The Case

Toll Transport Pty Ltd T/A Toll Shipping v Transport Workers’ Union of Australia (2018)

The Transport Workers Union (TWU) and Toll Transport Pty Ltd (Toll) were involved in a dispute before the Fair Work Commission (FWC) involving the proposed installation of surveillance devices in Toll’s vehicles to monitor drivers’ fatigue and distraction.

The TWU argued:

• the surveillance devices would also monitor non-driving activities, which was intrusive;
• the recorded information could be used by Toll for purposes other than safety; and
• the infrared light involved in the distraction monitoring system was not sufficiently tested and may harm drivers’ eyes. No expert evidence was presented by the TWU to support this claim.

Toll argued:

• the surveillance devices were to aid drivers by increasing safety;
• the infrared light involved in the distraction-monitoring system would not damage driver’s eyes (Toll submitted expert evidence to support its position);
• its competitors were using the technology;
• the technology was a requirement for some logistics contracts;
• the devices assisted Toll to comply with its safety obligations under its enterprise agreement and work health and safety legislation; and
• as a matter of managerial prerogative, it was entitled to introduce the surveillance devices.

The Verdict

The FWC held:

• the safety benefits of the surveillance devices outweighed the TWU’s concerns;
• Toll’s policies explained the use of the devices;
• any footage recorded could be used by either party if a future dispute arose; and
• Toll could implement the surveillance devices.

The Lessons

Prior to the introduction of surveillance devices, it is important to:

• check the applicable workplace surveillance laws in your state or territory, as these laws vary significantly across Australia – what might be lawful in one state may not be in another;
• comply with any requirements (like consultation) under an applicable enterprise agreement or award; and
• have cogent reasons for introducing surveillance devices. This will help you in any negotiations with unions and/or employees, and if required, assist you to deal with any dispute that may arise about the implementation.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.