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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052106
COMMISSIONER ROBERTS
C2014/7504
s.739 - Application to deal with a dispute
Transport Workers' Union of Australia
and
Linfox Australia Pty Ltd
(C2014/7504)
Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2014
(ODN AG2014/3548)
[AE406887 Print PR547821]]
Sydney
10.05 AM, WEDNESDAY, 1 JULY 2015
Continued from 30/06/2015
PN1298
THE COMMISSIONER: Mr Warnes, your submissions.
PN1299
MR WARNES: Thank you, Commissioner. Commissioner, this dispute arises out of a proposition of Linfox to introduce a technology known as DriveCam in the state of New South Wales. As Linfox have put, DriveCam is already installed in Western Australia, South Australia, Queensland and Victoria. The TWU challenges the validity of Linfox installing this technology, as it currently stands under its current policy, into the trucks in New South Wales.
PN1300
The question that has been put to this commission to answer in the context of this arbitration is: is there anything in the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2014 or anything else that acts to prevent Linfox from operating the DriveCam technology in its vehicles? As we canvassed yesterday, the second question is: can Linfox rely on the DriveCam technology for the purposes of disciplinary action?
PN1301
I think it's appropriate at this stage to concede two things: firstly that if the answer - the answer to (b), the answer to the second question - will be answered, we say probably within the first question, and is probably unnecessary for the commission to trouble itself too much about that second question. The first question, we would concede that there is nothing in the enterprise agreement, so the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2014, that prevents Linfox from operating the DriveCam.
PN1302
We do say that there's nothing in there that expressly allows them to do that, but there is nothing that prevents them from doing that. The basis on which we say Linfox is prevented from operating the DriveCam technology in its vehicles rests on two points: the first point being that we say surveillance legislation in Australia and New South Wales operates to prevent certain aspects of DriveCam from operating without particular safeguards being in place; and secondly that without an appropriate policy, it would be unjust and unreasonable for Linfox to operate DriveCam in its vehicles in New South Wales.
PN1303
To start with I think it's important to state that the TWU doesn't oppose the introduction of DriveCam in its entirety. In fact, the TWU wholeheartedly supports initiatives that are designed to increase safety outcomes on this nation's roads. The TWU is actively pursuing other avenues in which it says will increase safety on the roads.
PN1304
THE COMMISSIONER: Sir, that, I take, is axiomatic.
PN1305
MR WARNES: Yes. It's just in the current circumstances which Linfox proposes that the TWU opposes, and we say that it invades unnecessarily the privacy of the TWU's members, and it's on that ground that we oppose the introduction of DriveCam.
PN1306
THE COMMISSIONER: Hang on. There's nothing wrong with the installation and operation of it, except you think it might in some way breach the surveillance legislation, to use a generic term.
PN1307
MR WARNES: Yes.
PN1308
THE COMMISSIONER: And you're not happy with the terms of the policy. Is that really it?
PN1309
MR WARNES: Yes. In a nutshell, Commissioner.
PN1310
THE COMMISSIONER: I like a nutshell. Is that it?
PN1311
MR WARNES: Yes. And I will take you to the - I've taking you to the provisions of the relevant surveillance legislation in our opening submissions, which is exhibit TWU1. I will respond somewhat to the points put by Linfox in their outline of submissions as well.
PN1312
THE COMMISSIONER: The point about the surveillance legislation appears to be that in some way in practice it might breach the legislation.
PN1313
MR WARNES: That's right, yes.
PN1314
THE COMMISSIONER: Not that it does on its face. Is that correct?
PN1315
MR WARNES: Well, it couldn't breach legislation unless one of those instances occurred, but it has been, frankly, acknowledged that those instances do occur. So that technology in its operation ‑ ‑ ‑
PN1316
THE COMMISSIONER: This is the recording of bits of private conversations ‑ ‑ ‑
PN1317
MR WARNES: Private conversation, yes.
PN1318
THE COMMISSIONER: ‑ ‑ ‑ which might coincide with a - wonderfully called a g-force incident.
PN1319
MR WARNES: An event, a 12-second event, that's right. As I will come to, it has been acknowledged that it does record these snippets of conversation, which is an ongoing concern for membership. But we say that can be overcome, given the appropriate safeguards in a reasonable policy.
PN1320
THE COMMISSIONER: We will come to the policy.
PN1321
MR WARNES: It's not particularly for us to suggest how that would be overcome. It may be overcome by - I will continue. On that point we were just talking about, Commissioner, we say that without appropriate policies in place to address the surveillance concerns raised, either within the scope of the surveillance legislation or simply the privacy concerns of the drivers, which unlawfully and legitimately held, then the introduction of DriveCam would be unjust and unreasonable within the rationale of the established authorities that the commission can overturn management decisions.
PN1322
THE COMMISSIONER: Am I empowered to enforce the surveillance legislation?
PN1323
MR WARNES: Yes. And I was going to come to that, Commissioner.
PN1324
THE COMMISSIONER: Mr Shariff is vigorously shaking his head.
PN1325
MR WARNES: Of course he is, it's his job. Commissioner, clause 33 of the enterprise agreement is where we say you have the power to determine the rights and responsibilities of the parties. Do you have the enterprise agreement there? I believe it's in the bundle of documents that Linfox helpfully handed up yesterday.
PN1326
THE COMMISSIONER: My associate will ferret it out. Is it attached to Hurst's statement?
PN1327
MR WARNES: No, it's not.
PN1328
THE COMMISSIONER: Just give us a moment, we will find it. I'm getting to know clause 33 fairly intimately.
PN1329
MR WARNES: I know it all too well.
PN1330
THE COMMISSIONER: Yes, I bet you do. Just let me turn it up. If this is a simplified agreement, I would hate to see a complicated one - as I wade through it. Okay, clause 33.
PN1331
MR WARNES: Clause 33, Commissioner. So clause 33.1(a) through (d) sets out the circumstances when this commission is empowered to hear a dispute or what steps have to be gone through to allow the commission to hear it.
PN1332
THE COMMISSIONER: We're at (e), aren't we?
PN1333
MR WARNES: So we go to (e), yes. It reads:
PN1334
If the matter is not resolved in conciliation conducted by the Fair Work Commission the parties agree that the Fair Work Commission may proceed to arbitrate the dispute and/or otherwise determine the rights and/or obligations of the parties to the dispute.
PN1335
It's those words which we say allow the commission to inspect all laws, regulations, anything applicable to the parties to the dispute, and determine what impact those laws, regulations, et cetera have on the dispute in question between the parties. We say that doesn't limit the commission to just dealing with matters that arise under the enterprise agreement, and it's very clear in 33.1 that the parties haven't sought to limit the scope of what the commission can do.
PN1336
Obviously the commission is limited by section 7395, but that's obviously not a part of this dispute resolution procedure. I will come to it later. We say that any decision relating to the implementation of DriveCam wouldn't contradict a term of the enterprise agreement, as I understand is put by Linfox. So it's 33.1(e) ‑ ‑ ‑
PN1337
THE COMMISSIONER: So there's nothing in it that prohibits Linfox, but there's nothing in it that prohibits me from interfering - intervening, sorry.
PN1338
MR WARNES: That's what we say, yes; apart from the established principles of the commission disturbing management decisions.
PN1339
THE COMMISSIONER: Of course. I'm putting it very, very broadly.
PN1340
MR WARNES: Yes.
PN1341
THE COMMISSIONER: And by the way, I'm putting it as a summary of your position, not as a summary of my position.
PN1342
MR WARNES: Of course. Of course, Commissioner. I understand that. I would like to take you - do you have a bundle that I handed up with you, Commissioner, yesterday morning?
PN1343
THE COMMISSIONER: Which of the many bundles is this?
PN1344
MR WARNES: This is the Transport Workers Union of Australia, New South Wales branch.
PN1345
THE COMMISSIONER: The black and white one, Rachel. Yes, I do.
PN1346
MR WARNES: I just want to take you - it's under tab 1, and this is a decision of Sams DP. The reason I attach this is it succinctly sets out the power of this commission to disturb management decisions. But I wanted to take you first to - it's at page 20, Commissioner, and it's under paragraph 123, it's where the Deputy President has cited a decision of Lawler VP in CFMEU v HWE Mining Pty Ltd. I just want to take you at the bottom of the page, it's at paragraph 9, this is part of the Vice President's decision.
PN1347
The Vice President has cited the full bench in Woolworths v Brown, and he said that:
PN1348
In the modern era employers face an often bewildering array of statutory obligations in relation to matters such as health and safety, discrimination, taxation, trade practices and fair trading to mention the most obvious examples. Employers face potential liability arising from their common law duty of care to their employees and to members of the public. Employers may be subject to contractual obligations that require them to conduct their business in a particular way or to meet particular standards or observe particular constraints. For these reasons it is entirely reasonable, and often necessary, for employers to put in place policies, with which employees must comply, to facilitate the employer's compliance with its obligations and duties.
PN1349
That sits very nicely with the thrust of what we're saying in this matter, Commissioner, and that's that the operation of DriveCam is subject to, as the full bench put it in Woolworths v Brown, an array of statutory obligations. To meet those statutory obligations an employer such as Linfox would have to put into place a policy to ensure that those obligations are met by Linfox when they're operating this device.
PN1350
We say - and that's what I will come to shortly - to comply with these pieces of surveillance legislation there would have to be a compressive policy in place by Linfox to ensure that their obligations under those statutes are met.
PN1351
THE COMMISSIONER: But if Linfox - this is just purely a hypothetical argument or discussion - if Linfox managed an implementation of the DriveCam which didn't record employees' conversations if they were on the phone during a g-force incident, then everything is okay, is it?
PN1352
MR WARNES: Yes. That's the simplest answer to that question.
PN1353
THE COMMISSIONER: I like a simple answer.
PN1354
MR WARNES: And that's what we will come to, and that's one of the reasons why we say the policy in its current form is deficient and doesn't meet the standard that it has to meet to ensure that DriveCam is not an unjust and unreasonable system for the employees to work under.
PN1355
We've heard from Linfox witnesses yesterday that the overwhelming majority of incidents don't require the audio function to recognise what the overall cause of the incident was. There were a couple of incidents that did require the audio, but it was acknowledged by the Linfox witnesses that this was not in the majority. Further, Mr Clulow in his evidence couldn't identify an incident with which audio was required to establish what the cause of the incident was.
PN1356
We say that - and that comes back to what you just said, Commissioner - is that we say that a commonsense approach to putting together a policy would alleviate driver concerns; would allow Linfox to comply with their statutory obligations; and would essentially result in a fair policy and, we would hope, a mutual cooperation going forward in relation to the operation of the DriveCam technology.
PN1357
I just want to take the commission to a couple of pieces of evidence which we say are important in the matter. First of all this is in relation to the sound recording capabilities of the devices. I draw your attention, Commissioner, to paragraphs 26 through to 36 of exhibit TWU4. We say that that provides evidence to the commission that the practice of talking on the phone during your shift, particularly for Mr Waltas, who is a linehaul worker ‑ ‑ ‑
PN1358
THE COMMISSIONER: Where is it in Waltas's statement?
PN1359
MR WARNES: Paragraphs 26 to 36.
PN1360
THE COMMISSIONER: Do you object to audio per se, or only where it might pick up a private conversation; or only because it might pick up a private conversation?
PN1361
MR WARNES: It's because it would pick up a private conversation, Commissioner.
PN1362
THE COMMISSIONER: What if there was a g-force incident and the audio picked up the driver saying, "Oh (expletive) I (expletive) upped there?"
PN1363
MR WARNES: I cannot see an issue with that. I can't see how we would be able to take an issue with that, Commissioner. It's privacy ‑ ‑ ‑
PN1364
THE COMMISSIONER: But you would take issue if he was talking to his wife about what there was going to be for dinner that night?
PN1365
MR WARNES: That's a trivial example, but yes, that's what the TWU objects to. That's the privacy concerns that the drivers have.
