Safety Collison: The meeting of work health and safety and national heavy vehicle laws - liability of directors, senior management and PCBU's

In brief: 

The Work Health and Safety Act and Regulations in most jurisdictions around Australia have implemented the requirement for each business to assess the risk of psychosocial hazards and implement reasonably practicable control measures to eliminate or minimise the risk of the health and safety of workers, so far as is reasonably practicable. 

Background

This requirement identifies that each person conducting the business or undertaking (PCBU) is required to assess, identify and manage the psychosocial hazards arising from the work. The psychosocial hazards to be assessed are:

1. the design or management of work;

2. work environment;

3. plant at a workplace; and

4. workplace interactions or behaviours. 

Once those hazards have been assessed then reasonably practicable steps must be implemented to either eliminate the risk of the psychosocial hazard or minimise the risk so far as reasonably practicable.
 
Within the transport industry in Australia, the management of work loads and workplace interactions and behaviours have been a continuous matter of concern by Transport and Safety Regulators, regarding safety on Australian roads, for truck drivers, other drivers, road users and pedestrians.

The National Heavy Vehicle Regulator has recently prosecuted a number of heavy vehicle drivers and transport companies for failures to manage fatigue when drivers are operating heavy vehicles. 
Further to this, the courts have also issued supervision orders upon drivers and companies. 

In the Goulburn Magistrates Court on 7 July this year a vehicle consisting of a prime mover towing a trailer was inspected at an authorised inspection station. The assessed mass of the vehicles third axle exceeded its allowable mass limit equalling 124% of the maximum permitted mass. The defendant company had a history of offending which involved exceeding permitted mass limits dating back to 2015 and faced a maximum penalty of $70,000. 

The company entered a plea of guilty to the section 96 breach of the Heavy Vehicle National Laws, received a fine of $2,250 and were ordered to undergo a supervisory intervention order for six months. The court order required that directors, senior management and responsible persons for the operations of heavy vehicles, be required to undergo training pertaining to mass and safety.

At the Liverpool Local Court on 22 January 2023 a company was convicted for mass breaches and defects to heavy vehicles. It was alleged that between 3 July 2020 and 22 October 2021 the vehicles operated by the company were:

1. Involved in 20 individual mass breaches summarised as:

(a) 7 Minor Risk Breaches;

(b) 12 Substantial Risk Breaches; and

(c) 1 severe risk breach; and

2. Received 94 defect notices ranging from self-clearing, minor and major defects.

The court convicted the company of breaches of section 26(c) and 26(h) of the Heavy Vehicle National Laws Offence and imposed fines totalling $112,500. 

The court ordered the following supervision intervention order, for 12 months, requiring that the company:

1. appoint a compliance officer to monitor the company’s activities and report to the Directors and National Heavy Vehicle Regulator every 90 days;

2. appoint a Heavy Vehicle National Law consultant to conduct an audit of the company’s practices and procedures, and the company is to implement all recommendations;

3. undertake training of relevant staff;

4. instruct the consultant to undertake an induction program for each new staff member; 

5. have a supervisor at each worksite to ensure compliance with the company’s obligations under the law;

6. fit all vehicles with onboard mass devices for each axle group and undertake calibration and testing every 6 months;

7. ensure all scheduled servicing is carried out by a qualified mechanic and keep service records; and

8. inspect each heavy vehicle and combination every 4 months.

On 17 August 2023 at the Lithgow Local Court a driver of a heavy vehicle was found to have continued to drive for one hour after the end of a 24 hour period where he had worked for 14 hours and 30 minutes straight. He was convicted and fined $4,000 and ordered to undergo a supervision intervention order and complete training for fatigue management systems and must purchase and use an electronic work diary.

Work Health and Safety meets Heavy Vehicle Safety Laws

Where heavy vehicle truck drivers are working hours which exceed the fatigue requirements, the breaches expose the company or PCBU, its directors, officers and responsible persons, to breaches of the work health and safety laws. 

If a serious heavy vehicle collision occurred on Australian roads, where it was found that the heavy vehicle driver had exceeded the fatigue requirements, which can be causally linked to the failure to identify and manage the psychosocial hazard of the management of work, then the PCBU and its directors and officers are exposed to breaches of the work health and safety laws. These breaches could be prosecuted as negligent or reckless conduct pursuant to section 31 of the WHS Laws.

The maximum penalty presently for section 31 for companies is $3 million and officers of 5 years imprisonment. If an offence of industrial manslaughter is pursued, then a person will face a maximum penalty of 20 years imprisonment. 

Federal Industrial Relations changes

The Federal Government of Australia has recently introduced a bill to increase the level of fines and imprisonment for breaches of industrial manslaughter and reckless conduct under the Commonwealth work health and safety laws.

In the "closing loopholes bill" being introduced into the Federal parliament, it is proposed that individuals will face a maximum penalty of 25 years imprisonment if convicted of industrial manslaughter and a PCBU will face fines of up to $18 million. The monetary penalties for category 1 offences for reckless or criminally negligent conduct, are also being increased from 5 years to 15 years, together with the penalty for a PCBU, from $3 million to $15 million. 

It is expected that each State and Territory in Australia will amend their Work Health and Safety Laws to implement the new penalties to be consistent with the Commonwealth WHS Act.

It is only a matter of time until the work health and safety regulators in each jurisdiction around Australia commence investigations and prosecutions for fatigue and unsafe operations of heavy vehicles under the work health and safety laws.