C2017/1983, Transcript of Proceedings [2018] FWCTrans 104 (29 March 2018)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                       1055766

DEPUTY PRESIDENT CLANCY

C2017/1983

s.739 - Application to deal with a dispute

Toll Transport Pty Ltd T/A Toll Shipping

 and

Transport Workers' Union of Australia

(C2017/1983)

Toll Group - TWU Enterprise Agreement 2013-2017

Sydney

2.08 PM, TUESDAY, 20 MARCH 2018

Continued from 13/10/2017

PN2061

THE DEPUTY PRESIDENT: Good afternoon, Mr Denton.

PN2062

MR DENTON: Good afternoon. I appear on behalf of the applicant still in this matter.

PN2063

THE DEPUTY PRESIDENT: Thank you. Good afternoon, Mr Gibian.

PN2064

MR GIBIAN: Yes, may it please, I appear for the respondent.

PN2065

THE DEPUTY PRESIDENT: Thank you. I'll hear Mr Denton first, unless there's any preliminary matters, and ‑ ‑ ‑

PN2066

MR DENTON: Not in itself. I'll just touch on the general machinery of this case since we last met.

PN2067

THE DEPUTY PRESIDENT: Yes.

PN2068

MR DENTON: The parties appearing in the Commission following the filing of a new F10 application that was filed on 19 February 2018, this application is now filed pursuant to clause 15 of the 2017 enterprise agreement between these two parties and in accordance with subsection (c) of that clause this matter was conciliated unsuccessfully by the Commission on 13 March 2018 and now comes before the Commission today for the chance for the parties to formally be heard pursuant to clause 15(d) subsection (iii) before the determination is made.

PN2069

Consistent with the correspondence from both parties on 19 February 2018 it is agreed that the "material" that the Commission is to have regard pursuant to clause 15(d)(iv), the witness statements, transcript and submissions of the identical dispute that was filed under the 2013 agreement.

PN2070

THE DEPUTY PRESIDENT: Yes.

PN2071

MR DENTON: And these were tendered and heard last October. The dispute, as defined in the new F10, if I can call it that, is in identical terms to what's been referred to throughout the material previously as the agreed question. And that agreed question or the dispute, as it's now defined, is of course whether Toll has the right to further implement the DVR and Guardian technologies in its enterprise, taking into account, those express concerns of the members.

PN2072

The final piece of machinery, sir, is that where reference has been made throughout by the parties in submissions prior to this date to clause 35, that's clause 35 of the 2013 agreement. That should now be read on all occasions as being clause 40, which is the identical term found in the 2017 agreement.

PN2073

THE DEPUTY PRESIDENT: Thank you.

PN2074

MR DENTON: Turning to Toll's closing position in regards to this dispute, sir ‑ ‑ ‑

PN2075

THE DEPUTY PRESIDENT: Yes.

PN2076

MR DENTON: ‑ ‑ ‑ it's common ground between the parties that Toll should be doing whatever it can to ensure that its business is being conducted in the safest manner possible. Obviously we're dealing with a dispute as to whether Toll has the right to further technologies, either expressly through the agreement, or whether it has a managerial prerogative.

PN2077

The test as defined by Lawler DP in the case of CFMEU v HWE Mining as referenced in Toll's closing submissions, at paragraph 12 it said:

PN2078

that an exercise of managerial prerogative will not be unreasonable if a reasonable person in the position of the employer, could have made the decision in question.

PN2079

So in answering the agreed question or determining this dispute the Commission is required to view the dispute from the position of the employer. In that regard it's noted that the objects of the 2017 agreement lists as the very first item as being that the objects of this agreement include enhancing the safety and fairness of Toll's operations.

PN2080

In its policies it is expressed that safety is at the heart of everything that it does, and Toll adopts a group wide strategy of think safe, act safe, be safe, and at clause 16 of the 2017 agreement it's expressed that Toll's core values expressly include safety.

PN2081

So that's the position of Toll generally. In regards to the road transport industry in which this dispute is concerned, that industry itself accounts for a disproportionately high number of work related fatalities. The evidence before the Commission shows that 17 per cent of all worker deaths between 2003 to 2015 were road transport workers despite them making up just two per cent of the Australian workforce.

PN2082

So although it was put in the TWU's written submissions that incidents in Toll Liquids are to be seen as very rare, Toll Liquids itself was involved in 90 to 100 motor vehicle accidents per year and this included three third party fatalities between May 2016 to October 2017.

PN2083

So, Deputy President, in that regard, the position of the employer in this dispute is what it's seeking to do is to further implement technologies that it has identified as being capable of saving lives, as being capable of ensuring that its enterprise is carried out in the safest manner that it can.

PN2084

Turning to the submissions, the parties filed detailed submissions last October/November following the close of evidence. Given the detail contained in those submissions I won't regurgitate all of it.

PN2085

THE DEPUTY PRESIDENT: Yes.

PN2086

MR DENTON: However, there has been some time that's been passed, so I think it's probably best if I traverse over some of the more salient matters.

PN2087

Just by way of a refresher of what these technologies are, sir, the DVR technology provides for more extensive camera footage than the drive cam technology, which is currently being utilised in parts of Toll, and it's said that this has capacity to exonerate drivers involved in accidents or incidents and decreases investigation times and associated costs following an accident or an incident. The evidence shows that the DVR also provides a useful tool for training and coaching of drivers that can result in the prevention of accidents in the future.

PN2088

The Guardian technology has the capacity to prevent accidents and prevent related injuries by alerting drivers when potential fatigue events are occurring. Research into the Guardian technology has found that this technology can lead to a 95 per cent reduction in safety incidents, and this is arising through direct feedback and in-cab alerts.

PN2089

Both these technologies are widely used both throughout the Toll enterprise and have been for a number of years. The Guardian technology itself is used extensively in a number of industries throughout the world, but there is no evidence before the Commission to suggest that any use of these technologies has caused any adverse effects anywhere.

PN2090

Toll's position is that it has the express power to further implement these two technologies through clause 40 of 2017 agreement, and in the alternative it has the managerial prerogative to further implement these technologies, and that concerns expressed by the TWU members are largely speculative, have no evidentiary basis, and cannot be seen as being sufficient to strip Toll of its right to further implement these important safety technologies.

PN2091

I'll deal briefly with each of the concerns in the identified dispute.

PN2092

THE DEPUTY PRESIDENT: Yes.

PN2093

MR DENTON: And as is known they've been categorised both into the DVR and into the Guardian. So the first concern relates to the DVR, and it says that:

PN2094

The digital video recorder is unreasonably intrusive, including but not limited to recording non-driving duties.

