Fair Work Act 2009

s.739 - Dispute resolution

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Queensland Rail Transit Authority Trading AS Queensland Rail

Alleged dispute about any matters arising under the enterprise agreement - dispute regarding the implementation of a vehicle data system IVAMs under clause 16 of the Agreement - plain and ordinary meaning of clause - vehicle metrics not to be used for employee discipline - dispute determined

• [1] On 2 July 2025, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) filed an application pursuant under s.739 of the Fair Work Act 2009 (the Act) seeking to resolve a dispute with Queensland Rail Transit Authority Trading AS Queensland Rail (the Respondent).

• [2] The dispute relates to implementation of an In-Vehicle Asset Management System (IVAMS) in fleet vehicles owned by the Respondent. This issue was the subject of bargaining discussions for the current Queensland Rail Network Enterprise Agreement 2023 (the Agreement).

• [3] The parties had several meetings and discussions in compliance with the dispute resolution procedure. Upon exhausting this procedure, the Applicant made an application for the Commission to assist. I convened a conference on the 24 July 2025. However, the matter was not resolved. The parties agreed to have the matter arbitrated as per clause 23.6 of the Agreement. The parties further agreed to have the matter determined on the papers.

On the proper construction of clause 16 of Queensland Rail Network Enterprise Agreement 2023, is the Respondent entitled to use In Vehicle Asset Management System (IVAMS) data, including 'harsh metrics' information, namely harsh braking, rapid acceleration and fast cornering in the manner contemplated in the Decision Notification pack, namely:

a) To provide employees with scores via email or through the driver portal

b) To provide advice to management that driver education is recommended.

• [5] The dispute centres on clause 16 of the Agreement for the introduction of an In-Vehicle Asset Management System (IVAMS). The clause is facilitative. This system collects various vehicle and engine parameters and is linked to GPS functionality. The clause, which is extensive, is reproduced in full below:

16.1 The parties agree to the implementation of an In Vehicle Asset Management System (IVAMS). With the exception of the provisions outlined in clause 16, consultation on the implementation of IVAMS will be undertaken.

16.2 The IVAMS is a GPS-linked vehicle management system designed to improve the safety of drivers and improve asset management. IVAMS will not include in vehicle video or audio recording.

16.3 Queensland Rail will have a nominated business unit that will be responsible for managing IVAMS data, including release to leaders. There will be no access to IVAMS

data to track vehicles in real time (except in emergency situations). Emergency situation is an incident requiring urgent action that may involve death or serious injury, health or safety effects, significant property or infrastructure damage.

16.4 Unauthorised review of IVAMS data in order to monitor employee performance must not occur. Queensland Rail has given an undertaking to the respective Unions that IVAMS data may only be used in an authorised investigation of reported incidents involving employees. For the purpose of this clause "reported incidents" means an incident that has been reported in accordance with 16.7.1 and 16.7.2 (exception reports

clauses) or reported incidents from witness sources who have reported an allegation of a Queensland Rail vehicle to have been driven inappropriately.

16.5 Monitoring live IVAMS data shall not be used as the sole purpose of monitoring employees' work performance/duties.

16.6 Once IVAMS data has been supplied to the leader, it will also be supplied to the employee. The IVAMS data supplied must only be relevant to the reported incident.

16.7 Queensland Rail will have access to the data generated by IVAMS to investigate matters in accordance with Queensland Rail's internal policies in the following circumstances:

16.7.1 Where an exception report (vehicle parameter report) is of a serious nature, for example, High Range speeding (e.g. above 120km/h in a 100km/h zone for 10 or more seconds) or a tampering event (e.g. an employee has tampered with the system without authorisation); or

16.7.2 Where repeated instances of exception report notifications occur that are cause for a reasonable basis of concern within a period of three (3) months, an initial conversation will be held between the employee and the leader to communicate expectations. Following this discussion, where an employee has repeated instances of exception report notifications that are cause for a reasonable basis of concern within a period of three (3) months from the initial discussion, the relevant leader will hold a further discussion with the employee to communicate expectations. Following this discussion, within a further three month period from the second individual discussion, where an employee has a further exception report notification, the employee may face discipline in accordance with Queensland Rail's relevant process. Should no repeated instances of exception report notifications occur within the further three month period following any of the above mentioned individual discussions, the process in this clause will reset; or

16.7.3 Where an investigation pertaining to the use of a Queensland Rail motor

vehicle may be assisted by the provision of data from IVAMS.