PN1366
THE COMMISSIONER: Yes, I understand that.
PN1367
MR WARNES: There's no real privacy concern with, "Oh, I (beep)ed that one up, didn't I." If that's the case, that's the case.
PN1368
THE COMMISSIONER: One suspects that's what they're looking for.
PN1369
MR WARNES: And as I said, Commissioner, we wouldn't have a terrible - we wouldn't take issue with that. So, yes, as I said, Commissioner, paragraph 26 through 36, that's where Mr Waltas explains the conversations he has in his vehicles and the fact that he deals with - in 28 he sets out five points as to regular conversations that he may have in the vehicle which he would be uncomfortable with people overhearing. We must remember at this point that it's not just Linfox managers and Linfox trainers who are going to hear this, it's going to be unknown people over in the United States who will also hear whatever conversation is being had.
PN1370
THE COMMISSIONER: What about the now famous red light that comes on when conversation is being recorded?
PN1371
MR WARNES: I was going to come to that later. That red light, in my understanding, comes on when the DriveCam triggers. So as the evidence has shown, the eight seconds before that, there has been no red light on.
PN1372
THE COMMISSIONER: This is the eight seconds plus four seconds.
PN1373
MR WARNES: Yes. So the red light will be on for the four seconds, but not the eight seconds before. And my friend said no to me, but I will leave that to his submissions to put.
PN1374
THE COMMISSIONER: He will come to that if you're wrong.
PN1375
MR WARNES: That's my understanding of the evidence. Paragraphs 23 through 25 of TWU6, that's Mr Miller's statement, he set out very similar points to what Mr Waltas has set out in relation to the conversations that he has while he's driving. And he obviously drives for a different arm of Linfox. He drives in the Sydney metro area delivering from the Coles distribution centre in Eastern Creek, but he set out a very similar set of concerns as Mr Waltas set out in his statement.
PN1376
Coming to Linfox's evidence, in LINFOX7 at paragraph 42 Mr Clulow states quite frankly:
PN1377
In my experience it's highly unusual for DriveCam footage to (unintentionally) record snippets of a driver's personal conversation.
PN1378
But Mr Clulow quite rightly admitted that that does not mean that it doesn't record private conversation; it means it does, it just happens rarely. He did put that in his experience it was quite rare, but it had happened on multiple occasions.
PN1379
MR SHARIFF: Four occasions out of thousands.
PN1380
THE COMMISSIONER: You can come to that, Mr Shariff. I don't want a gallery comment, please.
PN1381
MR WARNES: Four occasions out of an indeterminate number of viewings. Mr Bowbyes admits the same as what Mr Clulow said at paragraph 28 of exhibit LINFOX6. In cross‑examination, when put to them, each Linfox witness admitted that the DriveCam would and has recorded private conversations in the past.
PN1382
THE COMMISSIONER: I take it you're relying on its capacity to do it, rather than the number of times it has allegedly happened.
PN1383
MR WARNES: That's right, Commissioner. This is going forward. I mean, we can look back and see how many times it has happened or - we say the important part is that it has happened, not the amount of times it has happened.
PN1384
THE COMMISSIONER: The only way your concern can be satisfied in practice would be to delete the audio function, wouldn't it?
PN1385
MR WARNES: That would be one way to solve the problem.
PN1386
THE COMMISSIONER: Tell me another one.
PN1387
MR WARNES: I battled with this last night, Commissioner. I'm not ‑ ‑ ‑
PN1388
THE COMMISSIONER: It's easy for me. I just ask the questions.
PN1389
MR WARNES: Yes. I'm not sure how it would cure any breach under the surveillance legislation that I'm going to bring you to in a moment. But perhaps if there was something in the Linfox policy which essentially stated that if it is clear that there is a phone conversation going on, audio will not be listened to in that circumstance. That would then come down to an enforcement issue as to whether people do it or not. And the audio obviously is still recorded.
PN1390
THE COMMISSIONER: So the only solution to your problem with the installation or operation of DriveCam is the audio? It must, in fact, be the audio in total, mustn't it?
PN1391
MR WARNES: That would be the commonsense approach, yes. And particularly given the evidence that we heard about the very limited use of audio in establishing what incidents are.
PN1392
THE COMMISSIONER: Your argument must be, I would think, that I should find - not find, determine - that there should be no audio function.
PN1393
MR WARNES: We would invite you to do that, Commissioner.
PN1394
THE COMMISSIONER: And if I did that - big if - I did that, you would be entirely satisfied with DriveCam?
PN1395
MR WARNES: Provided that ‑ ‑ ‑
PN1396
THE COMMISSIONER: You might think I'm trying to - I'm not trying to box you in, I'm trying to narrow.
PN1397
MR WARNES: No. And provided that a couple of other points were in place ‑ ‑ ‑
PN1398
THE COMMISSIONER: Tell me the other couple of points.
PN1399
MR WARNES: You've heard some evidence about the way that DriveCam is installed, and that's in relation to the TWU's concerns about the recorders recording when the cabin is used as a change room or a bedroom.
PN1400
THE COMMISSIONER: Right.
PN1401
MR WARNES: Obviously if the DriveCam is installed properly, that issue is going to fall away. We've had evidence in the past it hasn't been installed properly, which Mr Jones rightly put that that has been rectified by May. But we would say that the proper use would be for the DriveCam to have some sort of notice on it or for the driver to be informed somehow of how the DriveCam is installed, so that they can be sure that when they are getting changed in the cabin of a truck, that the DriveCam - there's no possibility that a DriveCam will be recording.
PN1402
THE COMMISSIONER: So they would have to be getting dressed or undressed at the time a g-force incident occurred.
PN1403
MR WARNES: That's right, yes. And, I mean, although we have no examples of that happening, I don't think it's beyond the realm of possibility that that could happen.
PN1404
THE COMMISSIONER: It's not beyond the realm of possibility, no.
PN1405
MR WARNES: No, it's not. And we accept that there's no evidence of it happening in the past. We're not saying it hasn't happened in the past, but there's no evidence of it happening in the past. The likelihood is, Commissioner, and the way DriveCam works is that no-one would know whether it happened or not because the footage would beam to the United States and the United States would simply mark it as a non-event.
PN1406
And there's every chance a Linfox manager at our end might view it, but there's every chance they won't as well, because of the way it has been marked by the people in the United States viewing the footage.
PN1407
THE COMMISSIONER: Never forget I'm dealing with the balance of probabilities.
PN1408
MR WARNES: Of course. So if that fell into place and the audio was dealt with and certain issues surrounding the use of the footage in terms of disciplinary action were in place, then there would be no issue from the TWU in relation to the operation of DriveCam.
PN1409
THE COMMISSIONER: I've already made comments about the disciplinary implications. No matter what's - I will just repeat them in broad summary - no matter what company policy is in place, each case of disciplinary action either resulting in termination or resulting in some other sanction is subject to examination on its own facts by the commission if it's challenged. Companies have often waved policies at me; doesn't necessarily - it doesn't get them out of it if they've done the wrong thing.
PN1410
MR WARNES: No. And I would agree with that.
PN1411
THE COMMISSIONER: As far as I know, the DriveCam policy is not incorporated into the enterprise agreement.
PN1412
MR WARNES: No.
PN1413
THE COMMISSIONER: So it would have force if it was reasonable in itself and applied reasonably.
PN1414
MR WARNES: Yes. I would agree with that.
PN1415
THE COMMISSIONER: There's not a variation to enterprise agreement being discussed.
PN1416
MR WARNES: No, that's right. Just in relation to the evidence surrounding the sleeper cabin material: in the unchallenged evidence of Mr Waltas and Mr Miller, to an extent - obviously my friend is going to say something about that - both have given evidence that at various times the cabin is used as a change room and a bedroom. You can find that at paragraphs 37 to 45 of exhibit TWU4.
PN1417
THE COMMISSIONER: Don't trucks have curtains on those areas?
PN1418
MR WARNES: Yes, they do, but there is - I could take you directly to it. There's actually a picture of a cabin in Mr Waltas's statement.
PN1419
THE COMMISSIONER: I will take your description of it, but I thought it was - obviously it's not in the front of the truck, it's in the back. And from my limited interaction with trucks there's some sort of curtain that the driver closes when he goes in there, because he doesn't want to be observed from outside, let along by the DriveCam.
PN1420
MR WARNES: Yes, there is a curtain. There is a curtain, Commissioner.
PN1421
THE COMMISSIONER: And he closes that, doesn't he, so some passing cretin can't see him.
PN1422
MR WARNES: In a perfect world he probably would, yes.
PN1423
THE COMMISSIONER: Unless he's an exhibitionist.
PN1424
MR WARNES: Yes. The area behind - it's not a luxurious bedroom, Commissioner, let's put it that way. It is probably a foot or 30 centimetres wide, maybe a little bit wider, and it's just a foam mattress. It's not a bed, so to speak.
PN1425
THE COMMISSIONER: It's a cubbyhole.
PN1426
MR WARNES: It's a cubbyhole, essentially, yes. How the curtains - what the practice of curtains being drawn or not is, we can't put it any higher than that.
PN1427
THE COMMISSIONER: It's only the existence of curtains which would matter, not ‑ ‑ ‑
PN1428
MR WARNES: No, and that's right.
PN1429
THE COMMISSIONER: If the driver chose not to close them, then any result would be on him.
PN1430
MR WARNES: That's right, but there are circumstances - and it was admitted by Mr Jones in cross‑examination, and I think Mr Waltas put it - is that drivers also get changed in the normal cab when they're driving, say, from Sydney to Tarcutta and back to Sydney. There's no curtain in existence there.
PN1431
THE COMMISSIONER: Would they have to, or would they make a personal choice to disrobe in front of the DriveCam?
PN1432
MR WARNES: No. I can't respond to that, Commissioner.
PN1433
THE COMMISSIONER: I think one can intuit that it would be a choice.
PN1434
MR WARNES: This is like the TWU's entire case is if appropriate safeguards are put in place, that would not be an issue. If the DriveCam was installed properly, that would not be an issue.
PN1435
THE COMMISSIONER: What does "installed properly" mean?
PN1436
MR WARNES: There are three methods of installation, Commissioner: there's standard mode; there's sleeper mode, I think it's called; and then there's constant mode. So constant mode allows the DriveCam to record all the time, it's always on, even when the truck is off. Sleeper cam, I think the DriveCam turns off when the ignition is turned off, but the accessories are still allowed to operate. And standard mode just means that it turns off when the actual truck is turned off, so when everything is turned off on the truck. So there are three different methods of installation.
PN1437
THE COMMISSIONER: It's basically the same as an in-car camera for a normal car, isn't it? The one I bought after losing two wing mirrors turns on in a sleeper mode if there's a bump.
PN1438
MR WARNES: Yes. And that's how DriveCam operates, so if there's a g-force event ‑ ‑ ‑
PN1439
THE COMMISSIONER: But it doesn't do that unless I push a button to make it do that when I park.
PN1440
MR WARNES: I don't know if that's how DriveCam operates as such. I think it's just an automatic system. I don't think ‑ ‑ ‑
PN1441
THE COMMISSIONER: It's a sophisticated in-car camera. That's about all it seems to be.
PN1442
MR WARNES: Probably a good day to describe it, yes.
PN1443
THE COMMISSIONER: And one day I will catch the fella that hits my wing mirror.
PN1444
MR WARNES: It sounds like yours, Commissioner, you can switch between these three modes with a click of a button. I don't think on the DriveCam, it can do that.
PN1445
THE COMMISSIONER: I can operate it all the time when I'm driving, such as when I turn off the ignition it's not working; I can choose not to operate it; or I can put it into - I think it's called sleeper mode - when I park it so that if there's a g-force incident it will record the malefactor who caused it.
PN1446
MR WARNES: Yes. It sounds like in that scenario you're turning your camera onto constant mode, sorry, which is how the DriveCam records all of the time.