PN2095

It was apparent from the TWU's evidence that this concern is focused on a – it was limited to a discrete circumstance, for example, meal times being filmed whilst they're in the cab of the truck, and this only occurs sporadically and it's something that can be easily overcome, if it's indeed occurring, by the driver simply moving to the passenger seat.

PN2096

The height of the evidence is that to do so would be "to be a pain in the butt", and so no one would do it. So the imposition of having somebody move to a passenger seat is not plainly unjust or unreasonable, particularly when viewed from the position of the employer and the important end that Toll is seeking to achieve for these technologies.

PN2097

The second concern regarding DVR is that it's said that it has the capacity for footage of data that has been captured by the DVR to be used for a purpose other than to ensure safe driving. The evidence to support this concern relates to an alleged lack of safeguards that are in place to ensure that footage recorded by the DVR is not misused by Toll or more likely more specifically by Toll management. But this concern appears to have no regard to the standing operating procedure that Toll Liquids already has in place regarding this technology, which is known as SOP 1, which is found at the exhibit number 5 of the Sean Hepburn statement. The scope of that procedure states that it is to apply to all the vehicles in Toll Liquids that has camera safety systems installed in or on them, which includes the DVR and the Guardian.

PN2098

This standard operating procedure expressly outlines three types of occasions when footage is allowed to be collected by Toll, and if one of those three situations have been satisfied, that identifies exactly what the footage can actually be used for. The contents of that procedure demonstrates that Toll has in place these comprehensive safeguards that completely address each of the TWU members' expressed concerns. Indeed under cross-examination both Mr Gibbs and Mr Clifford not only agreed that the procedure itself dealt with the exact concerns that they raised, but they also both conceded that the manner in which the footage was to be used was to ensure safe driving, which is at the heart of what this concern is.

PN2099

The true nature of the concerns was apparent throughout the concessions under cross-examination that, yes, these safeguards are in place but they simply do not trust that Toll is going to comply with them, and this was maintained in the face of the procedures themselves providing for termination if any Toll employee is found to have been misusing data or footage contained from these technologies.

PN2100

THE DEPUTY PRESIDENT: So to play that through, what do you say is the situation if there was a question about whether the footage had been misused or improperly accessed, and the footage was the subject of some sort of, say, a disciplinary process between management and an employee, what would flow from the misuse of the footage or improperly obtaining it?

PN2101

MR DENTON: If there's an allegation it was being misused ‑ ‑ ‑

PN2102

THE DEPUTY PRESIDENT: Yes.

PN2103

MR DENTON: ‑ ‑ ‑ then the driver subject to that misuse, if I could put it that way, has the potential to bring this dispute.

PN2104

THE DEPUTY PRESIDENT: Yes.

PN2105

MR DENTON: Either under the agreement or particularly through the procedure, so the standard operating procedure itself says if a person is found to have misused video footage they shall be subject to disciplinary action up to and including termination of their employment.

PN2106

THE DEPUTY PRESIDENT: Yes.

PN2107

MR DENTON: So there's clear recourse within this procedure, and it's not just this one, it's in SOP2 and 3 as well, and I did put, at least to I think Mr Gibbs, or perhaps with Mr Clifford, that they were aware that they had avenues of bringing a dispute resolution procedure if they suspect a breach of the policies, and he did concede that he was aware of it, but again it just went back to the fact I just don't think they're going to follow it.

PN2108

THE DEPUTY PRESIDENT: All right. So you say there are checks and balances?

PN2109

MR DENTON: Yes. And that the important thing is that not only are there checks and balances, but they're there to allow for a dispute of this sort or of a concern of this kind, number 2 and number 7 as well, to be brought at the appropriate time through the appropriate channel, but this dispute about whether Toll has the right to further implement is not the proper vehicle for that sort of challenge.

PN2110

THE DEPUTY PRESIDENT: Yes.

PN2111

MR DENTON: The concerns regarding the Guardian, the first four of those five really relate to whether the continuous exposure to the Guardian is safe, and then the fifth and final is in identical terms to the one we've just been discussing about whether the capacity for data captures has the potential to be used for purposes other than safe driving.

PN2112

So in regards to that final concern, sir, the submissions I've just made in regards to SOP 1 can be made in regards to that concern, except that again on top of that when we're dealing with the Guardian technology there's also SOP 2 and SOP 3, and these procedures outline in detail how multiple fatigue events are to be dealt with; fatigue event 1, 2 and then 3. And also as well how false alarms are to be managed, so if a driver is convinced that it was a false alarm that's going on, he need not stop and report it for example. That's through SOP 3. It's important to note the existence of those procedures and from what they cover, because those issues were expressly raised through the TWU members' statements as well. Again, not really having regard to the contents of these procedures, and again the same allegation was, look, the contents of the procedures are there. To paraphrase one of the witnesses, I think he said, "Yes, look, on paper it all looks good, but they're just not going to follow it". As I said, this isn't the appropriate vehicle to be challenging that sort of a position. That's to be dealt with at the appropriate time.

PN2113

Turning to the safety concerns for the Guardian technology ‑ ‑ ‑

PN2114

THE DEPUTY PRESIDENT: Yes.

PN2115

MR DENTON: ‑ ‑ ‑ and in general what the expert evidence before this Commission is, that includes a report of Dr Dain in which he says as to the potential problems to health that could be caused by the Guardian, he says:

PN2116

I know of no reason to be concerned even at the most remote level about any effects, adverse or advantageous, from the levels of infrared from the Guardian.

PN2117

He went on to say that he has no concerns whatsoever regarding its safety. There were two reports of Dr Sliney, one in 2013 and one in 2015, about the Guardian technology. The second report deals with the current technology that's the subject of this arbitration, but in both of those reports he said that the LEDs are radiant limited and cannot produce exposure levels at the retina that even approach the levels that are known to cause retinal thermal injury. He says:

PN2118

In other words the infrared LEDs would have to emit a far more power to propose a serious acute hazard to the retina and this is theoretically impossible for current LEDs.

PN2119

And he went on to say that the use of technology at a distance of 80 centimetres, around what you'd expect in a truck cab, exceeded the required safety requirements of 250 fold.

PN2120

Dr Sliney also provided a written response to the drivers' representative committee, the DRC, which is made up of largely the very TWU members that were witnesses to this dispute, and the concerns put to him are in effect of the same substance of exactly what we're dealing with in this dispute, sir.

PN2121

In this response to the DRC he says:

PN2122

In conclusion I am very sorry that the DRV was misled by erroneous information on the internet and the DRV may not have had access to health and safety experts. In any case, it would be a tragedy if drivers rejected a perfectly safe system designed to improved their safety and reduce accidents and potential injuries based upon misrepresentation.

