annoying to the driver and cause objects to be less visible due to scattered light, but noted there is no expectancy nor suggestion that the emissions of the IREDs in question being visible to any significant extent. Dr Dain therefore concluded there is no possibility for the infrared radiation which is emitted from the Guardian to have adverse effects on the driver’s sight.

e) That he considers Dr Sliney is one of the foremost authorities in the world on optical radiation safety and protection, such that he views Dr Sliney’s reports with particular confidence. For his part, Dr Sliney had concluded that the Guardian technology was within the safety guidelines 267 and there were no cognizable hazards to the cornea, lens or retina from even lengthy, repeated exposures.268 He said the infrared LEDs would have to emit far more power to pose a serious acute hazard to the retina and this is theoretically impossible for current LEDs.269

f) That he considers the Guardian technology poses no risk at 20cm away from the eye but even if the distance was less than 20cm, he would expect it would still be in the Exempt category.

g) The duration of the exposure to the Guardian technology did not concern him, with his evidence being:

“the hazard analysis according to AS/NZS IEC 62471:2011 has been carried out for unlimited exposure time. For these thermal hazards, the safety issues beyond the longest time limit set do not increase, since any temperature rise generated has reached equilibrium and does not rise any further. What is safe at 1000s or 10s (as applicable to the crystalline lens or retina respectively) is safe for ever…” 270

This view was unchanged when the scenario of a 14-hour shift was put to him and he considered the length of shift to be irrelevant. 271

h) His opinion there is no need for specific testing on the device or additional testing as the hazard analyses provided indicate substantial margins of safety and the only influence on the exposure of the eye are the distance between the unit and the eyes of the driver. Similarly, Dr Dain said he would not have expected to see a specific report testing the Guardian technology device for an extended period of time because there is no effect anticipated. 272

i) With the values for maximum permissible exposure having remained the same for decades, he has absolutely no reason to assume they will change now and as such, he did not expect the Australian Standard to be reviewed, such that the Guardian Technology would no longer be in the Exempt category.

j) There was no reason to be concerned about the impact on people with photosensitive eyes because photosensitivity is related to photochemical effects, which have no influence on thermal hazards.

[353] The TWU produced no expert evidence that challenged the evidence of Dr Dain. I had amended Directions so as to provide an opportunity for this to occur, but the TWU ultimately submitted it was unable to identify another expert who was qualified to give an opinion about the technology. The TWU did however refer to the series of reports that its witnesses had sourced through their own internet research and said of these:

“It is not submitted that the material obtained by the drivers, in itself, proves that the Guardian system will harm the eyesight of drivers. However, the documents have raised concerns in the minds of the drivers which they believe should be addressed and warrant further study” 273

[354] The TWU submitted:

• Dr Dain’s evidence made clear he had not ever conducted any testing or examination of the Guardian system or any infrared emitting diodes and had not seen the Guardian device or visited any workplaces where the device was installed;

• Dr Dain was unable to explain some aspects of the operation of the Guardian technology;

• Dr Dain was unfamiliar with how the technology actually operates and was unable to say if the LED diodes operate in a continuous or pulsing manner;

• Dr Dain relied on a small selection of reports provided by Toll, only one of which undertook direct testing of the Guardian device, was unable to say whether Dr Sliney has undertaken direct testing and was given incomplete reports of Dr Sliney;

• in terms of direct test results, Dr Dain relied on results undertaken in a laboratory not accredited for that type of testing; and

• Dr Dain accepted that his opinion the Guardian system could be used for longer than eight hours conflicted with the text of the Australian standard.

[355] The TWU submitted the material before the Commission is not sufficient to demonstrate that appropriate testing has been undertaken to assure drivers that the Guardian technology is safe and without risk. It said there have been no studies which have examined the operation of the Guardian technology, or similar, in road transport. The TWU further submitted that until such time as research has been undertaken, the introduction of the Guardian system is unreasonable because it has the potential to expose those being subjected to the infrared light to the risk of significant damage to their eyes.