PN1447
THE COMMISSIONER: There's off, constant and sleeper.
PN1448
MR WARNES: Yes, okay. It sounds like you can do all three, whereas in these trucks the wiring is different for each mode.
PN1449
THE COMMISSIONER: Mine only points outwards, of course.
PN1450
MR WARNES: Sensible way to use those cameras, Commissioner. Moving on to the provisions of the enterprise agreement, I've taken you to where we say the commission has a jurisdiction to determine other laws in any dispute between Linfox and the TWU.
PN1451
THE COMMISSIONER: Yes.
PN1452
MR WARNES: Linfox has submitted in their submissions that clause 31, which is new technology, gives them an unfettered right to install and use DriveCam in their vehicles.
PN1453
THE COMMISSIONER: Let's have a look at that.
PN1454
MR WARNES: And that that overrides any surveillance legislation that exists, at least on a state level. The first thing we would say about clause 31 is that it's not a provision conferring a right on Linfox beyond the regular exercise of managerial prerogative. In fact, we say that the way clause 31 operates is that it's intended to fetter the right that Linfox otherwise would have in relation to utilising new technology in the workplace.
PN1455
The clause places an obligation on Linfox to consult before it installs new technology, which it otherwise may not have been required to do under the mandatory consultation clause at clause 32. The end of the clause also reads:
PN1456
Employees will cooperate following appropriate training.
PN1457
We say that if the parties had intended to confer an unfettered right to install DriveCam, firstly it would have specifically stated the word DriveCam. And nevertheless, despite that, it was clearly, on the evidence - and it's contained at Mr Jones' evidence that I can take you to if need be - that there was clearly an intention to roll out this technology at the time of the negotiation of this enterprise agreement.
PN1458
THE COMMISSIONER: Why is it not a truck monitoring device, to quote the words at clause 31?
PN1459
MR WARNES: It is a truck monitoring device, Commissioner.
PN1460
THE COMMISSIONER: Therefore it is included.
PN1461
MR WARNES: No, we say it's included, absolutely. But what I'm saying is DriveCam was an ‑ ‑ ‑
PN1462
THE COMMISSIONER: Why wasn't it named?
PN1463
MR WARNES: No. DriveCam was an issue when this enterprise agreement was negotiated. If there was any intention of the parties to include DriveCam in this enterprise agreement, then it would have specifically done so. We say it was a contentious issue, going off the letters between Michael Aird, the assistant secretary of the TWU at the time, and Mr D apice in Mr Jones's evidence. And as I said, it seems as though the issue was unsettled by the time that this agreement was approved.
PN1464
THE COMMISSIONER: Okay. I will look at that evidence.
PN1465
MR WARNES: It's difficult to say that - I mean, I think it would be impossible to say that this clause was intended to operate to allow Linfox an absolute right to install these cameras, when it was clearly still in dispute. Without a clause like clause 31 that carries the meaning that Linfox wants that clause to mean, any submissions raised in relation to section 7395 lack any merit.
PN1466
Any decision of the commission that DriveCam is not lawful or is unjust and unreasonable in the Linfox workplace would not be inconsistent with the agreement without a clause specifically saying that it could install DriveCam. All clause 31 requires is that consultation occur.
PN1467
A decision of this commission, perhaps, that required the parties to reach agreement on the installation of new technology would perhaps be inconsistent, but we say that the clause, as it currently stands, doesn't give Linfox a right to implement the technology per se; but rather, imposes an obligation on Linfox to consult prior to doing it.
PN1468
We don't stand in the way that normally - or just as a matter of law - that Linfox has a right to make managerial decisions, but of course, given the established authority ‑ ‑ ‑
PN1469
THE COMMISSIONER: I also don't have the power to find that the action was unlawful.
PN1470
MR WARNES: The action?
PN1471
THE COMMISSIONER: Well, anything to do with the DriveCam; action by Linfox relating to its installation, utilisation, et cetera, was unlawful.
PN1472
MR WARNES: No.
PN1473
THE COMMISSIONER: You mentioned the word "unlawful", that's why I've stopped you.
PN1474
MR WARNES: No. It's perhaps the wrong use of the word, Commissioner. Linfox have brought up an issue in relation to section 109 of the Australian Constitution. I don't want to take you too far to that, but I would refer the commission to section 27 of the Fair Work Act, which states that the Fair Work Act does not operate to exclude state laws insofar as they apply to an employee in relation to workplace surveillance. That's section 27(2)(m). I do have further submissions on that, but I will only go to them if that issue continues to be agitated by Linfox in their submissions.
PN1475
THE COMMISSIONER: I've rarely looked at section 27. May I just have a moment.
PN1476
MR WARNES: I unfortunately had a case in the IRC with this.
PN1477
THE COMMISSIONER: My God, if we have constitutional law now as well it's going to be fun.
PN1478
MR WARNES: So it's 27(2)(m), we refer to, Commissioner.
PN1479
THE COMMISSIONER: (2)(n)?
PN1480
MR WARNES: (m)
PN1481
THE COMMISSIONER: (m) yes. Yes.
PN1482
MR WARNES: We say that despite section 109 of the Constitution, the Act is not designed to cover the field, so to speak, as the authorities on section 109 prescribe.
PN1483
THE COMMISSIONER: All right. So your argument is the company is subject to the New South Wales Surveillance Devices Act 2007.
PN1484
MR WARNES: That's right, yes.
PN1485
THE COMMISSIONER: And you are supported, you say, by section 27 of the Fair Work Act.
PN1486
MR WARNES: Yes, that's correct, Commissioner. Commissioner, I would like to take you now to the provisions of the Telecommunications Interception and Access Act, which we've referred to in our initial submissions. We say that the provisions of that Act, which is an Act of Federal parliament, prevents Linfox from recording audio inside the cabin of the truck.
PN1487
Should the camera record any snippets of a - it s not, for the purposes of this Act, a private conversation - just a conversation, which all witnesses have seemed to concur will and has happened, this is, on our submission, an interception for the purposes of section 6(1) of what I will refer to as the TIA Act. I should put to you, Commissioner, I have included the relevant sections in the book that I handed up, but I do also note that the entire Act is included in the bundle of documents that Linfox has provided you as well.
PN1488
THE COMMISSIONER: I'm looking at the one in your folder. I'm currently looking at the Telecommunications Interception and Access Act 1979, section 6.
PN1489
MR WARNES: Yes.
PN1490
THE COMMISSIONER: You've drawn my attention to the first subparagraph, being (1), of course. But the magic words are at the end, aren't they, "Without the knowledge of the person making the communication."
PN1491
MR WARNES: That's right, yes.
PN1492
THE COMMISSIONER: A notice in the cab would be a cure for that, wouldn't it?
PN1493
MR WARNES: The what, sorry?
PN1494
THE COMMISSIONER: A notice in the cab of the truck would cure that?
PN1495
MR WARNES: Yes. I mean, the presence of the camera there and training would cure that as well, but it doesn t cure it for the person on the other end of the line, Commissioner. The person on the other end of the line cannot know that their conversation is going to be intercepted by this device.
PN1496
THE COMMISSIONER: Yes. But wasn't the evidence that the person on the other end of the line wouldn't be able to be successfully recorded? I think that was Mr Bowbyes' evidence, from memory.
PN1497
MR WARNES: I think he said that they're often muffled. I don't think there is sufficient evidence to indicate that the words could not be heard, and I don't think that was denied by any other witnesses. All witnesses seemed to concur that private conversations could occur. I also put to Mr Bowbyes that how is it that the DriveCam can clearly record a blinker sound or an indicator sound, but it couldn't record a conversation that comes out of a speaker in a truck?
PN1498
THE COMMISSIONER: It would seem logical, just based on my knowledge of the use of Bluetooth, that it comes out, and depending on the volume you set it at, it can come out very loudly or very softly.
PN1499
MR WARNES: Yes. I don't think that the commission should accept that evidence, that you cannot hear through the DriveCam something coming out of Bluetooth.
PN1500
THE COMMISSIONER: I'm just noting that there was evidence to that effect.
PN1501
MR WARNES: Yes, and I believe that, and I don't ‑ ‑ ‑
PN1502
THE COMMISSIONER: All right, so we've done the federal act, what about the state act?
PN1503
MR WARNES: I'm not quite finished with the federal act yet, Commissioner. Linfox has brought up sections 5F, which I've included in our bundle of documents there, and 5H, which are provisions that were inserted in 2006 for the purposes of, I suppose, keeping up with the increasing use of communications technology, email, SMS, things like that. 5F has set out when a communication is deemed as passing over a telecommunications system, and it defines it as:
PN1504
Passing over that communications system up to the point when the communication becomes accessible to the intended recipient.
PN1505
Section 5H of the TIA Act sets out when the communication is accessible to the intended recipient. Linfox places considerable weight on this in their written submission to argue that the Act doesn't apply in these circumstances. We say that this section 5H actually assists the TWU in its case. It sets out when a communication is accessible to its intended recipient. Importantly, subsection (2) of 5H states that subsection (1) does not limit the circumstances where a communication may be taken to be accessible.
PN1506
This was given support in the Crown v Catena, which is in our authority book at tab 9. It's a decision of the Supreme Court of Western Australia. They considered the provisions. It's given support at paragraph 65 where Heenan J has said that:
PN1507
Section 5H(2) suggests that whatever may be the intended purpose or scope of s 5H(1), it should not be regarded as an exclusive code for determining when a telephone conversation becomes accessible to the caller over the telecommunications network.
PN1508
That case was in relation to a - I believe it was a prosecution for insider trading, and it was in relation to a system called NICE, which was essentially a company system which was set up to record the telephone calls of its employees. In the end it was deemed that the Telecommunications Act didn't apply to that, but there are some very, very relevant comments made by Heenan J in that case from paragraphs 61 through 65 in relation to the changes made in 2006 to the Telecommunications Interception and Access Act.
PN1509
We say that any phone conversation that takes place between a driver subject to DriveCam surveillance and another person who is protected by the Telecommunications Interception and Access Act, as it's recorded in two manners: first recording is between when the communication leaves the mouth of the driver or it's transmitted, for the purposes of section 5F(a), and it continues to the person on the other end of the phone; the other type of recording is when the person on the other end of the line speaks, the communication leaves that person's phone, the communication goes through the phone line, comes out the Bluetooth system, or whatever system the driver is using to take the phone call, and it then travels through to the air to the driver's ear.
PN1510
What we say appears to be important is when the actual recording takes place. I think it's unfortunate in this matter that we couldn't get clearer evidence on this, but it would appear to depend upon what is closer to the speaker from which the communication is, or emanates, or is broadcast from. Unfortunately, as I say, there's no evidence of what's closer, the driver or the speaker.
PN1511
We did hear evidence from - I believe it was Mr Hensworth that the camera is approximately one metre from the driver's head. We say ‑ ‑ ‑
PN1512
THE COMMISSIONER: I think that was his best guess.
PN1513
MR WARNES: Best guess, yes. And I think that's the highest the evidence goes before the commission. We say that if the speakers are closer to the camera, then the call is recorded before the communication becomes available to the driver, thus falling within the protection in section 7 of the TIA Act.
PN1514
THE COMMISSIONER: If the call is company-related, work-related, would you see there's a problem with it being recorded?
PN1515
MR WARNES: No. That's section 6(1), and that's because ‑ ‑ ‑
PN1516
THE COMMISSIONER: So if the driver is therefore making private phone calls utilising the employer's apparatus, is there no obligation on that driver to inform the person on the other end that the call may be recorded?
PN1517
MR WARNES: That doesn't cure an interception in this ‑ ‑ ‑
PN1518
THE COMMISSIONER: We all know that virtually whenever you ring anything - anybody now - commercially you're warned that it might be recorded; normally they say for training purposes, I think, but I think it's wider than that.
PN1519
MR WARNES: And that's because of the operation of this Act. I believe that Linfox has attempted to cure that in the draft policy that it has presented to the commission in the proceedings yesterday.