PN2123

As to the evidence of Dr Dain it was never put to him, nor has it been suggested in the union's submissions, that any of the information that was provided to him was incorrect. Further, the TWU at paragraph 43 of its submissions accept that Dr Dain is a respected expert in the areas in which he works, and at paragraph 46 of the union's submissions, it concedes that none of the materials submitted by the TWU in itself proves that the Guardian system will harm the eyesight of drivers.

PN2124

THE DEPUTY PRESIDENT: Isn't there criticism made that Dr Dain didn't have access to the complete signing of reports?

PN2125

MR DENTON: Yes. There were some criticisms about what he was provided or the fact that he himself didn't conduct the testing and he may not be sure exactly who conducted the testing, but there was never any criticism made about whether or not it was accurate. It just said that there may be some queries about – as to where it came from although it was never put any higher than that.

PN2126

THE DEPUTY PRESIDENT: That goes to the testing data, does it?

PN2127

MR DENTON: I believe that was the source of the Sliney reports, I think is what the cross-examination was.

PN2128

THE DEPUTY PRESIDENT: Yes.

PN2129

MR DENTON: But he couldn't be sure who had conducted it or where and when.

PN2130

THE DEPUTY PRESIDENT: But I'm looking at 44(c) of the submissions of the respondent. It says:

PN2131

The reports of Dr Sliney are incomplete and the basis of the opinion is not entirely clear. The report dated 10 November 2013 is a supplementary report to an earlier report which was not in evidence and has not appeared to have been obtained by Toll and not provided to Dr Dain.

PN2132

What significance should I attach to that?

PN2133

MR DENTON: I believe that this is directly responded to in reply.

PN2134

THE DEPUTY PRESIDENT: Yes.

PN2135

MR DENTON: At paragraph 27(c) of the reply submissions.

PN2136

THE DEPUTY PRESIDENT: Yes.

PN2137

MR DENTON: "It's incorrect to suggest that the only direct testing regarding the Intertek", as Dr Sliney says in 15, "report is based on the very technology the subject to this arbitration. While Intertek may not be accredited Dr Dain gave evidence he has still a level of confidence in their reporting because they are accredited in other areas", and there's the transcript reference of Dr Dain giving that evidence.

PN2138

THE DEPUTY PRESIDENT: Yes. Yes, so that goes to the testing, but is there any significance I suppose to say that his reports are incomplete?

PN2139

MR DENTON: I don't put any significance on that, and largely because if you'll recall the evidence of Dr Dain itself it was – and this is something I will come to when we're dealing with whether there should be any further studies, he was concrete in his evidence. His expert opinion had no qualifications to it, such were his expert qualifications, that there was no "if maybe this occurs" or "if maybe in those certain situations". As I said just before he has no reason to have – I won't paraphrase:

PN2140

I have no concerns whatsoever regarding its safety.

PN2141

The other point to note generally on the evidence that's before the Commission about the safety of the technology is firstly that the union does concede that none of its material suggests or in itself proves that the Guardian system will harm the eyesight. It was also conceded by Mr Hosking that the TWU and its representatives did not speak to any expert in the field that would say that the Guardian in itself is not safe.

PN2142

So dealing with the expressed concern number 3 the infrared light emitted from the system may cause health problems including but not limited to a damage to a driver's eye, Toll's position on this is consistent with the evidence which is referred to. The use of the Guardian technology is widespread and there's no evidence before this Commission that has ever caused any safety concern to anyone. The evidence before the Commission demonstrates unequivocally there is no risk posed by the Guardian technology and that this concern is not sufficient to establish that the further implementation is plainly unjust or unreasonable given the expert evidence before this Commission.

PN2143

That ties in with concern number 4 that there's a lack of definitive proof that the infrared light emitted from the system is safe. As I was saying, on any reading of their reports the opinions of Dr Sliney and of Dr Dain are definitive. Their expertise has never been challenged. Indeed, it's accepted, and the authoritative opinions of these two leading experts in the field could not be more concrete on the safety. This is not a case where the safety of the technology is touch and go. There are no qualifications; there are no changes that were put to them, either perceivable or hypothetical about the environment that may alter any expert opinion in any way whatsoever. And of course there are no contradictory results to be found anywhere in the evidence. Although the TWU members in their evidence say that they require consensus from "the whole scientific community" there is no evidence before the Commission of any member of the scientific community having any contrary view to Dr Dain or Dr Sliney at all.

PN2144

Concern number 5 is in regards the lack of definitive studies into the effect of the infrared light emitted from the system during prolonged night driving. The evidence on this point is that the exposure during the day is the same as exposure during the night, and that this concern therefore could have no meaningful impact on the decision making of the Commission.

PN2145

Then concern number 6, finally, the lack of definitive studies into the effect of infrared light emitted from the system onsite. So perhaps unsurprisingly given that that concrete nature of the opinions I've just been referring to when Dr Dain was cross-examined on this point he said that any further studies would be an exercise in futility. He said, "It's an exercise in the predictable and I am 100 per cent confident in the results that you would come to at the end".

PN2146

In terms of the only manner of testing that's been articulated by the union in any of its materials, that came through the witnesses, Collin and Kevin Markham under cross-examination where these DRC representatives said as a minimum the testing that would be required must be conducted over a 20 year period, involve drivers who work 14 hours a shift six days a week could not be conducted on a Toll employee, and it was to involve "extra things too", which were not articulated.

PN2147

So, sir, it's obvious that a reasonable person in the position of Toll having access to all the expert advice as to the safety of the Guardian would not reasonably insist on such a test. Despite this the TWU in its written submissions at paragraph 32 does submit that the Guardian should not be implemented without at least the two conditions being met that Toll undertake appropriate testing and analysis of the operation in the context of its operations, and that annual health checks undertaken by employees be expanded to include eye examinations.

PN2148

Further, at paragraph 51 of its submissions, the union says at the very least any introduction of the guardian should be subject to further study in the particular circumstances of Toll's business and regular medical assessments. Deputy President, these submissions invite the Commission to start informing itself as to how this technology should be further implemented, and it does so without giving the Commission any sort of guidance or providing any evidentiary basis for the request.

PN2149

Despite the submissions saying that it's obvious that a straight forward study could be done on the use of Guardian technology, without saying what that study would be or what it would consist of, it again ignores the evidence before the Commission that: (a) such a study is predetermined to find no adverse results; (b) there is no purpose in spending money to produce a predictable outcome; and (c) the only thing that its members, the drivers' representative committee will accept is nothing less than this study performed over a 20 year period 14 hours a day six days a week. That study is not straight forward.

PN2150

So that's Toll's position in regards to the articulated dispute and expressed concerns. Finally ‑ ‑ ‑

PN2151

THE DEPUTY PRESIDENT: With the ‑ ‑ ‑

PN2152

MR DENTON: Yes.