[356] At the very least, the TWU submitted the technology should be subject to further study in the particular circumstances of Toll’s business and there should be regular medical assessments for drivers, to ensure no adverse effects ensue.

[357] I have weighed up the evidence of Dr Dain outlined above and the TWU’s critique of it. I note Dr Dain has been a registered optometrist for nearly 50 years. I further note he is Emeritus Professor, School of Optometry and Vision Science at the University of New South Wales and has specialised in the relationship of eyes and vision within the workplace and the physical world in general. He has considered, as part of this work, the measurement, assessment and necessary protection of eye hazards. Doctor Dain chaired the National Association of Testing Authorities of Australia, Registration Advisory Committee in Optics and Radiometry from 1990-2008 and has been on the Standards Australia committee on eye and face protection for over 40 years.

[358] As to the TWU critique, I note that while Dr Dain did not conduct testing on the Guardian device, his evidence was that what is important is the amount of radiation being absorbed in the structure and it does not matter what sort of device the radiation is generated from. 274 As to whether the LED diodes operate in a continuous or pulsing manner, Dr Dain’s evidence was that it makes no difference from the point of view of hazard analysis.275

[359] I have also considered the TWU’s submissions in relation to the reports of Dr Sliney and note that Dr Sliney’s 2015 Report outlined that an infrared pod was measured in the laboratory of Terry L. Lyon and he outlined the results 276 and the unequivocal conclusions he reached.

[360] I further note Dr Dain acknowledged that Intertek was not accredited for the measurements of light emitted from the devices. His evidence having regard to this was that ultimate confidence in results is when they come from an accredited report and the second best is when they come from a laboratory accredited for other capabilities because this gives them “some credence” as “they understand the needs and the responsibilities in accreditation.” 277

[361] Finally, as to the assertion that Dr Dain accepted that his opinion the Guardian system could be used for longer than eight hours conflicted with the text of the Australian standard, I have considered the totality of Dr Dain’s evidence on this point. 278 His evidence was that while it makes sense to apply an 8-hour limit to a biochemical risk, it makes no sense to apply it to the thermal hazards in question and it is in this respect that he queries the wording of the Australian Standard for possibly being inexact or ambiguous.

[362] While I acknowledge the particular concerns of the TWU witnesses in this case, Dr Dain’s evidence satisfies me in relation to the Guardian technology generally and the four specific concerns the TWU have raised in relation to it. That Dr Dain has no concerns whatsoever regarding the safety of the infrared light which is emitted from the Guardian technology, including if emitted during prolonged night driving, nor any concerns about the length of time the drivers might be exposed to the Guardian technology and sees no need for specific testing on the device or additional testing because the hazard analyses provided indicate substantial margins of safety, forms the basis of my satisfaction.

[363] I turn next to the fifth concern of the TWU members of the capacity for data captured by the System to be used for a purpose other than to ensure safe driving.

[364] In relation to policies regarding use of the Guardian system, I note the concern of Mr Clifford that there are no clear policies regarding what would happen to a driver if he or she has three fatigue events. In particular, Mr Clifford said there is no obligation on Toll to find out why the three events occurred or to manage the issue and he argued there should be measures in place to assist a driver who has three such events. Mr Clifford said he is concerned such an incident would be treated as a performance issue and drivers would be disciplined, rather than the issue being treated as an operational or medical issue. Toll submitted Mr Clifford conceded under cross-examination that there was evidence before the Commission of such an incident and it indicated the incident had been addressed by Toll in the exact opposite manner to that about which he was concerned. However, Mr Clifford said that particular approach was not a policy of Toll and it is not obligated to repeat that treatment with any other driver. 279

[365] In responding to the fifth concern, Toll again relied on the safeguards in SOP-1 (discussed above) and further outlined additional processes regarding the Guardian system in SOP-2 280 and SOP-3,281 which it submitted provide for how fatigue alerts are to be managed and drivers assisted. Toll said there has been no challenge to suggest these policies do not ensure safe driving.