PN1520
THE COMMISSIONER: Are you saying that they haven't cured it?
PN1521
MR WARNES: There is the chance that they have cured this under the TIA Act if the person is then taken to have knowledge that the call will be recorded. I do acknowledge that. But once again, that would depend on the driver actually saying those words, in which case we would say there would actually have to be very, very, very extensive training given to the driver, because I have to say from my personal experience if someone said to me every time you pick up a phone call you have to tell them that it might be recorded, that would be something that would take a very long time to get used to.
PN1522
THE COMMISSIONER: Would it? Wouldn't it just take someone saying, "I should let you know that this call might be recorded?"
PN1523
MR WARNES: No. And, of course, it would, but if a driver is taking as many phone calls as Mr Waltas is giving in his evidence, it's going to be very difficult for a driver to even remember. It might become second nature. That's fantastic.
PN1524
THE COMMISSIONER: What if the company turned around and cured your problem by saying the drivers will be forbidden to make private phone calls?
PN1525
MR SHARIFF: Exactly.
PN1526
MR WARNES: We would say that would be completely unfair and unjust as well.
PN1527
MR SHARIFF: You can't have it both ways.
PN1528
THE COMMISSIONER: No comments, Mr Shariff. You get your chance.
PN1529
MR WARNES: He's been doing it the whole time.
PN1530
THE COMMISSIONER: In the case you quoted from the Supreme Court of Western Australia there's some discussion there by the good judge about beeps and the audibility of beeps.
PN1531
MR WARNES: Yes, there is.
PN1532
THE COMMISSIONER: A lot of it seems to - the outcome of it seems to depend on acceptance of the evidence of one of the accused that he wasn't aware of the beeps.
PN1533
MR WARNES: Yes.
PN1534
THE COMMISSIONER: And evidence that the beeps could be turned down. So I will be looking at that as well.
PN1535
MR WARNES: The Act is designed to protect the privacy of telecommunications in Australia.
PN1536
THE COMMISSIONER: It is.
PN1537
MR WARNES: Obviously I would say that the Act was originally made to stop what's known as phone tapping, when people attach devices to the actual telephone line. The Act has evolved since that time with different forms of communication. With mobile communication, you can't tap a physical wire and it has to be recorded in other means. There is, in the Act, a definition of what an interception is. An interception is a recording of a telecommunication passing over the telecommunications network.
PN1538
THE COMMISSIONER: Okay.
PN1539
MR WARNES: I would move on now to the Surveillance Devices Act. What has been levelled against the TWU is that there is a requirement that Linfox know, for the purposes of section 7(1) of the Surveillance Devices Act, that the audio recording capacity of DriveCam can record private conversations - or will record private conversations, rather. We say that Linfox do know that the device is going to record private conversations, only each of the witnesses have said that it has in the past and it will in the future record private conversations.
PN1540
As I said, this is acknowledged in the written evidence provided by Mr Bowbyes at paragraph 28 and Mr Clulow at paragraph 42, as well as in cross-examination. As a matter of construction, we say that the words in section 7 cannot be interpreted to mean what Linfox say they mean. To attribute the meaning to the words "knowingly" and the words "to" in section 7 ‑ ‑ ‑
PN1541
THE COMMISSIONER: Just hang on, you've got ahead of me.
PN1542
MR WARNES: They're the relevant sections, they're at tab 2.
PN1543
THE COMMISSIONER: Yes, I've found tab 2, I just haven't found the beach. Okay, section 7, yes.
PN1544
MR WARNES: Section 7. You can see:
PN1545
A person must not knowingly install, use or cause to be used, or maintain a listening device to overhear, record, monitor or listen to a private conversation to which a person is not a party.
PN1546
Linfox have placed considerable weight on "knowingly" and the word "to" at the beginning of section 7(1)(a).
PN1547
We say that those two words by themselves, they don't serve to make any unintentional recording lawful. If section 7 was only meant to prevent intentional recordings of private conversations, then we say that would render section 7(2)(c) irrelevant. Section 7(2)(c) reads:
PN1548
Subsection (1) does not apply to the unintentional hearing of a private conversation by means of a listening device.
PN1549
That has obviously envisaged that certain unintentional hearing of private conversations won't be covered by the general prohibition in section 7(1). We would say that that section wouldn't be necessary if the meaning given to the words "knowingly" and the word "to" in section 7(1)(a) were to be given the meaning that Linfox contends.
PN1550
Further - I don't have it here, unfortunately - I would note that in section 3 of the Workplace Surveillance Act - and I don't have a copy, I can make one available to you after the hearing, Commissioner. Section 3 of the Workplace Surveillance Act ‑ ‑ ‑
PN1551
THE COMMISSIONER: I've got it. You've given it to me. I'm reading it.
PN1552
MR WARNES: Not section 3, I don't think.
PN1553
MR SHARIFF: No, we've given the whole Act.
PN1554
MR WARNES: Okay.
PN1555
THE COMMISSIONER: It's in this black folder from you.
PN1556
MR WARNES: I don't think section 3 is. No, I haven't given you section 3, Commissioner.
PN1557
THE COMMISSIONER: Read section 3 to me.
PN1558
MR WARNES: I've just been told by Mr Shariff that the Workplace Surveillance Act is actually in Linfox's bundle. It's very helpful.
PN1559
THE COMMISSIONER: But what about - and this is what I was looking at in error, but it's now apposite - section 7 subsection (3)(b)(i).
PN1560
MR WARNES: Subsection (3) applies to the prohibition in section 7(1)(b), Commissioner, rather than section (1)(a). That's when someone who is a party to the private conversation makes the recording, rather than a third party.
PN1561
THE COMMISSIONER: Yes, which is the situation here, is it not?
PN1562
MR WARNES: No. In this situation it's Linfox making the recording.
PN1563
THE COMMISSIONER: Yes.
PN1564
MR WARNES: That's why I haven't taken you to that subsection, Commissioner.
PN1565
THE COMMISSIONER: Fair enough.
PN1566
MR WARNES: Because that exception only applies to (1)(b).
PN1567
THE COMMISSIONER: I will go to the Linfox folder. It's in volume 1, is it?
PN1568
MR WARNES: Volume 1, yes.
PN1569
THE COMMISSIONER: What tab is it?
PN1570
MR WARNES: Tab 10. It's on the second page, Commissioner, when you get there.
PN1571
THE COMMISSIONER: Yes.
PN1572
MR WARNES: This Act is intended to cover, I suppose, the field in relation to workplace surveillance, but there's a note. It's under the definition of surveillance about halfway down page. The notes says that:
PN1573
This Act does not apply to the surveillance by means of a listening device.
PN1574
Section 4(3) of the Surveillance Devices Act 2007, that's where that note comes from.
PN1575
Camera surveillances regulated by this act will also be regulated by the Surveillance Devices Act 2007 if the camera is used to record private conversation.
PN1576
The reason I take you to that is in relation to the possibility of the Surveillance Devices Act being used in a workplace. Any contention that the Surveillance Devices Act is meant for other purposes, we think is defeated by that section.
PN1577
We say that it's a difficult concept to reconcile whether the purpose of the listening device for the purpose of the Surveillance Devices Act had to be specifically to record a particular conversation; whether that's the case or not. We say that the purpose doesn't have to be specifically to record private conversations, but it merely has to be part of the purpose, or a possibility that the surveillance of a particular area ‑ ‑ ‑
PN1578
THE COMMISSIONER: Part of the purpose or part of the consequence?
PN1579
MR WARNES: Part of the purpose, to record words spoken. That's what we say that's how ‑ ‑ ‑
PN1580
THE COMMISSIONER: You can't discern anything the company has put so far that they have an intention to record private conversations. They're are saying that - their witnesses are saying that on their evidence, rare occasions, that might inadvertently occur, which is a very different thing from being a purposeful action.
PN1581
MR WARNES: I absolutely understand that, Commissioner, but the frank acknowledgement that it does record private conversations is enough, we say. Linfox cannot possibly say that they're not knowingly recording private conversations.
PN1582
THE COMMISSIONER: This hasn't raised its head as a basic problem in any of the other states and/or companies that have installed this technology?
PN1583
MR WARNES: I believe that ‑ ‑ ‑
PN1584
THE COMMISSIONER: Is Linfox alone in the capacity to record the odd snippet a private conversation?
PN1585
MR WARNES: As I said, I believe it was a concern of Mr Smith in South Australia, and I would have to go and look at his evidence again to make sure of that for you.
PN1586
THE COMMISSIONER: It was a concern, but the technology is in there.
PN1587
MR WARNES: Yes. And I don't believe it has come up to this point in time.
PN1588
THE COMMISSIONER: My own private delving, particularly into the decision by Gregory C, which I've adverted to on other occasions, does go through all that. If there was - this is purely just a shot in the dark - if there was some recording on the phone in the cab which said to people, "This conversation may be recorded," does that solve all problems?
PN1589
MR WARNES: If there was a what, sorry, Commissioner?
PN1590
THE COMMISSIONER: If there was a statement made by one of these disembodied voices that you get on these things that said when the phone was picked up at the other end, "This conversation might be recorded," that cures everything, wouldn't it?
PN1591
MR WARNES: Yes, I think so. That's why when you call a - say, Optus or Telstra, whichever telco you use or whoever you're calling, they say, "This phone conversation may be recorded," because that is what is required under the surveillance legislation in this state, to make all parties to the conversation aware that the conversation is being recorded.
PN1592
In relation to the purpose argument, Commissioner, we draw the commission's attention to tab 2 of our book - actually, I don't think it's tab 2, tab 3 - that's a recent decision of the New South Wales Supreme Court in Meriton Apartments v the Owners Strata Plan. That was in relation to - the court considered whether certain CCTV footage breached the Surveillance Devices Act and whether evidence of what the CCTV footage had captured should be allowed in.
PN1593
The CCTV footage, we say is very similar to what DriveCam will be doing, in that its recording indiscriminately. It's not there for a particular purpose, it's there to record whatever happens in a particular area. That case was to do with a breach of a caretakers' agreement applicable to the World Square Apartments in Pitt Street in the city.
PN1594
From paragraph 351 the court considered the provisions of the Surveillance Devices Act. I would note that there was no argument put - and one would assume that there would be - but there was no argument put that the listening device was not intended to record private conversations. In fact, the court stated purpose for CCTV at paragraph 359 when it considered that:
PN1595
The use of the listening device is reasonably necessary for the protection of the lawful interests of one of the parties to the conversation .
PN1596
When the court said - this is towards the end of paragraph 359 - that:
PN1597
The self-evident purpose of the CCTV camera was to provide security for employees, and residents officers of Mid Rise against strangers who may visit that part of the building.
PN1598
So clearly the CCTV footage's purpose wasn't to record private conversations. It was not to record private conversations. In that case I believe the evidence was admitted, but on the basis that it:
PN1599
Is reasonably necessary for the protection of the lawful interests of one of the parties to the conversation.
PN1600
Rather than because the purpose of the listening device was not to record a particular conversation.
PN1601
THE COMMISSIONER: That's the situation here, is it not? That the purpose of the DriveCam is to protect the lawful interests of Linfox, and also to protect the interests of the driver in a lot of instances. It's certainly not ‑ ‑ ‑
PN1602
MR WARNES: That's the contention is that Linfox put, yes.
PN1603
THE COMMISSIONER: I mean, it would be a terrific stretch, in my view, to say that there was a purpose of recording private conversations.
PN1604
MR WARNES: Yes, but the test under section 7(3)(b) of the Surveillance Act, which we say also doesn't apply because is recorded by one of the parties to the conversation; but the test is that:
PN1605
It is reasonably necessary for the protection of the lawful interests of one of the parties to the conversation.
PN1606
That's got nothing to do with the purpose, Commissioner. That's not what we draw you to on that point.