PN2153

THE DEPUTY PRESIDENT: - - - health checks am I right in assuming that that may have been discussed prior to this dispute coming to the Commission? Because I understand that what is proposed is that the drivers that are subject to the technology as part of their annual health check then have an eye test.

PN2154

MR DENTON: I think there was – one of the drivers did give evidence on this point that there are medical assessments, but that the type of testing that they're seeking is not the type that's currently being provided by Toll. Again, a new enterprise agreement was just entered into between these two parties. My understanding is that that does not make any provision for the type of eye testing being sought in the submissions, but the union entered into the agreement in any event.

PN2155

THE DEPUTY PRESIDENT: All right. The position on the study is in essence that based on the evidence of Dr Dain it would be an exercise in the predictable or futile?

PN2156

MR DENTON: It's an exercise in futility.

PN2157

THE DEPUTY PRESIDENT: All right.

PN2158

MR DENTON: But he says he's 100 per cent confident as to what the results would be and there's just no benefit in spending money on something where you know what the outcome is, which in many ways can be also attributed to any additional amended eye examinations. But it's futile to start testing for damage when it's known that there's no damage that can be caused.

PN2159

The final point I want to touch upon past the concerns is that in Toll's written submissions there was a case that's been referred to a number of times defined as the DriveCam case. The citation being [2014] FWC 2945, a decision of Gregory C. That case was a dispute between Toll and the TWU under the 2013 agreement, and it involved a dispute as to whether Toll could implement the DriveCam technology into its Victorian fleet.

PN2160

THE DEPUTY PRESIDENT: Yes.

PN2161

MR DENTON: That was under the 2013 agreement, but again the relevant clauses that we're dealing with in the 2017 are the same. As to whether Toll had the right to implement the DriveCam technology Gregory C said at paragraph 72:

PN2162

I have considered the various provisions in the Agreement that have been referred to ... and am satisfied there is nothing in the Agreement that precludes Toll from doing what it now proposes.

PN2163

Paragraph 76, the Commissioner said:

PN2164

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

PN2165

And at paragraph 85 he says:

PN2166

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

PN2167

So, sir, given that the real difference between the DVR technology that we're dealing with and the DriveCam technology that was dealt with in that case, is that this new technology records continuously rather than as a result of being triggered by a G-force event.

PN2168

It's very hard to see how this Commission could come to a different conclusion about the new technology, which is again outward and driver facing cameras that can contribute to better safety outcomes. This is particularly so in circumstances where the evidence of Toll management is that the DVR ensures that Toll's reporting systems are actually better equipped to ensure the safe system of work as opposed to just having that select 12 seconds of footage that you get from the DriveCam. In those circumstances it's better able to comply with its obligations under clause 40.

PN2169

Finally, in regards to the evidence that was put on by the TWU in the DriveCam case the Commissioner said at paragraph 81:

PN2170

I do not take issue with the fact the TWU and its members in Victoria have these concerns. However, there was little evidence provided in the proceedings to substantiate these concerns, despite the fact the DriveCam system has been in place in other States for at least two years, and in some cases longer. It is also in place in other countries according to the evidence.

PN2171

At 82 he says:

PN2172

It could be expected evidence from the operation of the system elsewhere would have been provided to the Commission to support the concerns being raised. However, apart from some exchanges in cross examination about an employee in Queensland ... there was little else put to the Commission by way of specific evidence to support the concerns being expressed by the TWU and its members.

PN2173

Again, sir, a similar finding in this case is almost inescapable. I've addressed the Commission as to the nature of the evidence that was in effect completely one-sided when it comes to any potential safety hazard of the Guardian despite that the TWU in Victoria having concerned members raising issues about the DriveCam technology before this Commission, but appears to have approached this dispute in the same manner.

PN2174

THE DEPUTY PRESIDENT: So your proposition is that insofar as the DriveCam is concerned there is nothing in essence that's different about the technology except that it films continuously as opposed to on a ‑ ‑ ‑

PN2175

MR DENTON: That's the main difference.

PN2176

THE DEPUTY PRESIDENT: The main difference.

PN2177

MR DENTON: So in terms of, for example, retrieving footage that's been captured under the DVR technology it has to be physically retrieved from the box of the truck. I think under the DriveCam technology it can be accessed online. But the DriveCam technology is you get the 12 second recording that's triggered by a G-force event. I think there was some evidence that in certain circumstances that's proved to be not as reliable as Toll would like, because certain things have been missed because a truck didn't register there was a G-force event and therefore there was no recording.

PN2178

THE DEPUTY PRESIDENT: So you say any concerns about DriveCam have been traversed before?

PN2179

MR DENTON: DriveCam has been dealt with, yes, by Gregory C.

PN2180

THE DEPUTY PRESIDENT: But with there being no difference between DriveCam and DVR apart from the length of the filming and the manner in which it's filming that it will start upon ‑ ‑ ‑

PN2181

MR DENTON: The key moving to the accessory position.

PN2182

THE DEPUTY PRESIDENT: ‑ ‑ ‑ the key being in the ignition, and the other starting on a G-force event; that there is, in your submission, nothing to see here?

PN2183

MR DENTON: Yes. That's why I say it's very hard to see how a different conclusion can be reached. The concerns expressed by the TWU members in regards to DVR have been framed such that it doesn't encapsulate what was raised by DriveCam, for example, it has that ability of filming while they're on a meal break. The DriveCam obviously couldn't do that. I've addressed you as to what I think about that concern.

PN2184

THE DEPUTY PRESIDENT: Yes.

PN2185

MR DENTON: Then there's the general issue about ‑ ‑ ‑

PN2186

THE DEPUTY PRESIDENT: What's it used for.

PN2187

MR DENTON: What's it – is there safeguards that's going to be used for things other than to ensure safe driving. I've addressed that.

PN2188

THE DEPUTY PRESIDENT: Okay.

PN2189

MR DENTON: Those are my submissions, sir, unless there's anything else?

PN2190

THE DEPUTY PRESIDENT: Yes. I'll be asking Mr Gibian this as well. There's a bit of debate round the Australian Standards and the eight hour period of exposure. So can you just summarise your position as to what I should make of that and in particular in relation to Dr Dain's opinion and his evidence?

PN2191

MR DENTON: Yes. I think that was raised in the TWU's written submissions, and it's been dealt with in the reply. Again, Deputy President, I would direct you to paragraph 27 of Toll's reply submissions, particularly subparagraph (d).

PN2192

THE DEPUTY PRESIDENT: Yes.