16.8 On commencement of the implementation of IVAMS, there will be an initial six-month moratorium on discipline action relating to exception reports generated from the IVAMS system. The moratorium will apply on a "business unit" basis and will commence once all of the vehicles in a business unit are fitted with IVAMS units. For the Regional business, ''Business unit'' means an Asset Manager team area (e.g. Regional Assets West) or equivalent. For the SEQ business, a ''business unit'' means a team reporting into a delegation level 5 manager (e.g. the team reporting to the Manager Traction Access and Renewals).

16.9 Once the 6-month moratorium period concluded, IVAMS parameter exception reports will be assessed and managed on a case-by-case basis in accordance with clause 16.7 outlined above.

16.10 Where there is a pattern of concern in a work team, Queensland Rail will undertake relevant training and education, including placing it as an agenda item for the Local Consultative Committee.

16.11 For the purposes of this clause, an event that may be deemed serious in nature:

16.11.1 a High Range speeding event (≥20kph over designated speed limit at the time of the event for 10 or more seconds);

16.11.2 Instantaneous speeding event of 30 kph or more over the designated speed limit;

16.11.4 driving without a seatbelt above 20 kph on a registered road.

16.12 For the purposes of this clause a pattern of repeated instances which would give

16.12.1 being over the posted speed limit by 10kph for a minimum 10 seconds on multiple occasions; and/or

16.12.2 continuous driving for more than 2 hours without a break. Excluding

wherever it is not reasonably safe to take a break; and/or 16.12.3 being over the posted speed limit by more than 15kph on multiple occasions.

• [6] The Respondent held 17 information sessions regarding its proposal to implement the IVAMS. The concerns of the Applicant have arisen now as the system is at a stage where the Respondent is intending to roll out the introduction to all fleet vehicles. The Respondent has initiated consultation as outlined in clause 16.1 and they have made a series of presentations to employees and the Applicant and have made some modifications to the initial proposal.

• [7] On 20 June 2025, the Respondent provided its final decision on implementation of the IVAMS system. The relevant decision information pack states:

Feedback: Does harsh braking or acceleration generate a report or is it just a dashboard score?

Response: These behaviours are used for education purposes only. They won't generate a formal exception report like speeding does. Drivers can view their own scores via the portal or email. This important parameter inclusion is consistent with the ongoing commitment to continuously improve and promote the health, safety and welfare of all employees, contractors and visitors.

Parameters remain included however are not subject to exception reporting and/or disciplinary action. In response to concerns about in-cab visibility by passengers or other personnel, individual drivers metrics on the harsh driving behaviours will no longer be accessible via the in cab screen. Instead, this information will be made available privately to the individual to maintain discretion and reduce any perceived peer pressure or discomfort. This important parameter inclusion ensures our shared ongoing commitment to continuously improve and promote the health, safety and welfare of all employees, contractors and visitors.

For clarity, the metrics may be used independently by the road fleet team for the investigation of major component failure, e.g. broken differential, early clutch/brake wear, damaged gearbox, for the purposes of root cause analysis to assist with either warranty challenges or may provide advice to management that driver education is recommended. e.g. accelerating too hard with a heavy load puts considerable strain on the drive train so slower acceleration, or earlier braking is required.

IVAMS will report an event via exception reporting (if a vehicle parameter is breached, an exception occurs and is

reported). The events/parameters are broken down as:

Over-Speeding - For at least 10 seconds; Being over the posted speed limit by 10kph for a minimum 10 seconds

Over-Speeding - Instantaneous; Being over the posted speed limit by more than 15kph.

Continuous Driving (Fatigue Management); Continuous driving for more than 2 hours without a break. Excluding

wherever it is not reasonably safe to take a break.

High-Range; Greater than 20 kph over designated speed limit at the time of the event for 10 or more seconds

Dangerous Speeding; Instantaneous speeding event of 30 kph or more over the designated speed limit.

Tampering; Deliberately disabling or interfering with any component of the IVAMS system

Not wearing a seatbelt; Driving without a seatbelt securely fastened, above 20Kph on a registered road.

Importantly, general vehicle performance metrics such as harsh braking, rapid acceleration, or tight cornering are not included in IVAMS exception reporting. These events may be recorded passively within the system and cannot trigger exception reports. This ensures that clearly defined safety breaches are recorded for potential follow-up, in line with the Enterprise Agreement and Queensland Rail's focus on fair and proportionate use of IVAMS data.