PN1607
THE COMMISSIONER: Okay. I still come back to this point, that if - there is no obligation on Linfox to provide phone access for private telephone conversations, as far as I can work out - it might be a reasonable thing to do in the case of long-distance truck drivers, but there's no obligation to do it. Why would it be unreasonable to cure the problem you've raised by issuing an instruction to drivers: you are allowed to use - better wait till I've finished the point. Okay.
PN1608
MR WARNES: Okay, I will. Sorry.
PN1609
THE COMMISSIONER: Now I've lost my train of thought. Why would it not be reasonable for Linfox to say to the drivers in writing, at a meeting or whatever, preferably in writing: we're happy for you to make reasonable use of the truck phone for your private conversations, but be aware that DriveCam might pick up snippets of those conversations, and you are therefore obligated to inform any person that you telephone that their conversation with you may inadvertently be recorded.
PN1610
MR WARNES: Sorry, Commissioner.
PN1611
THE COMMISSIONER: That's okay.
PN1612
MR WARNES: As I said previously, Commissioner ‑ ‑ ‑
PN1613
THE COMMISSIONER: Why would that not be a cure - or would that not be a cure?
PN1614
MR WARNES: I think that's what Linfox has sought to do when they sprung that new policy on this yesterday morning, and unfortunately I think it would have been useful if that was given to us a week ago rather than on the morning of the first day, but I won't go into that. I think that ‑ ‑ ‑
PN1615
THE COMMISSIONER: Well, you were provided with time.
PN1616
MR WARNES: I understand that.
PN1617
THE COMMISSIONER: And I will provide you with more time to consult with your instructors now if you want.
PN1618
MR WARNES: I'm not for one moment saying that if on every occasion a telephone call was made or received by driver, they stated that it could be recorded, that wouldn't cure it, because I believe under the legislation - and I obviously have a duty to this commission - I think it would, but the problem is in practicality how that would work. We would say there would have to be ‑ ‑ ‑
PN1619
THE COMMISSIONER: If a person failed to do it, then the privilege could then be withdrawn, could it not?
PN1620
MR WARNES: I suppose in theory that's right, Commissioner.
PN1621
THE COMMISSIONER: It might be a bit like: you're welcome to eat your lunch in the yard, but if you throw your rubbish around, you will have to eat it somewhere else.
PN1622
MR WARNES: I suppose that's an appropriate analogy. As I said, I think that if the appropriate training was provided, then that perhaps would cure it.
PN1623
THE COMMISSIONER: Your members are not unintelligent people. I mean, the appropriate training would be: this is what you've got to do. I mean, what would the training involve? You know, memorising the short message.
PN1624
MR WARNES: You would have to get across what the reason for them having to do it, because ‑ ‑ ‑
PN1625
THE COMMISSIONER: I mean, even if the driver said to somebody, "Careful, cobber, they might be listening in," that would be enough, wouldn't it?
PN1626
MR WARNES: Yes. But you're substantially changing what they've done to their entire careers, so it's not going to be a smooth - every time you pick up the phone you automatically think, "I've got to tell someone this might be recorded." There are practical issues there.
PN1627
THE COMMISSIONER: But, look, there are practical issues and there - I mean, there were practical issues when we changed over to decimal currency or we changed over to metric.
PN1628
MR WARNES: We put seatbelts ‑ ‑ ‑
PN1629
THE COMMISSIONER: Both of those were supposed to never, ever be able to be got across by anybody over the age of 50, and somehow everybody managed.
PN1630
MR WARNES: I understand that.
PN1631
THE COMMISSIONER: I've got to tell you in my view that would be a cure, because this case is narrowing down and narrowing down and funnelling down to the point where the only problem is the possible recording of a private - or third-party, I suppose - who participates in a private conversation with a Linfox truck driver who is driving a Linfox truck and might be involved in a g-force incident at the time that that occurs.
PN1632
If everyone knew that recording might occur, and that can happen by a notice in the cab, which I think there's some evidence that there is a notice or will be notice on the dashboard.
PN1633
MR WARNES: "Subject to surveillance", yes. That's in Mr Jones's statement.
PN1634
THE COMMISSIONER: I get the same notice every time I log on to the commission's web site or internal system. It tells me it is under constant monitoring and therefore I should not access anything unpleasant.
PN1635
MR WARNES: It's comforting to know, Commissioner.
PN1636
THE COMMISSIONER: I find most of it unpleasant, but apart from that ‑ ‑ ‑
PN1637
MR WARNES: It's not what it's designed for, obviously.
PN1638
THE COMMISSIONER: Do you just want to have a bit of a think about this and talk to your people? I realise I have breast you hard this morning on a lot of things, and it is hard on your feet to suddenly come to all these obscure points that people like me tend to raise. Do you want a few minutes to think about some of this?
PN1639
MR WARNES: Yes, that might be helpful.
PN1640
THE COMMISSIONER: I think it's fair. Also, I would love break at this time of the morning. About 11.30.
SHORT ADJOURNMENT [11.18 AM]
RESUMED [11.46 AM]
PN1641
THE COMMISSIONER: Mr Warnes.
PN1642
MR WARNES: Commissioner, thank you for that opportunity. I think it's appropriate at this stage to concede the point that a requirement such as what we were discussing before the adjournment for a driver to advise the caller at the other end of the line that the phone call is being recorded would satisfy the exceptions in the TIA Act and the SD Act. So, so long as the policy contains a clause of that nature, which I believe in the LINFOX2 it does, then that satisfies those ‑ ‑ ‑
PN1643
THE COMMISSIONER: Yes, I've just been paying close attention to 5.4.3 of LINFOX2 and it appears to do that.
PN1644
MR WARNES: Yes. Yes, so we say that that satisfies those ‑ ‑ ‑
PN1645
THE COMMISSIONER: So I think you're faced with a situation here, Mr Warnes, where the conversations that you're concerned about occur by grace and favour of the employer.
PN1646
MR WARNES: That's right to a point, Commissioner.
PN1647
THE COMMISSIONER: But there's no obligation on them to facilitate private conversations.
PN1648
MR WARNES: Yes, and I'd rather not go into that at this point just because we ‑ ‑ ‑
PN1649
THE COMMISSIONER: I don't think we'll go any further with it.
PN1650
MR WARNES: Yes.
PN1651
THE COMMISSIONER: I'm just tipping you off.
PN1652
MR WARNES: Yes, we would say that it would be difficult for the employer to prohibit an employee from doing that.
PN1653
THE COMMISSIONER: More than that, it would be utterly unreasonable of the employer ‑ ‑ ‑
PN1654
MR WARNES: Yes, that would be ‑ ‑ ‑
PN1655
THE COMMISSIONER: No, I think it might be wise ‑ ‑ ‑
PN1656
MR WARNES: That would be our argument but ‑ ‑ ‑
PN1657
THE COMMISSIONER: ‑ ‑ ‑ to let me finish this statement from your point of view. It would be utterly unreasonable of the employer in the case of truck drivers to prohibit private conversations while they're driving. Don't get me wrong about that. I'm just saying that the employer when faced with the points you've raised could possibly seek to cure any perceived problem by going to that position, but it would not be a reasonable position to go to.
PN1658
MR WARNES: Thank you, Commissioner.
PN1659
THE COMMISSIONER: That sort of solves a couple of 739s, doesn't it, in advance?
PN1660
MR WARNES: I would hope so.
PN1661
THE COMMISSIONER: Yes.
PN1662
MR WARNES: For my sake.
PN1663
THE COMMISSIONER: Well, given that concession, sir, that's it isn't it?
PN1664
MR WARNES: No, there's two further points, Commissioner. I believe that ‑ ‑ ‑
PN1665
THE COMMISSIONER: There always are. Yes.
PN1666
MR WARNES: I believe that one point can also be solved as we sit today.
PN1667
THE COMMISSIONER: Yes.
PN1668
MR WARNES: That point is in relation to the Workplace Surveillance Act and the issue of change rooms. Now I recall that you brought up the issue of there's a curtain to cover the area. In fact I've been ‑ ‑ ‑
PN1669
THE COMMISSIONER: I asked if there were.
PN1670
MR WARNES: Yes, and I've been instructed since that time that there isn't. The curtain actually goes across the front windscreen. But before you give any further thought to that point, if the cameras are installed properly and there is a notice either on the camera or somewhere in the cab stating how the DriveCam in the particular cab is - truck is installed, and when it will record and when it won't record, so if it's on AV it will record, if it's not on AV it won't record, whatever the configuration is.
PN1671
THE COMMISSIONER: Yes.
PN1672
MR WARNES: Then that would cure the problems that we see arise with the Workplace Surveillance Act.
PN1673
THE COMMISSIONER: Right.
PN1674
MR WARNES: And I believe in the break - and my friend will tell you otherwise - that Linfox is willing to put such a notice in each truck.
PN1675
THE COMMISSIONER: Well, I would be strongly suggesting at the very least that they do so. Is there still a remaining problem?
PN1676
MR WARNES: Just in relation to the use of the cameras, or essentially how the cameras operate and the use of them to effect certain disciplinary outcomes, and I know you have an opinion on that, Commissioner, but I would seek to put some submissions in that regard.
PN1677
THE COMMISSIONER: Please do. I won't stop you.
PN1678
MR WARNES: Now first of all I'd put on the record that the TWU doesn't seek to dispute the numbers which Mr Nemtsas - I believe that's how it's pronounced - provided in relation to the safety outcomes that DriveCam achieves.
PN1679
THE COMMISSIONER: Yes.
PN1680
MR WARNES: We would have no - we wouldn't be in a position to challenge it. It would be close to impossible for us to challenge it and we wouldn't seek to if they do create those safety outcomes. We'd support that, and we say it's also logical to use available video technology to monitor movements of vehicles to show what went wrong in any type of accident. And as we envisaged earlier the frontward facing camera, the TWU has absolutely no issue with. Absolutely no issue. Never has had an issue in fact. Now we say that the use of the DriveCam to face the driver and to record their voice is an intrusive system, and keep in mind we're moving away from the breaches of State law at the moment.
PN1681
THE COMMISSIONER: Yes, yes.
PN1682
MR WARNES: We're talking about reasonableness. We say it's a very intrusive system and it's capable of significantly intruding on the privacy, be it governed by State law or not, the privacy that each employee working for Linfox has enjoyed throughout their entire career at Linfox. They've never been so closely monitored in their work before.
PN1683
THE COMMISSIONER: Sir, I can tell you I wouldn't like it. I wouldn't like it, but it's whether it can be prohibited.
PN1684
MR WARNES: Of course. Of course. One must remember that the majority of time spent at work for truck drivers, particularly the ones in this matter, is behind the wheel.
PN1685
THE COMMISSIONER: Yes.
PN1686
MR WARNES: So if a truck driver spends 12 hours on a shift it's perfectly reasonable to conclude that 10 of those hours would be inside the cabin of the truck subject to the surveillance.
PN1687
THE COMMISSIONER: Absolutely.
PN1688
MR WARNES: Now in a normal workplace employees who are monitored by surveillance cameras don't have a camera focussed directly on them for hours on end, and on the evidence of - I can't remember who it was now - Mr Hensworth I think, just one metre from their face.
PN1689
THE COMMISSIONER: Mr Hensworth has, as I keep saying, issued ‑ ‑ ‑
PN1690
MR WARNES: A guess.
PN1691
THE COMMISSIONER: A best guess.
PN1692
MR WARNES: A best guess.
PN1693
THE COMMISSIONER: When he was pressed by you - and I don't know why one of your members couldn't have applied a tape measure by now and you'd know exactly and I'd take their word for it.
PN1694
MR WARNES: Of course, and I don't think it's particularly relevant any more given the concessions made from the TIA Act. But I mean commonsense provides that the windscreen is not too far away from where the driver's sitting. So what I'm trying to say is it's quite close and focussed directly on them. We say it's perfectly reasonable for employees subject to that type of surveillance to feel intimidated, in some cases threatened or even scared about the introduction of the DriveCam technology, which has the capability to watch and hear them at any moment because of incidents that could be outside of their control.
