What are my legal obligations relating to fleet safety and driver training?

The legal obligations of employers providing company vehicles is regarded by some as a can of worms best left unopened. However, the legal web has been spun and the trap is now set following a case in the Melbourne County Court in 1999.

Don Watson Trucking pleaded guilty to failing to provide a safe system of work and was fined $12,000 on the 11th August 1999. The court was told that drivers working for Don Watson had taken amphetamines to stay awake, and were regularly speeding to keep their job.

In passing sentence Judge John Hassett sounded an important public warning:

"Quite apart from any other considerations, the penalty which would be imposed now upon somebody who committed offences such as those with which I am concerned would be very, very much greater than the sentence which I will properly impose upon the company and you, Mr Gage. Current offences would be more severely dealt with, not only because of that very marked increase in the maximum penalties, ($40,000 - $250,000 for a company) but also because of the increased awareness in the course of the last five years in the community about occupational health and safety issues and, in particular, the steps that can and must be taken to provide a safe work environment".

Judge John Hassett also fined the company operations manager $3,000 without recording a conviction after he pleaded guilty failing to take reasonable care for the health and safety of himself and other employees.

It is essential companies are pro-active rather than reactive in managing OH&S issues. Identify what the risks are, what is the probability of an event occurring and develop strategies to manage, control or eliminate this risk.

With 49% of all workplace fatalities occurring on the roads, the issue of fleet safety is a genuine OH&S issue. Both fleet and OH&S departments need to be united in their approach to the introduction of countermeasures.

A review of the Victorian Occupational Health and Safety Act 1985 identifies some key issues with application to the provision of vehicles and the education of drivers. It states:
  1. An employer shall provide and maintain so far as is practicable for employees a working environment that is safe and without risk to health.

  2. Without in any way limiting the generality of subsection (1), an employer contravenes that subsection if the employer fails -

      (a) to provide and maintain plant and systems of work that are so far as practicable safe and without risk to health;

      (b) to make arrangements for ensuring so far as practicable safety and absence of risks to health in connection with the use, handling, storage and transport of plant and substances;

      (c) to maintain so far as is practicable any workplace under the control and management of the employer in a condition that is safe and without risk to health;

      (d) to provide adequate facilities for the welfare of employees at any workplace under the control and management of the employer; or

      (e) to provide such information, instruction, training and supervision to employ`ees as are necessary to enable the employees to perform their work in a manner that is safe and without risks to health.

    The act defines practicable as having regard to:

      (a) The severity of the hazard or risk in question;

      (b) The state of knowledge about that hazard or risk and any ways of removing or mitigating that hazard or risk:

      (c) The availability or suitability of ways to remove or mitigate that hazard or risk; and

      (d) The cost of removing or mitigating that hazard or risk.

Is the car considered part of the workplace?

The general consensus is that vehicles being driven in the course of a person's employment are considered as part of the workplace.

Does this mean you have an obligation to purchase the safest vehicle available and then equip it with options such as ABS, airbags, traction control etc?

Whilst I am certain we would all like to justify purchasing the top of the range BMW, if we are planning to use the OH&S act as a lever, we're sadly out of luck. Employers are required to provide as far as practicable a safe working environment. Unfortunately the top of the range BMW would not be construed as practicable. Which poses the question "what is"?

Providing the vehicle is compliant with Australian Standards, Australian Design Rules (ADR's) and is roadworthy, it is likely that an employer would have satisfied their legal obligation. However, it is highly recommended that a vehicle selection policy demonstrates a commitment to purchasing safe vehicles.

Where options such as airbags and ABS are deemed financially prohibitive, it is recommended the reasons for this decision be documented. This demonstrates that such options have at least been considered and decisions have been made based on cost or other influencing factors.

If a staff member drives their own private vehicle for business purposes, does the employer have any responsibility?

Yes, simply because an employee is driving a privately owned vehicle does not divulge responsibility and duty of care to the employee. Employers are required to make every effort to ensure the employee's vehicle is in roadworthy condition.

This may be achieved by requesting the employee sign a form confirming that their car is registered, roadworthy and comprehensively insured. It would also be worth asking for a copy of their recent service history or a photocopy of the appropriate page from their service book. This naturally must be done before they undertake any driving for business purposes.

What if a car has brake failure as a result of not being serviced?

It is the responsibility of the employer to have the systems in place to ensure vehicles are serviced and maintained at regular intervals. If an employee was involved in a collision either during or outside business hours in a poorly maintained or unroadworthy vehicle, there may be grounds for prosecution.

Am I required to provide driver training to people who drive company vehicles?

If an employee has their drivers licence, it is reasonable to presume that they are suitably qualified to drive on the roads. However, in circumstances where an employee is required to drive in unfamiliar environments, or in unfamiliar vehicles (such as a four-wheel drive in snow), it would be expected the employer would provide the necessary training.

Notwithstanding the legal obligation of the employer, appropriate driver training can be an effective countermeasure. In fact, not only can driver training enhance the safety of your staff on the roads; it can simultaneously reduce your organisations motor vehicle operating costs.

How do I manage the issues of speed, fatigue,
mobile telephones etc?

The development of policies and procedures must formalise what is expected of employees. Staff must be encouraged to choose a safe behaviour, in an environment where often attractive but more dangerous alternatives exist.

For example, a fatigue policy would explain the risks associated with fatigue, the strategies employees can use to avoid fatigue, the choices they are encouraged to make if they feel fatigued and managements responsibility to support employees avoiding fatigue. Similar policies should be prepared for speed, alcohol and drugs, loose items, smoking, first aid and mobile telephones.

Please note the information provided in this section is based on legal advice from various sources, it has also been reviewed and approved by the Victorian Workcover Authority. However, it is recommended that where confusion exists, companies should seek independent professional advice.