5.Removal of In-Cab Harsh Event Display: Harsh driving driver scores, those being harsh braking, harsh acceleration and harsh cornering, will no longer be available on the in-vehicle screen for viewing. This data will now be delivered directly to the driver via email or through the personal driver portal. This is to ensure privacy and avoiding-cab visibility. Road Fleet will have access on occasions to independently use this data to assist in root cause analysis of major component failure and to assist in challenging

• [8] The Applicant have identified specific concerns over the Respondent's proposed use harsh metrics to provide feedback to drivers or for the purposes of recommending driver education.

• [9] The Applicant's objection is not necessarily that the data cannot be collected, it is how that data might be used and that it might be in contravention of clause 16 in the Agreement. The collection of engine and vehicle data for the management of the fleet is not in contest rather the approach to providing specific data called "harsh metrics" to employees and possible consequences to the employees form the central part of the dispute.

• [10] The Full Bench in AMWU v Berri Pty Ltd[1] provides the principles regarding the construction and interpretation of clauses within the Enterprise Agreement. The principles are well known and I need not repeat them.

• [11] More recently, the Full Court of the Federal Court of Australia stated the principles applicable to the interpretation of an enterprise agreements in James Cook University v Ridd:

"(i) The starting point is the ordinary meaning of the words, read as a whole and in context.

(ii) A purposive approach is preferred to a narrow or pedantic approach - the framers of such documents were likely to be of a "practical bent of mind". The interpretation "turns upon the language of the particular agreement, understood in the light of its industrial context and purpose".

(iii) Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to "... the entire document of which it is a part, or to other documents with which there is an association".

(iv) Context may include "... ideas that gave rise to an expression in a document from which it has been taken".

(v) Recourse may be had to the history of a particular clause "Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form..."

(vi) A generous construction is preferred over a strictly literal approach, but "Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties".

(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry."[2] [references omitted]

• [12] The Applicant relies on extrinsic material of conversations held during bargaining. That evidence cannot be admitted to contradict the plain and ordinary meaning of the Agreement. It must first be determined whether clause 16 can be ascribed a plain meaning or whether it is ambiguous.

• [13] Clauses 16.1, 16.2 and 16.3 deal with consultation requirements and the rationale for the system. Further, there are assurances that there will be no real time tracking of data except for in emergencies. This clause demonstrates that the clause 16 is not intended to be exhaustive, and that implementation is to be conducted through consultation. Importantly, an objective of the scheme is to "improve the safety of drivers".

• [14] Clause 16.4 commences by stating that unauthorised review of the data to monitor performance of employees is not to occur. The clause then states:

Queensland Rail has given an undertaking to the respective Unions that IVAMS data may only be used in an authorised investigation of reported incidents involving employees.

• [15] In the context of the first sentence of clause 16.4, it is clear that the undertaking is referring to where data may be used in relation to employee performance. For the purposes of performance management, the data may only be used for authorised investigations into "reported incidents". The clause does not restrict when Queensland Rail may use the data in general. For example, the data may be used for the purposes of asset management.

• [16] Clause 16.4 goes on to specify the meaning of the term 'reported incidents': "[m]eaning an incident that has been reported in accordance with 16.7.1 and 16.7.2 (exception reports clauses)". A further category is also identified as "... reported incidents from witness sources who have reported an allegation of a Queensland Rail vehicle to have been driven inappropriately".

• [17] The plain meaning of the words indicate that there must be no unauthorised use of the data to monitor performance, clearly setting out that the use of the data must be authorised. However, there is definition or procedure explaining what might make a review authorised. Ultimately, the undertaking makes it clear that management cannot randomly review data to assess employee performance, it must be authorised in some way.

• [18] A "reported incident" has two sub-categories. First, are incidents that are defined in 16.7.1 and 16.7.2. Second, incidents may include where witnesses report on allegations of inappropriate driving.

• [19] The dispute centres on the reporting of "harsh metrics" meaning harsh cornering, acceleration and braking. The second circumstance, where the metrics are used to investigate allegations of inappropriate driving reported by a witness, is not part of the current dispute. I will not explore this part of the clause.

• [20] Clause 16.5 seems contrary to Clause 16.4 which specifies how the IVAMS data may be used. Clause 16.4 specifically links the use of the data to authorised investigations on reported incidents. Clause 16.5 indicates that the live data could be used for monitoring employee performance but that it is not to be the sole purpose. This is a departure from the reported incidents approach in clause 16.4 but does allow for some usage outside the framework set in clause 16.4.