PN1695
The concerns of a particular driver, which is Mr Waltas, is in exhibit TWU4 and Mr Miller in TWU exhibit 6. They weren't challenged except for in the reply evidence of the company, and the responses given in the reply statements provided by Linfox, or in their primary statements, seek to remedy that the issues that the drivers feel. But we say that if those concerns are capable of being remedied it would be perfectly reasonable for the employer to put those fixes into its policy. If Linfox intends to act in a certain manner towards the employees in relation to the concerns they have, there can be absolutely no reason why they wouldn't be written down in some form of document.
PN1696
THE COMMISSIONER: Yes.
PN1697
MR WARNES: We say that such an intrusive piece of technology being imposed onto the work lives of employees, it would be perfectly reasonable, as I just said, for an employer to have a fairly extensive and detailed policy to alleviate employee fears and to protect employee interests against any improper use of the technology by management or other individuals, and also to comply with the relevant laws and regulations which, as I said, our current policy is going to be amended to reflect or already has been.
PN1698
THE COMMISSIONER: Well, this is about hopes and fears isn't it?
PN1699
MR WARNES: It is. It is, Commissioner, but I just wanted to draw your attention to the fact that the bulk of the Linfox evidence, apart from the material talking about how safety outcomes can be achieved by using the DriveCam technology and certain incidents that have occurred, the bulk of it is directed towards saying that the concerns of the employees can be remedied in a certain manner, or the concerns of the employees wouldn't come about because of certain facts.
PN1700
THE COMMISSIONER: I think I can intuit and have sympathy for the view of drivers, that having your every movement monitored is not a good feeling. But we've moved beyond whether the company can have the technology in I think, and then we move into how it is used in practical situations, and each one of those is going to turn on its own facts.
PN1701
MR WARNES: We have sort of moved beyond that, Commissioner. I wouldn't take it as highly as moved beyond.
PN1702
THE COMMISSIONER: Maybe I have and you haven't. I don't know.
PN1703
MR WARNES: Well, yes, I don't think that in the end this is going to be a case where Linfox is either prohibited or allowed to continue with the technology. I think we're going to end up at a very similar place. Well, I would hope - my submission would be that we will end up at a very similar place as to where Commissioner Gregory's decision ended up in Victoria. Commissioner Gregory - we came to that. That's in tab 2 of Toll's material. In paragraph 86 he did state that guidelines that apply to their use would have to be established.
PN1704
THE COMMISSIONER: That's LINFOX2 isn't it so far?
PN1705
MR WARNES: That's LINFOX2 and that's in a final paragraph of the decision, and we say that that's the appropriate course here. Clearly now that the issues regarding surveillance and - well, we assume that the issues regarding the inward facing camera have been solved. Then there should be a, I suppose for want of a better way to put it, sophisticated policy there to enable employee protection but to allow Linfox to achieve the objective that it wishes to achieve by use of the DriveCam.
PN1706
THE COMMISSIONER: But on the evidence of Mr Bowbyes and others, employees have been acquainted with the technology. I mean they do know - I'm pretty sure they all know by now that there are two cameras, one pointing out and one pointing in. One is watching the road and one is watching them and it will record their actions.
PN1707
MR WARNES: I know and I don't think we're in a position to oppose that.
PN1708
THE COMMISSIONER: Yes, and as to a notice on the dashboard informing other persons, I mean that would have to be interpreted rationally in that there's probably a fairly closed set of people that each driver rings. I doubt they'd be required to tell their wife more than once that it might be recorded, or their girlfriend, or both. So they could do that on a sort of a basis of saying, "Look, in the future I think you should know that our conversation could be picked up by the system in the truck" right? Persons who they are speaking to for the first time or spoken to very irregularly, yes they could be informed on each occasion. But it would be pretty silly for the truck driver to be telling his wife every day and maybe, knowing most wives, 10 times a day that she might be recorded.
PN1709
MR WARNES: No, of course. Of course, and I think we have moved past that, Commissioner, yes.
PN1710
THE COMMISSIONER: Yes, well where are we at?
PN1711
MR WARNES: We're at the point of saying that under the current policy as it stands the operation of DriveCam would be seeking something that is unjust and unreasonable from the employees.
PN1712
THE COMMISSIONER: And what is that?
PN1713
MR WARNES: What is what, sorry, Commissioner?
PN1714
THE COMMISSIONER: What is unjust and unreasonable?
PN1715
MR WARNES: That's what I was taking you to.
PN1716
THE COMMISSIONER: Okay.
PN1717
MR WARNES: And that's as I put to you, I set the scene about the fact that drivers have never been subject to such close surveillance before. They're subject to surveillance unlike any other employee, we would submit.
PN1718
THE COMMISSIONER: And that's what it's all about.
PN1719
MR WARNES: In any workplace.
PN1720
THE COMMISSIONER: Yes.
PN1721
MR WARNES: That's right.
PN1722
THE COMMISSIONER: Yes.
PN1723
MR WARNES: And so we would say that there would have to be a sophisticated policy in place to deal with situations where drivers' concerns arise, and that's why we've adduced evidence of the policy of SITA which is attached to Mr Hurst's statement and I believe there's a policy of Toll in there but there was some conflicting evidence about whether Toll is actually using their DriveCam in New South Wales or not. But there is a policy there.
PN1724
THE COMMISSIONER: I think Mr Bowbyes' evidence on that point would be definitive, wouldn't it?
PN1725
MR WARNES: It may be but it's against everything that I've been told and from what we've heard, so ‑ ‑ ‑
PN1726
THE COMMISSIONER: Well, unless he's either lying or he's negligent as to the technology that his company has installed, I'd have to presume that it is in Toll vehicles in New South Wales.
PN1727
MR WARNES: And in the end I don't think it particularly matters, to be honest, Commissioner. I don't.
PN1728
THE COMMISSIONER: Now saying that, I have absolutely no thought that Mr Bowbyes lied in any way in his evidence.
PN1729
MR WARNES: Yes, that's fine. That's fine. So before the Commission we've got two policies which the TWU has agreed to, which it believes protects drivers' interests, both on the privacy front on the front where disciplinary action would be taken against drivers. Because, Commissioner, we need to understand that constant monitoring of employees would amplify the situations where the company can take disciplinary action against an employee exponentially. Or it has the potential to anyway, particularly as the camera records whenever there's a g‑force event.
PN1730
THE COMMISSIONER: Yes.
PN1731
MR WARNES: And a g‑force event can often be as a result of a mistake during driving, but it can also capture instances which have nothing to do with the driving of a truck. It could be to do with a breach of Linfox's own policy, say smoking in the cabin.
PN1732
THE COMMISSIONER: Yes.
PN1733
MR WARNES: Which is obviously something that Linfox - a policy that Linfox is entitled to have. A breach of say another one of their policies like a social media and communications policy or something along those lines.
PN1734
THE COMMISSIONER: I've been with Linfox about social media.
PN1735
MR WARNES: And that policy is a result of a certain decision of yours, Commissioner.
PN1736
THE COMMISSIONER: A decision of the Full Court of the Federal Court.
PN1737
MR WARNES: Yes, that's exactly right. Thank you, Commissioner. So what we're saying is it picks up the instances when an employee may be disciplined and it carries a lot further than what existed immediately prior to when the DriveCams existed.
PN1738
THE COMMISSIONER: Of course it does and you're saying that it gives the employer the capacity if they were ill‑intentioned to pick on a driver or drivers over otherwise small matters.
PN1739
MR WARNES: That's what we say, yes.
PN1740
THE COMMISSIONER: And that will come out in the wash. I just cannot make a determination that such a thing would occur.
PN1741
MR WARNES: No, of course not and we don't invite you to say that it would occur. We invite you to make a finding or a determination that something that would I suppose put a check and balance on whether that could occur would be appropriate to go in a policy to do with these DriveCams which, as I said before, impose a significantly new burden on employees.
PN1742
THE COMMISSIONER: Well, let's go to LINFOX2 and tell me how you think it could be improved.
PN1743
MR WARNES: LINFOX2?
PN1744
THE COMMISSIONER: Which is the DriveCam policy?
PN1745
MR WARNES: Okay.
PN1746
THE COMMISSIONER: Not the one in the folder which is the unamended one. The one I've marked is LINFOX2.
PN1747
MR WARNES: I've got Buckley's chance, Commissioner.
PN1748
THE COMMISSIONER: The one you say was lobbed on you.
PN1749
MR WARNES: Got it. Got it. Okay it might be easier to reference some evidence before the Commission to make this point.
PN1750
THE COMMISSIONER: If we go through it it's really the first underlined section.
PN1751
MR WARNES: "Unprofessional driving behaviour"?
PN1752
THE COMMISSIONER: Yes.
PN1753
MR WARNES: Yes.
PN1754
THE COMMISSIONER: And:
PN1755
The disciplinary action may include counselling, written warnings and / or termination of employment.
PN1756
It may and it may stand up or it may not stand up.
PN1757
MR WARNES: And as you can see that has been changed from "will" so I mean that's a change.
PN1758
THE COMMISSIONER: Yes.
PN1759
MR WARNES: If I can take you, Commissioner, to I think it's page 10 of Mr Hurst's statement.
PN1760
THE COMMISSIONER: Okay.
PN1761
MR WARNES: And this was subject to some debate between the parties yesterday.
PN1762
THE COMMISSIONER: Yes, which bit?
PN1763
MR WARNES: And I mean this is just an example of what we say is a decent policy rather than us saying that Linfox has to agree to what SITA has agreed to. Obviously that's a matter for industrial relations. Under the "Unprofessional driving behaviour and disciplinary matters" you'll see that SITA has limited disciplinary matters to - it's all one sentence. It's in the second line, they've limited it to where:
PN1764
The driver's actions may have contributed to the incident or where a law has been broken by the driver.
PN1765
THE COMMISSIONER: It also has to be a serious incident.
PN1766
MR WARNES: Yes, that's right, and then if you go to KH2 which is on page 13 of that same statement you'll see a letter from Linfox - no, not Linfox, sorry, SITA to the TWU and just the last paragraph with the dot points attached and the next paragraph over the page. That's in relation to what disciplinary action will be taken and events when it won't be taken.
PN1767
THE COMMISSIONER: So what happens if a person under the SITA policy is filmed smoking in the cabin of the vehicle?
PN1768
MR WARNES: So in the SITA policy they will not be - if it's caught on DriveCam then they won't be disciplined for it. So that's over the page. That's on page 14. Examples are:
PN1769
Eating or smoking, language or behaviour that's inappropriate unless part of a broader complaint, and drivers not following procedures and best practice regarding safe driving.
PN1770
So we've heard a bit of stuff about that, Linfox's version of that.
PN1771
THE COMMISSIONER: So under the SITA policy a driver can't be disciplined for not correctly using safety devices such as mirrors and reverse cameras when reversing?
PN1772
MR WARNES: Well, I think that's more to do with driver practices. So when a driver - and I think that's the pertinent point here is what DriveCam is designed to do is to improve driver behaviour.
PN1773
THE COMMISSIONER: Yes.
PN1774
MR WARNES: So just because they can't be disciplined doesn't mean that SITA can't go, "Look, you should have been using your mirrors and your reverse camera more carefully". SITA can still do that. They're just not allowed to say, "Here's a first written warning because you didn't do it".
PN1775
THE COMMISSIONER: Yes, I understand.
PN1776
MR WARNES: And the same with the smoking and eating. They can say, "Look, don't smoke" and it doesn't say it here but I think a common theme is that if - and it's throughout Linfox's evidence that if something is repeated, so you're caught smoking seven times or, even less, four times, then it becomes a matter for discipline rather than on the first instance of someone being caught which, as you said before, could be - if misused, footage could be trawled through to find that for a particular individual. And we're not saying that that's - we're not inviting you to make that determination that that will happen. But we think it's undesirable that that sort of thing could happen under a policy on a piece of technology of this nature.