PN2193

MR DENTON: In that submission what we've done is effectively instead of trying to paraphrase the expert we've copied out the relevant transcript and what we say is the salient part of his evidence in bold at (ii) his expert evidence is that it makes no sense to apply an eight hour limit to these particular hazards.

PN2194

He concluded at the end there under cross-examination that's not what the standard actually says. He says:

PN2195

I think the standard is ambiguous in this and I understand your interpretation, but I have a different interpretation of it.

PN2196

Dr Dain's expert opinion on this is what we say should be accepted. He has expertise, not only just in regards to this type of technology but as the footnote says down the bottom, his expertise also included that he was the chair of the Accreditation Advisory Committee in optics and radiometry. So if there's to be some sort of ambiguity, which is conceded by Dr Dain, his explanation of that ambiguity, and obviously more importantly, what flows from any ambiguity is what should be accepted by this Commission.

PN2197

THE DEPUTY PRESIDENT: So the proposition you put to him that the technology will be used for in excess of eight hours in the Australian standard imposes, if you like, some sort of a limit, a cap on the length of the exposure, or a duration of the exposure. Am I characterising that correctly?

PN2198

MR DENTON: I think – I'm not sure whether we're referring to thermal risk or acute risk or – there were a few specifics that become a little bit confusing I must say.

PN2199

THE DEPUTY PRESIDENT: Yes.

PN2200

MR DENTON: Without that having the explanation from the expert. But as you can see from – sorry, I would say that paragraph 29 of Dr Dain's report says that the Guardian is suitable for continuous use without risk to health. There is an answer as well about prolonged exposure where he says at paragraph 52(ii), he says that:

PN2201

What is safe at 1000 seconds or 10 seconds as applicable to crystalline lens or the retina respectively is safe forever.

PN2202

So in other words these time limits need not be concerned with when we're dealing with this type of radiance.

PN2203

THE DEPUTY PRESIDENT: Was it a case that the standards haven't kept up with technology?

PN2204

MR DENTON: I won't re-phrase what Dr Dain said. He said that there's some ambiguity but he's interpretation of it is that there's no sense applying that sort of limit to this technology or to this hazard. Again he says we've taken the 1000 second or the 10 second limit. It makes no sense to apply an eight hour limit. What's safe for those second limits is safe forever, and it is suitable for continuous use given that it meets the exempt rating under those tests and by a substantial margin.

PN2205

THE DEPUTY PRESIDENT: Thank you. The question to be determined, you're saying that the right to further implement doesn't concern the question of how to implement.

PN2206

MR DENTON: Yes.

PN2207

THE DEPUTY PRESIDENT: You're saying that the right to further implement is whether it's reasonable for management to proceed with what it proposes.

PN2208

MR DENTON: Would a reasonable person in the position of Toll be able to further implement these technologies. The position of Toll is that it has already implemented these technologies around the country, has done so for a number of years; has obtained expert advice, there's expert evidence before this Commission; there's no evidence to say that it's ever caused any adverse effect, and in fact they've got expert advice saying that there is no risk that it would do so. So does it have the right – would a reasonable person in its position further implement these technologies? We say yes.

PN2209

THE DEPUTY PRESIDENT: Thank you.

PN2210

MR DENTON: Thank you, sir.

PN2211

THE DEPUTY PRESIDENT: Yes, Mr Gibian.

PN2212

MR GIBIAN: Thank you, Deputy President. The TWU is also substantially content to rely upon its written submissions that were prepared towards the end of last year in connection with the earlier dispute, and, as has been canvassed, the purpose of today's hearing was substantially to avoid any potential difficulties that may have arisen as a result of the commencement into operation of the 2017 agreement ‑ ‑ ‑

PN2213

THE DEPUTY PRESIDENT: Yes.

PN2214

MR GIBIAN: - - - noting the disagreement as to whether that was the case.

PN2215

THE DEPUTY PRESIDENT: I was just trying to avoid a situation where I get to the end of this case and whoever doesn't like the decision then said there was an error in jurisdiction.

PN2216

MR GIBIAN: I think both parties have taken the approach of endeavouring to ensure that that doesn't happen.

PN2217

THE DEPUTY PRESIDENT: Thank you.

PN2218

MR GIBIAN: There's some nice legal issues that we can fortunately avoid in that respect and ‑ ‑ ‑

PN2219

THE DEPUTY PRESIDENT: Yes.

PN2220

MR GIBIAN: - - - can arise on other occasions if necessary. In that respect, as I say, we rely upon the written submissions. Can I just make a few observations in that respect arising substantially from a number of matters that Mr Denton has raised. Firstly, just in terms of the approach that the Commission would adopt in respect of the present dispute.

PN2221

THE DEPUTY PRESIDENT: Yes.

PN2222

MR GIBIAN: The dispute is a dispute originally arising under the 2013 agreement, but now also under the 2017 agreement, which obviously defines dispute in a very broad manner, and permits the Commission to arbitrate and otherwise determine the rights and obligations of the parties. The relevant touchstone upon which the Commission would operate is a judgment about reasonableness of the steps that Toll proposes to implement, or the measures that Toll proposes to implement and that arises from what was clause 35 or is now clause 40.

PN2223

I do or the TWU does not entirely embrace entirely what Mr Denton has said as to the approach to be adopted in the sense that, as I understood the submission, it was that the Commission would look at the matter from the perspective of the employer and is limited in some sense to whether any reasonable employer would adopt the step. That is not, in my submission, the approach that the Commission would adopt. The Commission would look at whether it can be satisfied that the measures proposed to be implemented are reasonable steps in pursuit of the objective of improving or protecting health and safety. I acknowledge, of course, that a number of decisions of the Commission have accepted that in certain respects the Commission will have some regard to management's view as to the way in which a business would be run, and I don't suggest that Toll's view is irrelevant, but I don't embrace the submission that the Commission would look at these issues from the perspective of the employer. Rather the Commission would make an assessment as to whether it is satisfied, on the material that's come before it in the dispute, that the measures proposed to be introduced are reasonable steps to achieve the objective contemplated by what's now clause 40 of the 2017 agreement.

PN2224

In respect of the two technologies with which we are concerned, can I firstly deal with the DVR technology. I think Mr Denton referred to the decision in respect of the existing DriveCam technology and suggested, I think, that they are the same or raise the same issues. With respect, that is not the case for at least three reasons. Firstly, the justification for the implementation of the continuous DVR technology is again said to be a safety and justification. In that respect any perceived or alleged safety benefits from a continuous recording system are difficult, with respect, to accept. Unlike the DriveCam technology the DVR technology does not permit any type of real time notification that incidents have occurred.