[366] I note that SOP-2 provides guidelines for managing the Guardian systems installed in the Liquids fleet. Features of SOP-2 include:

• The use of footage recorded by vehicle cameras is managed according to Toll Privacy Policy;

• Only authorised persons have access to camera footage;

• Footage is only collected and used for the purposes for which it was recorded (as described in the Procedure);

• Footage will be accessed by authorised persons;

• Footage is appropriately stored in a secure location that can only be accessed by the most Senior person onsite; and

• Drivers and other employees, as relevant, are informed of vehicle cameras and advised how the footage is used.

[367] SOP-2 confirms that the following occurrences will necessitate a fatigue management discussion between a driver and their Line Manager to improve safety outcomes:

• A third fatigue event;

• A second fatigue alert requiring a driver to park up for the rest of the shift; and

• Reports showing multiple fatigue events or a pattern of fatigue events.

[368] It is further outlined in SOP-2 that the driver and Line Manager will discuss fatigue management training undertaken by the driver, a review of steps being taken by the driver to ensure they are fit for duty, and matters believed to be impacting on the drivers’ fitness for duty. Further training may be provided, there may be a period of leave or a short-term amendment to working hours. A referral for medical assessment may also be considered. SOP-2 states that the use of the Guardian system “is all about achieving better safety outcomes to help ensure drivers go home safely after every shift, rather than being about disciplining or terminating drivers.” As for disciplinary action, SOP-2 states it will be undertaken where a driver engages in behaviour inconsistent with their fatigue obligations.

[369] In SOP-3, it is specifically acknowledged that there may be false events triggered in a vehicle and if a driver is certain there was not a fatigue event, they can continue their shift without having to pull over and undertake the outlined process.

[370] I have considered the evidence and submissions of the TWU and its witnesses, but I am satisfied that SOP-2 and SOP-3 adequately address the concerns of the TWU members regarding the capacity for data captured by the System to be used for a purpose other than to ensure safe driving. The embarkation of disciplinary action is limited to scenarios in which a driver engages in behaviour inconsistent with their fatigue obligations and the emphasis under the policy appears to be very much directed towards better safety outcomes before such a path is trodden.

[371] More generally, I have considered the statistics provided and I am satisfied they support the contention that road safety, including fatigue and its effect on road safety, is a significant issue for the road transport industry and the community. They included:

• The Australian Bureau of Infrastructure, Transport and Regional Economics reports in the 12 month period to the end of March 2017, 217 people died from 196 fatal crashes involving heavy trucks or buses;

• SafeWork Australia’s finding that of the 583 fatalities in the road transport industry between 2003-2015, 92% occurred in the road freight industry; and

• a report by National Transport Insurance (NTI) that found in 2013, 12.8% of major truck crash incidents in Australia, where NTI was the insurance underwriter, were caused by fatigue.

[372] I have also considered the Toll-specific evidence of incidents involving fatigue, given by both Mr Hepburn 282 and Mr Felsovary. I accept the evidence of Mr Felsovary that features of the Linehaul business raise fatigue risks which are difficult to control due to the reliance of self-monitoring and self-reporting. I have also noted the submission, through Mr Hepburn, that the Guardian technology “is a proactive safety tool” which has the capacity to reduce safety incidents related to fatigue by 95%.283

[373] I have outlined Toll’s current use of the technology above at paragraph [43] and have noted its submission that the Guardian technology is used by a number of its competitors and a number of customers require use of the Guardian technology in their contracts. I have also noted no evidence of specific complaints regarding the use of either form of technology was put before the Commission. While some generalised concerns were raised and the suggestion was made that the Guardian technology is already a source of anxiety and tension, I have noted the approach Toll has previously adopted in terms of consultation 284 and Mr Hepburn’s evidence that all affected Tanker Drivers would be briefed regarding the operation of the technology prior to it being activated in their vehicles, and on the various Standard Operating Procedures, and that they will be notified in advance of the Guardian and DVR Cameras being activated in their vehicles.

Conclusion – Guardian Technology

[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.

Conclusion

[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).