PN1777
THE COMMISSIONER: You see, this is inviting me to rewrite a policy, isn't it?
PN1778
MR WARNES: No. No, and we should be careful to stay clear of that.
PN1779
THE COMMISSIONER: I will be. I will be.
PN1780
MR WARNES: This is inviting you to make a similar finding to what Commissioner Gregory found in that there's nothing particularly that ‑ ‑ ‑
PN1781
THE COMMISSIONER: Commissioner Gregory's finding or determination was that it all was hunky dory provided there was training - and I think there's no problem here, there's been training and information provided - and that guidelines were established. I just want to go and read exactly what he said. You see, all it says, and I'll read it:
PN1782
I am also satisfied that any proposal to install the camera and audio system in any of Toll's vehicles should only occur after employees have been provided with structured training about the operation of the system and the guidelines that apply to its use before they are required or expected to drive a vehicle that has the system in place.
PN1783
He doesn't seek to interpose himself into the guidelines or the drafting of same, and he doesn't seem to even provide for consultation with the union or the drivers about the guidelines. So to the extent of the Gregory decision, the company has produced the guidelines and done the training. But I'm sympathetic to ‑ ‑ ‑
PN1784
MR WARNES: Well, there's no evidence of that and we'd deny that.
PN1785
THE COMMISSIONER: Look, I am sympathetic to there being a proper policy but helping the parties develop an agreed policy pretty well stands outside these proceedings.
PN1786
MR WARNES: I agree. I do agree with that, but you do have the power to find that their current policy is deficient, and that's what we're inviting you to do.
PN1787
THE COMMISSIONER: You say it's deficient I think because the unprofessional driver behaviour picks up types of behaviour which the other policy, being the SITA policy, doesn't call for necessary sanction about.
PN1788
MR WARNES: Yes.
PN1789
THE COMMISSIONER: Is that it?
PN1790
MR WARNES: Yes.
PN1791
THE COMMISSIONER: Don't ask me to repeat it. I'll have probably forgotten it by then.
PN1792
MR WARNES: No, no, your Honour. I mean, the fact of the matter is that I don't believe - and I'm not sure why it has come to this point, Commissioner, where we're before you for two days and we're having to do this - because ‑ ‑ ‑
PN1793
THE COMMISSIONER: I've had the same thought too.
PN1794
MR WARNES: Because - and this came up yesterday and my friend will say in DJ3 in Mr Jones' statement.
PN1795
THE COMMISSIONER: Yes, remind me what it is.
PN1796
MR WARNES: It's a letter to Michael Aird, who is now the state secretary of the TWU, from Laurie D'apice who is the president of HR in Linfox, and this is regarding the use of DriveCam. He stated on page 94 of Mr Jones' statement, about midway down the page, that:
PN1797
DriveCam is not being installed to terminate drivers but if an accident happens that triggers a recorded event and a driver is shown to be guilty of a wilful breach of road laws which are supported by our Linfox policies they will be subject to disciplinary action which may include termination.
PN1798
THE COMMISSIONER: Yes, well smoking in the cabin is not a road law.
PN1799
MR WARNES: Yes, exactly right and the fact is, on my submission, that smoking in the cabin, unless it has got something to do with driver behaviour and improving driver behaviour, it really is no business of DriveCam. DriveCam, if it's used for smoking in the cabin, is really just a way that the employer can pick up on things that an employee is doing wrong and that's not the purpose of DriveCam. On all of the evidence it's not the purpose of DriveCam and that's the point, is that what we're saying is by picking up on the sorts of things that the policy allows Linfox to pick up on, it defeats the purpose or it's outside of the scope of the purpose of DriveCam.
PN1800
THE COMMISSIONER: Well, not really. I mean the smoking, if the company turned up and said "The reason we want to know about smoking in the cabin is because it means the driver's not paying proper attention to the road and / or the driver might drop the cigarette in his lap and thereby cause an accident", I mean they could certainly get around that.
PN1801
MR WARNES: That falls squarely within it, but if the driver's pulled over on a rest break and for some reason the DriveCam triggers and they're smoking, that's completely outside the scope.
PN1802
THE COMMISSIONER: Yes, he's not smart enough to get out of the truck to have his cigarette.
PN1803
MR WARNES: Well, it could be freezing cold, Commissioner. It could be boiling hot.
PN1804
THE COMMISSIONER: I mean, I smoke, right? And when I drive rental cars in country areas where I regularly go, I mean you're just not allowed to smoke in the car and that's it, you don't do it. Mainly because they charge you about $220 if you do. You get out of the car and do it. I mean, a lot of this is just commonsense. If there s a company policy you re not allowed to smoke in the truck, well, you stop the truck and have your gasper.
PN1805
MR WARNES: Well, Commissioner, unfortunately, our case is our case, and I can see where you re going with all these points.
PN1806
THE COMMISSIONER: I have been clearly telegraphing things.
PN1807
MR WARNES: I can see where you re going with it. We do say that the way that DriveCam operates is a huge change to what these drivers are used to. You say that it does invade their privacy, and it does. I really don t think there s any point denying that. Even if it doesn t ‑ ‑ ‑
PN1808
THE COMMISSIONER: Both are true?
PN1809
MR WARNES: Even if it doesn t breach surveillance legislation, the workplace surveillance legislation or the listing devices legislation.
PN1810
THE COMMISSIONER: We re agreed, you wouldn t like it, I wouldn t like it.
PN1811
MR WARNES: Yes.
PN1812
THE COMMISSIONER: But is it lawful?
PN1813
MR WARNES: Is it lawful to have a deficient policy in place? And we say that the policy is deficient. We say that the policy allows it doesn t fetter ‑ ‑ ‑
PN1814
THE COMMISSIONER: You say the policy is too harsh?
PN1815
MR WARNES: No, the policy is just incomplete. The policy doesn t give drivers any redress if the footage is somehow distributed. It doesn t have any and I would take you to it but the toll policy has an example where if a manager is found to be showing someone else the footage, they will be disciplined and most likely terminated. Points like that, which aren t addressed in the Linfox policy, don t provide adequate protections to this invasion of the driver s privacy.
PN1816
THE COMMISSIONER: The protections for the driver against the policy being misused, is the 400 pound gorilla that is the TWU. Right. And the lesser gorilla which is the Fair Work Commission. Isn t that what happens?
PN1817
MR WARNES: Well, it is but ‑ ‑ ‑
PN1818
THE COMMISSIONER: Isn t that what we both do on a daily basis?
PN1819
MR WARNES: It would be nice to prevent that from happening before it got to yourself and I, Commissioner.
PN1820
THE COMMISSIONER: Well, I d like that too but we d both be out of a job so we shouldn t hope for it.
PN1821
MR WARNES: Well, Commissioner, we do invite you to inspect the policies that we ve put before you, in the form of Toll and SITA.
PN1822
THE COMMISSIONER: I have inspected the policies. The point is whether I think a policy is better than another policy, or I should pick this bit out of this one, and this bit out of that one. In the end I ll be drafting a policy.
PN1823
MR WARNES: No. It s whether you feel that the policy that Linfox has put forward is adequate to protect the lawful, legitimate interests of the drivers when they re performing their work.
PN1824
THE COMMISSIONER: Well ‑ ‑ ‑
PN1825
MR WARNES: If you feel that that s the case, then the determination that you re going to make is going to logically be in Linfox s favour. But if you feel that there is more required to make it not unjust for employees to work under that particular system, then your determination has to be that in its current form it cannot go ahead until a proper policy is created.
PN1826
I m not saying that you can direct Linfox to agree with the TWU, because you can t, but you can direct Linfox to consult with the TWU. You don t even have to direct it. The enterprise agreement mandates it, to consult with the TWU to make a policy to ensure that what Linfox is seeking with the use of the DriveCam, is not unjust and unreasonable.
PN1827
THE COMMISSIONER: I don t think that would be an unreasonable outcome. I m sympathetic to that.
PN1828
MR WARNES: Commissioner, I understand, and I m conscious that I ve used a lot more time than I thought I was going to use.
PN1829
THE COMMISSIONER: Most of it was because I kept interrupting you, Mr Warnes.
PN1830
MR WARNES: That s all right. Look, I thank you for taking the time to hear our submissions and I ll let my friend stand up now.
PN1831
THE COMMISSIONER: I might say, your efforts have been both heroic and exemplary in terms of trying to convince me of this. Mr Shariff, I don t think I need to hear you on this matter.
PN1832
MR SHARIFF: No, I didn t think you would.
PN1833
THE COMMISSIONER: Are you determined to ‑ ‑ ‑
PN1834
MR SHARIFF: I need to address that last set of points that were made, and I ll be as brief as possible.
PN1835
THE COMMISSIONER: Be very brief, Mr Shariff.
PN1836
MR SHARIFF: I will. I will try. But I will ‑ ‑ ‑
PN1837
THE COMMISSIONER: It s hard for a barrister.
PN1838
MR SHARIFF: It is very hard for a barrister. But can I I will need to take you, Commissioner, to some documents because that last point that has been made by my friend that the Linfox policy is something that you, Commissioner, should either rewrite and we say you shouldn t, and I think ‑ ‑ ‑
PN1839
THE COMMISSIONER: And I ve said I shouldn t, so we re ad idem about that.
PN1840
MR SHARIFF: We re agreed on that.
PN1841
THE COMMISSIONER: He says I shouldn t.
PN1842
MR SHARIFF: The second aspect of it is that my friend tells you, Commissioner, that the Linfox policy is unjust or unreasonable. Let s just unpack that. This is the same policy that Linfox has applied in Queensland, WA, South Australia and Victoria.
PN1843
THE COMMISSIONER: In the amended form?
PN1844
MR SHARIFF: Not in the amended form.
PN1845
THE COMMISSIONER: What do you intend to do in the other States about the now-amended document?
PN1846
MR SHARIFF: Well, what I anticipate will happen is that the amendments will flow through to the other States as well.
PN1847
THE COMMISSIONER: Yes, I d need to know about that.
PN1848
MR SHARIFF: Well, I can get instructions about that straight away, and I m told that is what will happen.
PN1849
THE COMMISSIONER: Okay.
PN1850
MR SHARIFF: So the position that my friend is telling you, Commissioner, is that the policy is just for those in Queensland, just for those in WA, South Australia and Victoria, but not for those in New South Wales. And you won t accept that.
PN1851
The other aspect of this is my friend now at the heel of the hunt, after troubling us all over the course of a day and a half about issues that in the end were capable of easy resolution, as they have been, says that there should be further consultation. We reject that. We reject that outright.
PN1852
Can I take you, Commissioner, to DJ3 which is a document that you were taken to. A letter from Mr D apice to Mr Aird. That was sent on 10 February 2014. What my friend didn t take you to, Commissioner, was not just the passage that Mr D apice in which Mr D apice said the words that have been drawn to your attention. Mr D apice also said this:
PN1853
In line with our undertaking and arising from the numerous consultation meetings, we have developed a guideline policy document which is provided as an attachment to the letter.
PN1854
That guideline document, other than the amendments which I have drawn to your attention, Commissioner, on the first day of the hearing, was largely in the same form as it is now. That was sent to the union, the highest level of the union, in February of 2014. DJ14 contains a letter that came back from the branch secretary of the South Australian branch, that s Mr Wyatt at the time. Two issues were raised. That was a letter dated 19 March 2014.
PN1855
The first issue that was raised was that the words termination of employment shouldn t appear in the policy because that would be Commissioner, you can look at it. That s at page 100.
PN1856
THE COMMISSIONER: I ll just read it.
PN1857
MR SHARIFF: Yes.
PN1858
THE COMMISSIONER: Yes.
PN1859
MR SHARIFF: Can you see that there s a proposed amendment to 5.3 saying:
PN1860
Delete the words termination of employment . The words disciplinary action are sufficient.