PN2225

The DriveCam technology does allow real time notification that an incident has occurred, which one can conceivably appreciate might give rise to a safety benefit. All that the continuous DVR technology does is to record continuously the driver internally/externally of the vehicle throughout the period of the vehicle being in operation, including when it is parked up, if it's at least placed in the utilities mode.

PN2226

All that could occur in that respect is that if there is a crash or an incident and the technology is undamaged then there could be some investigation after the event by viewing of the technology. There's no difficulty obviously with the outward facing cameras that has been raised. The concerns are with respect to the inwards facing cameras, and that ‑ ‑ ‑

PN2227

THE DEPUTY PRESIDENT: Could I just stop you there, Mr Gibian?

PN2228

MR GIBIAN: Sorry, of course.

PN2229

THE DEPUTY PRESIDENT: Sorry. I appreciate it's difficult when we're over the video. I just want to ask you, what's the significance of real time notification?

PN2230

MR GIBIAN: Well, the DriveCam technology, as we'd apprehended it operates, it's intended to provide for an immediate timely notification that an incident has occurred with respect to a vehicle, which would allow action to be taken, either to render assistance, or to ensure that a vehicle is undamaged or if there is some fatigue issue with the driver involved, that the driver could be contacted and appropriate steps taken to ensure that the incident did not affect the driver or the vehicle in a manner which gave rise to any safety concern in the operation of the vehicle at that time. Now, that's not the case with the DVR technology. It has to be recovered physically from the vehicle and viewed after the event.

PN2231

THE DEPUTY PRESIDENT: But in both cases the event will have occurred?

PN2232

MR GIBIAN: That is correct, but, as I say, the DriveCam technology would allow immediate notification and for action to be taken at that time immediately with respect to the event. The DVR technology doesn't allow any notification that events occurred at all, and in that respect the safety benefit, if any, would seem to be negligible or restricted to a post-crash investigation process. It doesn't permit any type of action to be taken at the time of an event.

PN2233

THE DEPUTY PRESIDENT: Yes. But if it's ‑ ‑ ‑

PN2234

MR GIBIAN: I understand what you say, Deputy President ‑ ‑ ‑

PN2235

THE DEPUTY PRESIDENT: Yes. All right.

PN2236

MR GIBIAN: - - - that the DriveCam doesn't stop an event occurring as such.

PN2237

THE DEPUTY PRESIDENT: Yes.

PN2238

MR GIBIAN: But what it does do is immediate, or at least in a very timely way, transmit an able to be viewed video of the incident which could allow, as I say, assistance to be rendered or the company to ascertain whether or not the event has led to any damage to the vehicle or effect on the driver which might compromise the ongoing operational safety of the vehicle and the driver.

PN2239

THE DEPUTY PRESIDENT: Yes. Thank you.

PN2240

MR GIBIAN: None of that happens with the DVR technology. The other reasons why it is distinct is that the concerns that the drivers have with respect to the continuous DVR technology simply did not arise with respect to the DriveCam technology in the sense that the privacy concerns were, if not non-existent in relation to the DriveCam technology, at least negligible in the sense that it records only when an incident occurs and only for a short period of time rather than having the continuous observation of the drivers. And similarly with the use of the – I think the use of the footage for other purposes was raised in the DriveCam context, but obviously again that concern was of a much reduced type compared to a full-time recording device that recorded the driver at all times. I think that the privacy concerns are reasonably plainly explained by the witnesses.

PN2241

In respect of the use of the footage Mr Denton's response to that is to refer to Toll's policies in that respect. With respect to those, ultimately and I've referred to this in the written submissions, Toll's position was that the policies controlled in some respect who was authorised to use the footage, but ultimately Toll reserved the right to use the footage for whatever purpose it thought appropriate subject to the individual employee within Toll who was viewing to utilising the footage having been authorised to do so by the appropriate management person within Toll. There was not said to be any restriction upon the use that Toll would make of the footage if it's deemed inappropriate in any particular case. The restrictions were directed at a particular individual employee of Toll utilising the footage in a manner which was not authorised by the organisation, and that is quite a distinct point from the concerns that some individual witnesses that gave evidence had about whether or not the terms of the policies would themselves be complied with.

PN2242

In relation to the Guardian technology, as you're obviously aware, Deputy President, the issue is that the device is involved directing infrared beams at the face and eyes of the drivers throughout the time that they are driving the vehicles. The individual members of the TWU have a common sense and understandable concern about such a device and whether it is and can be operated safely without risks, particularly long-term risks, to their health and in particular to their eyesight, and given that is a common sense concern that one can understand, leaving aside the expert evidence for a moment, it is appropriate that there be a high threshold of satisfaction for such a device to be implemented and that it not be implemented by Toll without Toll having before it and the drivers having access to appropriate material demonstrating it can operate safely in the long term.

PN2243

What is clear in relation to the evidence is that well, Toll had no material before it when it decided to implement this device in relation to its safety. It obtained the material, the Wirriga report and ultimately Dr Sliney only through the actions of the driver committee, and a report was obtained from Dr Dain only as a consequence of the these proceedings and indeed subsequent to the receipt of the TWU's evidence in the proceedings.

PN2244

Notwithstanding those reports which have subsequently been obtained the position clearly still remains that there is no study that's been referred to or that anyone is aware of that has been conducted in relation to the use of such a device in the context of road transport at all. Dr Dain's report was obtained in – we do make clear in the written submission, we don't criticise Dr Dain, either professionally or personally in relation to this evidence or his qualifications; however, what's clear is that Dr Dain had never seen such a device. He relied entirely upon data that was obtained, it appeared from us, only from one source, from Intertek, which is a company it is understood operating in Hong Kong which, according to Dr Dain, is not accredited to undertake that kind of testing. My learned friend, in his reply submissions, refers to Dr Sliney. I think I've dealt with that in the submissions in the passage to which you refer, Deputy President, that it was entirely unclear whether Dr Sliney had undertaken any research himself or upon what research he relied.

PN2245

So what we have is a situation in which there is no study has ever been conducted in relation to the use of that technology in the road transport context. We have an expert opinion from Dr Dain to the effect that he's not concerned about it, but in circumstances where Dr Dain has not himself ever even seen such a device, and in circumstances which it appears that he relies upon a single set of empirical studies undertaken by an organisation that was not accredited to undertake that type of testing, whatever Dr Dain may say about whether it's accredited to undertake other types of testing, and in circumstances in which the Intertek report indicates that it was utilised on the basis that there would be eight hours of maximum exposure, and in relation to which Dr Dain indicated that that was derived from the Australian standards which referred to an eight hour limit. And in that respect I understood the evidence of Dr Dain to be that there is an eight hour limit in the standard. He raised a question as to whether it was appropriate for there to be an eight hour limit in relation to hazards which caused thermal as opposed to biological effects upon the eye. He did not contest that that was what the standard said. He raised a question as to whether or not that was appropriate for thermal, I should say, rather than biological hazards and expressed an opinion in that respect.