DEPUTY PRESIDENT

Appearances:

Mr Denton of Counsel for the Applicant.

Mr Gibian of Counsel for the Respondent.

Hearing details:

2017.

Melbourne:

October 12, 13.

2018.

Melbourne and Sydney (video link):

March 20.

Printed by authority of the Commonwealth Government Printer

1 Transcript PN 32.

2 Transcript PN 54.

3 Exhibit A5 [Report] at [50].

4 Exhibit A5 [Report] at [48].

5 Transcript PN 1256.

6 Exhibit A5 [Report] at [50].

7 Transcript PN 1258.

8 Transcript PN 1257.

9 Exhibit A5 [Report] at [13].

10 Ibid.

11 Ibid.

12 Exhibit A5 [Report] at [14].

13 Exhibit A5 [Report] at [16].

14 Exhibit A5 [Report] at [28].

15 Exhibit A5 [Report] at [29].

16 Exhibit A5 [Report] at [38].

17 Exhibit A5 [Report] at [41] and [43].

18 Exhibit A5 [Report] at [46].

19 Exhibit A5 [Report] at [47].

20 Exhibit A5 [Report] at [52[i]].

21 Exhibit A5 [Report] at [52[ii]].

22 Exhibit A5 [Report] at [54]-[55].

23 Exhibit A5 [Report] at [57[ii]].

24 Exhibit A5 [Report] at [59].

25 Ibid.

26 Ibid.

27 Transcript PN 1266.

28 Ibid.

29 Transcript PN 1303.

30 Transcript PN 1279-1280.

31 Transcript PN 1283.

32 Transcript PN 1301.

33 Transcript PN 1284.

34 Transcript PN 1296.

35 Transcript PN 1332.

36 Ibid.

37 Transcript PN 1345.

38 Transcript PN 1346.

39 Ibid.

40 Transcript PN 1342.

41 Transcript PN 1366.

42 Transcript PN 203-204.

43 Transcript PN 210.

44 Transcript PN 221, PN 223.

45 Exhibit A1 at [28].

46 Exhibit A1 at [30].

47 Exhibit A1 at [45].

48 Transcript PN 102-107.

49 Transcript PN 108-110.

50 Exhibit A1 – Attachment SH-8.

51 Ibid.

52 Exhibit A1 at [63(a)].

53 Exhibit A1 – Attachment SH-9.

54 Transcript PN 288, PN 291.

55 Transcript PN 294, PN 298-299.

56 Transcript PN 302-310.

57 Transcript PN 420-421.

58 Transcript PN 422-425.

59 Exhibit A1 – Attachment SH-5.

60 Transcript PN 265-269.

61 Transcript PN 279.

62 Transcript PN 286-287.

63 Transcript PN 447.

64 Transcript PN 448-449.

65 Transcript PN 450.

66 Transcript PN 453.

67 Exhibit A1 – Attachment SH-10.

68 Transcript PN 384-385.

69 Exhibit A2.

70 Exhibit R1 at [3]-[11] and [19].

71 Exhibit R2 at [3]-[7], [13]-[14] and [26].

72 Transcript PN 342-343.

73 Transcript PN 370-371.

74 Transcript PN 374-377.

75 Transcript PN 398-403.

76 Exhibit R2 at [30].

77 Transcript PN 415-416.

78 Transcript PN 326.

79 Transcript PN 328.

80 Transcript PN 330-331.

81 Transcript PN 332.

82 Exhibit R5 at [30]-[33].

83 Exhibit R3 at [18].

84 Exhibit R1 at [15]-[16].

85 Exhibit R5 at [28]-[29].

86 Exhibit R4 at [21].

87 Exhibit R3 at [16].

88 Exhibit R2 at [29].

89 Transcript PN 128-131.

90 Exhibit R5 at [27].

91 Exhibit R4 at [21].

92 Exhibit R3 at [17].

93 Exhibit R2 at [28].

94 Exhibit R2 at [24].

95 Exhibit R3 at [6]-[8]

96 Exhibit R6 at [9].

97 Exhibit R2 at [20].

98 Exhibit R1 at [11].

99 Exhibit R2 at [21]-[22].

100 Transcript PN 247.

101 Exhibit R2 at [18].

102 Exhibit R2 at [23].

103 Exhibit R1 at [15]-[16].

104 Exhibit R2 at [17].

105 Transcript PN 248.