PN1861
Then 5.3.3:
PN1862
A driver should not have to put in writing that he requires representation.
PN1863
Then an issue was raised at the foot of the page about sleeper cabins. That was all that was received.
PN1864
THE COMMISSIONER: I don t know what what does full written consent mean?
PN1865
MR SHARIFF: I m sorry?
PN1866
THE COMMISSIONER: What does full written consent mean?
PN1867
MR SHARIFF: I m not sure.
PN1868
THE COMMISSIONER: Instead of as opposed to written consent.
PN1869
MR SHARIFF: Different to partial.
PN1870
THE COMMISSIONER: Can somebody give written consent without giving full written consent?
PN1871
MR SHARIFF: You d have to ask Mr Forneaux.
PN1872
THE COMMISSIONER: Yes.
PN1873
MR SHARIFF: Now ‑ ‑ ‑
PN1874
THE COMMISSIONER: This seems like the sort of point the High Court ends up with.
PN1875
MR SHARIFF: Probably, in criminal matters mostly, I think, when consent is an issue. But you then go to DJ5. Mr Jones then writes to Mr Forneaux on 15 April saying:
PN1876
We ve received now feedback.
PN1877
The only feedback in writing had come from the South Australian branch.
PN1878
Please be advised that we ve considered the feedback and where appropriate have incorporated changes into the policy and will now implement this policy.
PN1879
This was in April of 2014. We then get Commissioner, if you go to DJ6. That s an email from Mr D apice to all employees announcing the implementation of the policy. That was in May 2014, and the policy is attached. You then go to DJ7. There s an email from Mr Hurst of 16 October 2014 which raises I think 11 points I counted. Mr Jones then responds to that email, which I think I took Mr Hurst to in his cross-examination, at DJ8. That s an email of 23 October 2014. Relevantly, does your Honour sorry do you have that, Commissioner?
PN1880
THE COMMISSIONER: No. I m listening to you.
PN1881
MR SHARIFF: Yes. At the first point, Mr Jones records what the TWU position is.
PN1882
The TWU and the delegates wants the DriveCam policy to be about training and education, not disciplinary measures.
PN1883
Mr Jones responds:
PN1884
The DriveCam policy is about driver training and education. Sections
PN1885
et cetera
PN1886
unambiguously stress that to be the foundation and intent of the policy. Section 5.3 deals with unprofessional driver behaviour and potential ramifications of such behaviour. Section 5.3
PN1887
and I emphasise this
PN1888
is read in conjunction with clause 71 counselling and discipline of the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2014.
PN1889
There is an absolute commitment from Linfox that any disciplinary action that we take, would be taken in accordance with the underlying EBA. Now, what more protection can the TWU ask for, or their members, than that the company would adhere to the bargain that they ve struck, and the bargain that reflects the protections that the TWU had themselves brought to the table in the enterprise bargain.
PN1890
THE COMMISSIONER: But you re not going to tell me, are you - that you appear to be saying no, no, a thousand times no, we won t have further consultation about the DriveCam policy. If I was to request that that further consultation occur, are you going to refuse me?
PN1891
MR SHARIFF: I am saying ‑ ‑ ‑
PN1892
THE COMMISSIONER: You might like to seek instructions about that.
PN1893
MR SHARIFF: All right.
PN1894
THE COMMISSIONER: I don t mind breaking if that s convenient.
PN1895
MR SHARIFF: I don t think I ll need that long. Yes, I m being told, Commissioner, that, one, on the current questions before the Commission, that s not the issue that is, whether there should be further consultation. My instructions are that Linfox has now consulted over a period of 18 months about this and is not prepared to consult any further about it.
PN1896
THE COMMISSIONER: So it s no, no, a thousand and one times no.
PN1897
MR SHARIFF: It is no. The protection that s there for drivers, you ve adverted to it. If someone is disciplined in circumstances that are unmeritorious, the employee, the delegate structure, the union, have a facility available to raise a dispute or raise agreements. If there s a termination of employment, the employees have the added benefit of being able to bring unfair dismissal proceedings.
PN1898
THE COMMISSIONER: Well, in the middle of that there s section 739 of the Act.
PN1899
MR SHARIFF: Quite. My friend cross-examined three witnesses yesterday about the various incidents where footage had been recorded. He examined two of the witnesses: Mr Hensworth and Mr Clulow about actual potential discipline that had occurred. He also cross-examined Mr Jones about that, if you can recall, Commissioner. In none of those matters was it ever put to the witnesses that those instances where warnings were issued were without foundation.
PN1900
Ultimately, the proof is in the eating of the pudding because the policy has been operational in Queensland, Western Australia, South Australia and Victoria. In all the evidence before the Commission there is no evidence that a single one of the disciplinary matters that has been raised ended in an unfair dismissal claim.
PN1901
The one where the union got involved and got remotely close to there being a dispute resolution was the one in South Australia involving Mr Smith, the employee being a Mr Bradshaw. Of course Mr Smith ran from that. Once it became known that the real cause of the termination was a history of prior warnings, and a falsification of a business record ‑ ‑ ‑
PN1902
THE COMMISSIONER: I remember the Bradshaw case from the files here.
PN1903
MR SHARIFF: So not a single one of those matters does Mr Warnes say were without foundation. If there s any fear in relation to this matter it s fear that s not coming rationally from our side of the record.
PN1904
THE COMMISSIONER: No, it s coming rationally from the other side of the record.
PN1905
MR SHARIFF: When there s been a consultation period over 18 months, that s the very reason we re here. It s been exhausted. We say what the appropriate order should be is that the TWU s application should be dismissed, and an order be made that Linfox is not prohibited from implementing the DriveCam technology.
PN1906
THE COMMISSIONER: Well, number one, I can t make orders under this section of the Act.
PN1907
MR SHARIFF: Yes.
PN1908
THE COMMISSIONER: Number two, the second determination that s sought would be redundant if the first point was granted.
PN1909
MR SHARIFF: Quite.
PN1910
THE COMMISSIONER: If I dismissed the application then I m not going to make any further determination that you re whiter than snow.
PN1911
MR SHARIFF: Well, the alternative, Commissioner, is that you make a determination on in answer to question 1, that Linfox is not the answer to question 1 is that Linfox is not prohibited from implementing the DriveCam technology in accordance with the policy that s proposed. Now, in the correct in the Toll case in Victoria, can I just point this out we ve been to paragraph 86, if you still have the decision, Commissioner.
PN1912
THE COMMISSIONER: I do. I do.
PN1913
MR SHARIFF: Can I take you to paragraph 10.
PN1914
THE COMMISSIONER: Yes.
PN1915
MR SHARIFF: Can you pick up from the second sentence. It says:
PN1916
Toll points out the guidelines on use of vehicle camera footage it has developed and introduced, which are intended to ensure employees rights are protected. In its view, this system provides a number of benefits
PN1917
et cetera. So what the Commissioner had before him was in fact an already developed guideline. The conclusion in 86, and this is the force of what I was trying to say yesterday, all that 86 paragraph 86 was saying, is that drivers should not be driving vehicles until after they ve been provided the requisite training and been provided with the guidelines that are to apply. That s what should happen here.
PN1918
What should happen is that the drivers should be sorry Linfox will provide a copy of the DriveCam policy to the drivers, as it has already done. But what Mr Warnes is effectively asking for is for the parties to further consult about a matter which they ve exhausted. That will only bring us back here. It will only bring us back here.
PN1919
THE COMMISSIONER: I take your point.
PN1920
MR SHARIFF: As I say, there are the protections that the employees have already elsewhere. Now, there was a lot more I could say ‑ ‑ ‑
PN1921
THE COMMISSIONER: But you re not going to.
PN1922
MR SHARIFF: But I m not going to because I I thank my friend for the concessions that have been made and in light of those concessions there is no issue about non-compliance with the relevant surveillance device legislation in New South Wales, the Telecommunications Intercept Act, et cetera. My client ‑ ‑ ‑
PN1923
THE COMMISSIONER: Well, if there is, the union can take the appropriate action under that legislation.
PN1924
MR SHARIFF: If there is.
PN1925
THE COMMISSIONER: If there is.
PN1926
MR SHARIFF: If there is, but my friend has made a concession that based upon the policy as we ve presented it, there won t be.
PN1927
THE COMMISSIONER: Right.
PN1928
MR SHARIFF: Yes, Commissioner, unless there s anything further I can assist you with, that s all I wanted to say.
PN1929
THE COMMISSIONER: I think you can intuit there isn t.
PN1930
MR SHARIFF: Thank you.
PN1931
THE COMMISSIONER: So you re finished?
PN1932
MR SHARIFF: I m finished.
PN1933
THE COMMISSIONER: Good. I just want a few minutes to think about this. How about the parties come back at 1 o clock.
PN1934
MR SHARIFF: Thank you, Commissioner.
SHORT ADJOURNMENT [12.34 PM]
RESUMED [1.06 PM]
PN1935
THE COMMISSIONER: This is an application by the TWU pursuant to section 739 of the Act, which puts two questions to the Commission. The first is whether there is anything in the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2014 or anything else, that acts to prevent Linfox Proprietary Limited, the respondent, from operating the DriveCam technology in its vehicles.
PN1936
The second question put for determination is whether the respondent may rely upon the DriveCam technology for the purposes of disciplinary action.
PN1937
My answer to the first question put for determination is resoundingly no, and I think it s conceded by the TWU that there is nothing which would act to prohibit the installation of the technology, which I note is installed in Linfox and other company vehicles in a number of Australian States prior to this case being brought.
PN1938
The second question put in relation to disciplinary action is one that Linfox will rely apparently in some form on the policy relating to DriveCam, which is in exhibit as exhibit LINFOX2. As I ve noted several times during proceedings, the existence of a policy is one thing. Whether the policy has an outcome which is acceptable or lawful, will ultimately in the case of it being contested lie with the Commission, which would have some regard to the policy but otherwise would have regard to the usual principles, either under section 739 of the Act, or section 394, or possibly section 365 in terms of conciliation.
PN1939
These things being said, the first question put, I dismiss the application. The second question, I dismiss subject to the comments that I have made. I am satisfied in these proceedings that the evidence of all witnesses has been truthful as to their personal knowledge and belief. I particularly rely in making my decision on the evidence of Mr Bowbyes, and to some lesser extent, Mr Hensworth, Mr Jones, Mr Nemtsas, and Mr Clulow.
PN1940
I might say, as I ve also said before, that I have some sympathy for the position of drivers now faced with a camera watching their every move, and I can understand that it would be disconcerting, but I find nothing in Linfox s actions which would contravene the relevant State or Federal legislation relating to such matters, particularly in the light of the policy set out by the respondent employer at section 5.4, which states in summary that drivers must inform sorry, I might have the wrong section.
PN1941
Section 5.4.3, that drivers must inform any other party involved in the conversation with them, if that party is not a member of Linfox management or a fellow employee, that the conversation may be recorded. That, in my view, satisfies the two types of legislation the Federal and State legislation relating to these matters.
PN1942
All in all, the installation of the equipment is quite proper. I m satisfied that the DriveCam policy, as amended and served filed with the Commission and served on the TWU only yesterday, does meet all legitimate concerns. I note that that policy will now also apply outside New South Wales in other States where Linfox has incorporated DriveCam into its trucks.
PN1943
I might say, in that sense, there has been utility in the TWU bringing this case, and I also have sympathy for Mr Warnes statement that if they d had this amended policy a little earlier perhaps we wouldn t have been here for a day and a half traversing all of these matters. But in any event, the application the two questions for determination is dismissed. I do encourage the parties to have further talks about the DriveCam policy should any problems in its application come to light. Do the parties wish to ask me any questions or anything I ve missed? No? Okay. I m adjourned.
PN1944
MR SHARIFF: Thank you, Commissioner.
ADJOURNED INDEFINITELY [1.12 PM]
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