PN2246

So, in summary, the question is really whether or not there is sufficient material to demonstrate or to make it reasonable for Toll to implement this technology involving, as it does, the use of infrared beams projected into the faces and eyes of its drivers throughout their driving shifts in circumstances where we have no study which has been conducted into the use of the device in that context. We have, at best, a report from an expert expressing firm opinions, I acknowledge, but an expert who had never seen the device and involves only reliance upon one set of testing as we'd apprehend it from a non-accredited source, and in circumstances in which, although Dr Dain expressed an opinion about the appropriateness of the standard, in circumstances in which the Australian standards suggests an eight hour limit on the use which would be exceeded in the case of these individual drivers.

PN2247

The position that the members – now, the members are, as you saw in the evidence, Deputy President, remain concerned about the implementation of this technology. The position of the TWU is that given those concerns it shouldn't be implemented and it's not reasonable for it to be implemented at least without further study being undertaken and it is somewhat inexplicable to the members that Toll would refuse to undertake such a study.

PN2248

One individual witness referred to a 20 year study. That's not the position that we have put forward in submissions obviously. We have referred to the Wirriga Report, which a mine operator, operating on a much smaller basis than Toll does, in terms of the number of individuals involved and the number of vehicles involved, undertook studies and thought it appropriate to undertake a study in relation to the use of similar device in mine vehicles, but Toll remains steadfast in refusing to commission or undertake any study or any further inquiry in relation to this.

PN2249

THE DEPUTY PRESIDENT: What should I make of the Wirriga Reports? I mean, you say in your submissions the authors of the Wirriga Report have expressed the opinion that their research was only relevant to the circumstances of the mining trucks in the mine site that was subject to their research. Does it have any relevance here?

PN2250

MR GIBIAN: As we understand it was originally relied upon by Toll as demonstrating the appropriateness of the device.

PN2251

THE DEPUTY PRESIDENT: Yes.

PN2252

MR GIBIAN: Upon inquiry the authors indicated that it oughtn't be relied upon outside of the context of which it was conducted in the mining site. I referred to it just now for the purposes of indicating the kind of approach that other employers have taken when they have been implementing in this type of technology in their own businesses, that is, they have undertaken discrete studies of the use of such a device, in situ as it were, in the circumstances in which it was actually to be applied.

PN2253

THE DEPUTY PRESIDENT: Yes. But I can see why the authors of the report might say, "Well, look, we reported in relation to our brief and we don't want to be held to matters beyond that", but is there any relevance in the Wirriga Report for what sort of impact the technology might have? I mean, you know, the duration of the exposure. You know, presumably it was in a vehicle and someone was ‑ ‑ ‑

PN2254

MR GIBIAN: Yes, it was in a vehicle. I'm not sure, and I'd need to refresh myself as to whether it dealt with the duration of exposure. I don't believe it did so.

PN2255

THE DEPUTY PRESIDENT: No.

PN2256

MR GIBIAN: It certainly was in a context of a mine vehicle. I think in short my submission would be that it's a piece of evidence which can't be sufficient to demonstrate the appropriateness of the technology in the context of road transport, but it is ‑ ‑ ‑

PN2257

THE DEPUTY PRESIDENT: I'd be interested as to why, that's all, because what's going to be different? Someone is in a cabin of a vehicle and they're going to have infrared ‑ ‑ ‑

PN2258

MR GIBIAN: Yes. I think there are a couple of potential differences at least.

PN2259

THE DEPUTY PRESIDENT: Yes.

PN2260

MR GIBIAN: I don't know that there's anything that suggests the vehicles are the same in dimensions or type, but certainly the duration, the fact that it involves night driving as well as day driving are distinctive features of the operation of road transport as opposed to vehicles in a mine setting. And as I say I guess you may say, Deputy President, it's unsurprising that the authors of a report would say it cannot be used outside of the context in which it was undertaken, but that is because it would be unsafe to do so, with respect, at least unless the authors of the report suggested otherwise.

PN2261

The other feature that the drivers indicate should accompany any implementation of this device would be that there be an additional feature of medical examinations that they've conducted to ensure that they can be given confident that there is not some adverse effect on the eye. It is again, with respect, difficult to understand why Toll would not agree to that. The evidence was that annual medical testing does occur. It's accepted this would be an additional feature of the annual medical testing but it's difficult to see why that would be an unreasonable impost in the circumstances of the implementation of the new technology, not only in the context of Toll's business, but a new technology per se, in the sense that it has only been around for the last few years.

PN2262

THE DEPUTY PRESIDENT: Do you say that that has any relevance – I mean, because to me that seems to be, on one view, it's a post-implementation measure that may ‑ ‑ ‑

PN2263

MR GIBIAN: It is relevant.

PN2264

THE DEPUTY PRESIDENT: - - - you know, allay concerns if the technology was implemented but are you saying that it goes to the question of reasonableness of the right to implement, because there won't be any ‑ ‑ ‑

PN2265

MR GIBIAN: Yes. Yes.

PN2266

THE DEPUTY PRESIDENT: That it's unreasonable to implement because there's not going to be any sort of rigor or revaluation of it after it's implemented?

PN2267

MR GIBIAN: Yes. Yes. The question of the reasonableness of implementing a measure incorporated with it the conditions or circumstances in which it would be implemented and we do say it would be unreasonable for it to be implemented without some further study being undertaken to ensure that there isn't a risk presented and without there being - particularly where what's being asked for is far from onerous, some ongoing assessment of a medical type to ensure that adverse consequences weren't resulting. As I say, in circumstances where annual medical exams occur in any event, and an additional feature of the annual medical exam would hardly seem to be an onerous requirement.

PN2268

Mr Denton referred or said that there'd been a new enterprise agreement which hadn't incorporated this element. I'm not sure the enterprise agreement deals with medical assessments at all, so I'm not sure that that consideration arises at all. In any event, given that these proceedings were on foot it would be very surprising indeed if the parties would seek to cut across the proceedings by seeking to ventilate that matter in the context of the enterprise bargaining negotiations.

PN2269

THE DEPUTY PRESIDENT: Yes.

PN2270

MR GIBIAN: Unless there's anything further, I think those were the ‑ ‑ ‑

PN2271

THE DEPUTY PRESIDENT: Yes. I've just got a couple of things, and it arises out of paragraph 46 of your submissions.

PN2272

MR GIBIAN: Yes.

PN2273

THE DEPUTY PRESIDENT: You start there with the statement:

PN2274

It's not submitted that the material obtained by the drivers in itself proves that the Guardian system will harm the eyesight of the drivers. However, they've raised concerns in the minds of the drivers.