106 Transcript PN 249.

107 Transcript PN 558-563.

108 Exhibit A3 – Attachment PF-3 to PF-10.

109 Transcript PN 582-585.

110 Transcript PN 586.

111 Transcript PN 588-590.

112 Transcript PN 606-608.

113 Transcript PN 626.

114 Transcript PN 631-632.

115 Transcript PN 626-629.

116 Exhibit A4.

117 Exhibit R5.

118 Exhibit R6.

119 Exhibit R4.

120 Exhibit R3.

121 Exhibit R5 at [10]-[13].

122 Exhibit R6 at [13]-[16].

123 Exhibit R3 at [11]-[12].

124 Exhibit R2 at [30].

125 Transcript PN 759.

126 Transcript PN 762.

127 Transcript PN 774, PN 783-784.

128 Transcript PN 794.

129 Transcript PN 796.

130 Transcript PN 797-798.

131 Exhibit R5 at [30]-[33].

132 Exhibit R3 at [18].

133 Exhibit R1 at [15]-[16].

134 Transcript PN 805-806.

135 Exhibit R5 at [24]-[25].

136 Exhibit R5 at [27].

137 Exhibit R4 at [21].

138 Exhibit R3 at [17].

139 Exhibit R6 at [9].

140 Exhibit R3 at [6]-[8].

141 Transcript PN 638-641.

142 Transcript PN 645.

143 Exhibit A4 – Attachment PF-3.

144 Exhibit A4 – Attachment PF-4.

145 Transcript PN 651.

146 Transcript PN 652.

147 Transcript PN 656.

148 Transcript PN 667.

149 Transcript PN 673.

150 Transcript PN 723.

151 Transcript PN 724.

152 Transcript PN 732.

153 Transcript PN 677.

154 Transcript PN 682.

155 Transcript PN 713.

156 Transcript PN 733 and PN739.

157 Transcript PN 736-738.

158 Transcript PN 748-753.

159 Transcript PN 742-743.

160 Exhibit R2 at [28].

161 Exhibit R2 at [24].

162 Exhibit R1.

163 Transcript PN 846.

164 Transcript PN 884.

165 Transcript PN 884-885.

166 Transcript PN 994-995.

167 Exhibit A1 at [44].

168 Transcript PN 896-897.

169 Transcript PN 909-910.

170 Transcript PN 934.

171 Exhibit A3 – Attachment PF-4.

172 Exhibit A3 – Attachment PF-5.

173 Transcript PN 961.

174 Transcript PN 986.

175 Exhibit R2.

176 Transcript PN 1089.

177 Transcript PN 1114.

178 Transcript PN 1145.

179 Transcript PN 1147.

180 Transcript PN 1148-1149.

181 Exhibit R3.

182 Exhibit R3 at [4].

183 Transcript PN 1449-1452.

184 Exhibit A5 [Report] at [52[iv]].

185 Transcript PN 1491.

186 Exhibit R5.

187 Exhibit R5 – Attachment KM-1 to KM-9.

188 Exhibit R5 – Attachment KM-10 and KM-11.

189 Exhibit R5 – Attachment KM-12.

190 Transcript PN 1831-1834.

191 Transcript PN 1871-1875.

192 Transcript PN 1838.

193 Transcript PN 1846.

194 Transcript PN 1854.

195 Transcript PN 1896.

196 Exhibit R6.

197 Exhibit R6 – Attachment CM1 to CM8.

198 Transcript PN 1939.

199 Transcript PN 1984-1985.

200 Transcript PN 1960.

201 Transcript PN 1986-1987.

202 Transcript PN 2015-2016.

203 Exhibit R4.

204 Exhibit R4 – Attachment BO-1 to BO-9.

205 Transcript PN 1522.

206 Exhibit R4 – Attachments BO-10 and BO-11.

207 Exhibit R4 – Attachment BO-12.

208 See Exhibit A4 – Attachment PF-2.

209 See Exhibit A4 – Attachment PF-3.

210 Transcript PN 1570.

211 Transcript PN 1615-1616.

212 Transcript PN 1709-1710.

213 Transcript PN 1770-1772.

214 Transcript PN 1530.

215 Transcript PN 1540-1542.

216 [2014] FWC 2945.

