In a recent case in Queensland a contracting company has entered a guilty plea to 37 charges of contravening section 26H Category 3 offence of the Heavy Vehicle National Law (HVNL) because it failed to meet the safety duty imposed by section 26C Primary duty of the HVNL.

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Business has to pay a $1.2 mil fine. It is important to note that neither the drivers nor executive officers of the company were sentenced in the case. Further, the breaches of the drivers are not the basis upon which the company was sentenced. 

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The company’s duty was to ensure the safety of its transport activities by not encouraging the drivers to work excessive hours in breach of the driver’s work and rest option and take reasonably practicable steps to eliminate or minimise a public risk by ensuring that the drivers did not exceed their maximum hours.

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For context, eight of the company’s drivers committed fatigue regulated breaches during a five week period with a total of 83 critical, 15 severe, 14 substantial, and 81 minor risk breaches.

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Causing or encouraging the drivers to contravene HVNL

Part of the primary duty obligation is to ensure that your behaviour does not directly or indirectly cause or encourage the driver of the heavy vehicle to contravene with HVNL. In this case, the company paid its drivers a generous hourly rate and unsurprisingly the drivers sought to maximise their income. In doing so they paid little regard to their obligations under the HVNL as drivers of fatigue-regulated heavy vehicles. 

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The drivers submitted weekly workbooks as the basis of their hourly pay claims. Even a cursory review of the hours “worked” by the drivers on a weekly basis should have raised significant concerns. Instead of stepping in to end the drivers' breaching behaviours, the company paid them substantially - although not entirely - in accordance with their claims.  In doing so business has been held to have encouraged the drivers to continue to disregard their fatigue obligations.

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Culpability of the company

Paying the drivers as described above is relevant to the culpability of the company in that the company had an obligation to be proactive in avoiding circumstances where drivers did not comply with the fatigue regulations to increase their take home pay.  As the opportunity and temptation to the drivers was obvious, the company needed to be diligent in overseeing the obvious risk. 

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Of the 40 weekly worksheets submitted by the drivers over the period 31 were modified by the company’s officers after going back to the drivers about their claims. The modified worksheets that form the basis of the relevant charges therefore confirm the defendant was fully aware of the driver's offending conduct. Section 26C Primary duty gave the company a positive duty to prevent these breaches, as the company needed to be proactive in avoiding circumstances that were likely to cause breaches.

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Risk assessments often miss the mark

We see lots of risk assessments that miss the mark in the way that they are constructed. Whilst they may have risks associated with fatigue and compliance in mind they often look at the outcomes and not the causes of behaviours that lead to those outcomes.

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When undertaking risk assessments we should be looking at the tasks that are being undertaken, assessing how much control and influence we have (or should have) over those tasks and if our behaviour is likely to cause a safe / compliant outcome. Our resources should be directed first to the things that we control and also ensuring that we are not inhibiting others from complying through our actions and proactively supporting them to be safe and compliant.

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We encourage risk assessments to include business practices associated with the use of a heavy vehicle on a road, including the companies:

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• operating policies and procedures
• human resource and contract management arrangements (pay, training, induction, supervision etc.)
• arrangements for preventing or minimising public risks associated with the practices

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Business practices are where a company has the most control and influence so starting with them and assessing the associated risks makes a lot of sense to us.

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