PN2275

My overwhelming question, Mr Gibian, is what am I to make of these studies? None of the authors were witnesses before me. There may have been some comment with respect to some of them, I just can't recall now, by Dr Dain, but their reports – some of them strike me to be reports going to general considerations, but how relevant are they to Guardian?

PN2276

MR GIBIAN: They, in a general sense, concern infrared technology. I don't think I can put it higher than I've endeavoured to do in paragraph 46 of the written submissions, which is that I can't say, and I don't submit that, they affirmatively prove that the Guardian technology, in itself is damaging. What they do, and it's clear that they were provided by the drivers themselves, what they do is demonstrate that there are questions to be answered here about the long-term use of devices that direct infrared lights in the eye, and they support the submission that it's not reasonable, given the other matters that I've referred to, the falsity of other reports and evidence, that it's not reasonable for the technology to be implemented without an appropriate study being undertaken by Toll.

PN2277

THE DEPUTY PRESIDENT: Yes. I'm just ‑ ‑ ‑

PN2278

MR GIBIAN: I'm not sure I can put it higher than that.

PN2279

THE DEPUTY PRESIDENT: Yes. I'm just conscious of, you know, am I to sift through these reports searching for something that isn't already highlighted in your submissions?

PN2280

MR GIBIAN: I've endeavoured to summarise what I ascertained to be relevant in the extract in paragraph 46.

PN2281

THE DEPUTY PRESIDENT: Thank you. That's all, thank you. I don't have any further questions, Mr Gibian.

PN2282

MR GIBIAN: If the Commission pleases.

PN2283

THE DEPUTY PRESIDENT: Mr Denton, anything in reply?

PN2284

MR DENTON: Just a few brief points.

PN2285

THE DEPUTY PRESIDENT: I suppose one question I've got arising out of that is this.

PN2286

MR DENTON: For me?

PN2287

THE DEPUTY PRESIDENT: For you, sorry?

PN2288

MR DENTON: Yes.

PN2289

THE DEPUTY PRESIDENT: Yes. Which is, given the manner in which the agreed question is framed, in determining this dispute why might I not impose an obligation to eye test if it was introduced?

PN2290

MR DENTON: Again, the issue we're dealing with is not the introduction of something. It's the further implementation in a manner that's already being implemented. The same vice that comes with whatever a straight forward study that needs to be implemented is there in the suggestion of these further eye testings. There's still no guidance as to what sort of testing that's going to require, who is supposed to perform it. From a business point of view, we have no idea whether it would occasion further costs or whether it can be implemented by the same people that are already conducting eye exams, and there's just not sufficient evidence before the Commission to say one way or another what the answer to those questions are.

PN2291

And, again, we go back to what the evidence actually is which is that, you know, any further testing on this sort of technology, any further going down the rabbit hole is an exercise in futility. We're now going to be performing examinations on drivers where we know that there's no damage that could be caused. I don't know what sort of cost that would intake and I don't know what sort of time would be spent by what sort of eye professional. And to simply just throw up that there should be some broad test is going to lead to all sorts of complications as to whether Toll itself is properly complying with such an order.

PN2292

THE DEPUTY PRESIDENT: Yes.

PN2293

MR DENTON: In terms of specific points in reply just briefly and in order in which they were raised, my learned friend spoke about what the appropriate test should be by the Commission in terms of answering this question. The test that I have referred to is that from Lawler VP in CFMEU v HWE Mining, the citation for that is [2011] FWA 8288, and it is referred to in my opening submissions. The reason why we rely upon that test is from paragraphs 7 to 11, the Vice President undertakes an analysis of the relevant authorities when dealing with managerial prerogative and comes to the conclusion at paragraph 12 that:

PN2294

I proceed on the basis that an exercise of managerial prerogative will not be unreasonable in this sense if a reasonable person in the position of the employer could have made the decision in question.

PN2295

Whilst my learned friend somewhat restates his own test that should be applied in this situation, it's my submission that that is the proper approach for the Commission in this proceeding.

PN2296

THE DEPUTY PRESIDENT: Are we splitting hairs here, or ‑ ‑ ‑

PN2297

MR DENTON: I mean, in a sense that's a point I just want to raise where it's not been accepted that that's the test.

PN2298

THE DEPUTY PRESIDENT: Is it that you're saying it's a reasonable person in the position of the employer. Mr Gibian, you're saying it's a reasonable person at large; is that it in essence?

PN2299

MR GIBIAN: Look, I think that's right. I don't know that too much would turn on it, but there was a drift, and frankly I don't think it's what Lawler VP said either. But my learned friend's submissions did drift into one looks at it from the position of the employer, which I don't think is correct, and in any event here I think it is accepted one is looking at a particular provision of an agreement which refers to the taking of reasonable steps. So I think that that's – it's not a so unreasonable no reasonable person would do it type of test; it's a question of whether this is a reasonable step to achieve a safety outcome.

PN2300

THE DEPUTY PRESIDENT: Thank you. Sorry, yes.

PN2301

MR DENTON: The next point that was raised was that a slight challenge to how the DVR system could be a safety measure because it doesn't provide real time footage ‑ ‑ ‑

PN2302

THE DEPUTY PRESIDENT: Yes.

PN2303

MR DENTON: - - - so how could it be safe. Again, the similarities between how it's used with DVR is also apparent in paragraph 84 of the DriveCam case where Gregory C says that:

PN2304

Mr Bishop –

PN2305

Which was a, I think, witness for the union –

PN2306

also suggested –

PN2307

At least a representative perhaps –

PN2308

The system was not a significant safety initiative because it was essentially a reactive rather than a proactive tool, and did nothing to actually prevent incidents or particular types of behaviour from occurring or being exhibited.

PN2309

Which is now what Toll is seeking to do with Guardian, and that's still being challenged. Gregory C goes on to say:

PN2310

However, various witnesses made reference to the fact the footage can be used to demonstrate to drivers, by means of coaching and training sessions, how certain behaviour can contribute to incidents, and how this coaching and training can assist in altering behaviour.

PN2311

He says:

PN2312

In this context it does seem the system can be proactive in terms of changing behaviour so that it does not contribute to incidents occurring.

PN2313

And that's exactly how footage obtained from the DVR can also be used. But aside from the substantive points that were raised by my learned friend I think were already dealt with in my reply submissions, sir, so nothing further.

PN2314

THE DEPUTY PRESIDENT: Thank you. Thank you, Mr Denton. Thank you, Mr Gibian. I will reserve my decision and issue a decision and reasons in writing in due course. Thank you.

ADJOURNED INDEFINITELY                                                           [3.26 PM]