217 Exhibit A3 – Attachment PF-7.

218 Exhibit A3 – Attachment PF-4.

219 Exhibit A3 – Attachment PF-5.

220 Exhibit A3 – Attachment PF-6.

221 Exhibit A3 – Attachment PF-3, page 5.

222 See Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales (1984) 295 CAR 188; see also CFMEU v HWE Mining Pty Ltd[2011] FWA 8288; 214 IR 194 at [7]-[12] and the cases cited therein.

223 Applicant’s Closing Submissions, 25 October 2017 at (64).

224 Transcript PN 862-866.

225 Transcript PN 885-889.

226 Exhibit A1 – Attachment SH-5.

227 Transcript PN 937-941.

228 Transcript PN 1132, 1139.

229 Transcript PN 901.

230 Transcript PN 1462.

231 Transcript PN 1461-1462, PN 1483.

232 Exhibit A5 [Report] at [55].

233 Transcript PN 1296.

234 Transcript PN 981-982, PN 1429-1433.

235 Transcript PN 1156-1157.

236 Exhibit R3 at [19].

237 Transcript PN 389-392, PN 729.

238 Transcript PN 1284-1286.

239 Exhibit A5 [Report] at [57[ii]] and Transcript PN 1307-1310.

240 Exhibit R6 – Attachment CM-1.

241 Exhibit R6 – Attachment CM-2.

242 Exhibit R6 – Attachment CM-4.

243 Exhibit R6 – Attachment CM-5.

244 Exhibit R6 – Attachment CM-6.

245 Transcript PN 2076.

246 [2011] FWA 8288.

247 Exhibit A1 – Attachment SH-13 at page 10.

248 Applicant’s Submissions in Reply at [27(c)] and Transcript PN 1257-1260.

249 Respondent’s Final Submissions at [32].

250 Respondent’s Final Submissions at [51].

251 Transcript PN 1310.

252 Exhibit A5 [Report] at [29].

253 Exhibit A5 [Report] at [52[ii]].

254 [2014] FWC 2945 at [72].

255 Ibid at [76].

256 Ibid at [85].

257 Ibid at [81].

258 Ibid at [82].

259 [2011] FWA 8288.

260 Ibid at [12].

261 [2014] FWC 2945 at [84].

262 Ibid.

263 [2011] FWA 8288.

264 Ibid at [12].

265 Exhibit A1 at [45].

266 Exhibit A1 – Attachment SH-5.

267 Exhibit A1, Attachment SH13 at page 10.

268 Ibid at page 11.

269 Ibid at page 10.

270 Exhibit A5 [Report] at [52[ii]].

271 Exhibit A5 [Report] at [57[ii]] and Transcript PN 1301.

272 Transcript PN 1284.

273 Respondent’s Final Submissions dated 2 November 2017 at [46].

274 Transcript PN 1303.

275 Transcript PN 1273, 1323 and 1329.

276 Exhibit A1, Attachment SH13 at page 1.

277 Transcript PN 1257.

278 Transcript PN 1305-1316 and Exhibit A5 [Report] at [57].

279 Transcript PN 1156-1158.

280 Exhibit A1, Attachment SH15.

281 Exhibit A1, Attachment SH16.

282 For example, see above at [75].

283 Exhibit A1 at [63(a)] and Exhibit A1 – Attachment SH-9.

284 See above at [56]-[57].

Toll Transport Pty Ltd T/A Toll Shipping v Transport Workers' Union of Australia