• [21] Clause 16.6 reinforces that there must be a reported incident and that the data is shared between management and employee. Here, the words indicate that there is intended to be data provided to the leader and employee and once again says "the data must be relevant to the reported incident" reinforcing the objective of being able to use the data when there is an incident.

• [22] Clause 16.7 indicates that the data will be available for investigation in alignment with internal policies. The circumstances given are high range speeding, tampering events, repeated instances of exception reports within three months and "[w]here an investigation pertaining to the use of a Queensland Rail motor vehicle may be assisted by the provision of data from IVAMS".

• [23] At clause 16.7.2, there is a process of addressing infractions of the policy where an employee generates repeated exception reports which are a cause for concern within three months. Firstly, a conversation. If there are further repeated instances of exception reports, a further conversation is held. Following this, if another exception report occurs the process indicates that disciplinary action may occur. It also states if there are no further exception reports then there is a wiping of the slate and a reset is agreed.

• [24] Clause 16.8 and 16.9 discuss the introduction of IVAMS and a moratorium of six months and then the process of when disciplinary action for exception reports may commence.

• [25] Clause 16.10 states that Queensland Rail will undertake education and training where there is a pattern of concern in a work team - this could be a reference to an individual as it states 'in' a work team and not 'with' a work team. However, the clause does not describe a disciplinary process but rather education and training.

• [26] Clause 16.11 describes when an event "may" be deemed serious. There are four examples these are provided as examples however that list is not explicitly purported to be an extensive or exhaustive list.

• [27] Clause 16.12 provides examples of repeated instances would give rise to a reasonable concern. These include driving over the speed limit by 10 kilometres per hour for a minimum of ten seconds, continuous driving for more than 2 hours with no break and being over the speed limit by 15 kilometres per hour.

• [28] Use of the data for the purposes of undertaking education and training is expressly authorised by clause 16.10. I agree with the Respondent that a "pattern of concern" implies that the IVAMS data may be reviewed for educational purposes. The asset management team may review the data and provide recommendations for further education. I consider that the Respondent's proposed use of the data falls within the scope of what is contemplated by that clause and aligns with the express objectives of improving driver safety.

• [29] The Applicant's argument is that clause 16 conclusively states where the IVAMS data may be used. This is not consistent with clause 16.1 which clearly outlines that the system will be implemented through consultation. This implies that the full use of the system will be determined at a later date, subject to express prohibitions in clause 16. I consider that clause 16 is not ambiguous and it is not appropriate to rely on evidence of subjective intentions of the parties in bargaining to justify the Applicant's interpretation.

• [30] I consider that the Applicant's argument implicitly conflates sending an email to an employee with their harsh metrics score with performance management. In this case, sending an automated email to an employee to notify them they have been braking harshly is not performance management. The employee may ignore the email entirely if they wish to do so, with no consequences. The plain meaning of "performance management" implies that there is some kind of management of the employee. The Macquarie Dictionary definition of "management" states: "the act or manner of managing; handling, direction, or control". If there are no disciplinary consequences in relation to an employee's harsh braking, and the employee's manager does not even see the data as it does not form part of an exception report, then there is no requisite control or handling exerted over the employee. It is solely for the purposes of safety education.

• [31] The Respondent has made a sensible concession stating that harsh metrics will not be included in exception reports. It is clear that harsh metrics are intended to be used for feedback and education purposes and not discipline. Management will not have access to this data for the purposes of performance management. In fact, for management to access this data for that purpose would be in breach of the enterprise agreement.

• [32] Whilst I understand that the Applicant and employees may have a concern over the introduction of the technology into vehicles and the reporting capability, this functionality has been in common usage in the transport industry for many years.

• [33] The answer to the question is that, as the harsh metrics will not form part of exception reports, and as there is no limitation specified on how the harsh metrics may be communicated to employees, use of the data for via email or a portal for educative purposes is permissible. It is also permissible for the data to be used by the asset management team for the purposes of recommending driver education.

• [34] Accordingly, I find that the answers to the questions posed for arbitration are as follows:

On the proper construction of clause 16 of Queensland Rail Network Enterprise Agreement 2023, is the Respondent entitled to use In Vehicle Asset Management System (IVAMS) data, including 'harsh metrics' information, namely harsh braking, rapid acceleration and fast cornering in the manner contemplated in the Decision Notification pack, namely:

a) To provide employees with scores via email or through the driver portal

b) To provide advice to management that driver education is recommended.

[1] AMWU v Berri Pty Ltd [2017] FWCFB 3005.

[2] James Cook University v Ridd [2020] FCAFC 123 at [65].

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