Australia: Fair Work Commission decision approves driver monitoring system

Last Updated: 17 May 2015
Article by Danella Wilmshurst

Most Read Contributor in Australia, September 2016

A recent decision of the Fair Work Commission (FWC) has confirmed that a driver monitoring system that films vehicle operators as they work can be lawfully installed in Australian heavy vehicles.

Facts of the case

In Toll North Pty Ltd & Anor v Transport Workers' Union of Australia [2014] FWC 2945 (Melbourne, 22 July 2014), Commissioner Gregory determined that there was no barrier to Toll North Pty Ltd and Toll Transport Pty Ltd (Toll) installing both outward-facing and driver-facing cameras in its vehicles throughout Australia.

Toll began installing these camera systems into its vehicles in 2011, but had encountered opposition to the driver-facing camera within Victoria. The Victorian Branch of the Transport Workers' Union (TWU) opposed the change and said that it amounted to an invasion of privacy.

Issues to be determined

The issues for the FWC to determine were:

  • Could Toll proceed to install both outward- facing and driver-facing cameras in its heavy vehicle fleet in Victoria?
  • Was there anything in its agreement with employees ('Toll Group – TWU Enterprise Agreement 2013–2017') that acted to prevent Toll from installing these cameras in its vehicles?

Toll's detailed evidence

Submissions and evidence in relation to the issues were detailed. In essence, Toll relied upon evidence that the DriveCam system that the company used was effective in improving driver and road safety, and had a number of features designed to minimise any intrusion upon the privacy of drivers.

The evidence showed that the footage received from DriveCam was used in driver training and coaching, only with the consent of the driver involved, and that the focus was to use DriveCam as a coaching and skills improvement tool rather than any tool to specifically punish or dismiss drivers for contravention of good driving practice.

Toll also submitted that the installation and use of the DriveCam system did not contravene State law (namely, the Victorian Surveillance Devices Act 1999) and that in any event, the FWC is able to make an order that overrides the State-based legislation.

TWU'S argument

The TWU opposed the use of cameras facing into the cabin on the basis that:

  • inward-facing cameras and associated audio recordings are not necessary or warranted in regard to the mutual commitments in the Enterprise Agreement;
  • the proposed introduction of the inward-facing cameras would not be reasonable or lawful;
  • it did not accept that DriveCam would necessarily improve safety or that it was the right approach for improving safety in the workplace; and
  • Toll had no power under the Enterprise Agreement or letters of appointment to introduce DriveCam without the agreement of the TWU and its members.

The TWU relied upon evidence supporting its claim that a device facing a driver, which would need to be manually operated in some instances, would present a major distraction to drivers and potentially contribute to accidents, rather than preventing them.

It further submitted that the DriveCam system would not address the important causes of road traffic accidents, such as fatigue, where the problem was often a failure of different sites to abide by scheduled departure times.

Commisioner's decision

Acknowledging that both parties had argued forcefully for their position, Commissioner Gregory stated:

"On the one hand it is submitted that the DriveCam system is a significant tool being experienced by drivers involved in the often difficult and demanding work of heavy vehicle transport.

On the other hand the submissions and evidence of the TWU, and its members, raise various concerns about the potential impact of the installation and use the technology."

The Commissioner determined that there was nothing in the Enterprise Agreement to preclude Toll from the installation and use of the DriveCam system, and that the fact Toll did not raise the matter in enterprise bargaining did not preclude it from introducing these measures later on.

Furthermore, the Commissioner was not satisfied that the State-based Surveillance Devices Act 1999 acted to preclude Toll from installing and using the DriveCam system as proposed, or that any other legal or contractual barrier prevented Toll from introducing DriveCam.

Case outcome

The Commissioner concluded that the evidence indicated that "the system can contribute to better safety outcomes in the road transport industry and should be considered by the parties in this context."

However, he noted that the proposal to install the camera and audio system should only occur after employees have been provided with structured training in relation to the operation of the system, and guidelines applicable to its use.

Since this decision, Toll has continued to promote the use of the in-vehicle cameras to the wider industry as being an effective tool to improve driver safety and road safety.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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