Driver health and safety is an important factor in supporting the safety of Australians who use the roads. Driver fitness requires good vision, physical and mental health and ability, and cognitive capacity to undertake the complex task of driving a motor vehicle safely.
Businesses should be aware of their obligations both at law and under their insurance policy(s) to ensure their drivers are fit to be behind the wheel.
Statutory requirements
Under the Heavy Vehicle National Law (HVNL) everyone who works with heavy vehicles, including businesses which own a vehicle, or those simply employing drivers, have a primary duty of care to ensure, so far as is reasonably practicable, the safety of their transport activities and associated hazards.
This duty includes an obligation to eliminate or minimise public risks, as well as a prohibition against directly or indirectly causing or encouraging a driver or any other party in the Chain of Responsibility, to contravene the HVNL for example, by offering financial incentives or giving preferential treatment.
It should be noted that Chain of Responsibility parties and their executives remain a Chain of Responsibility party irrespective of whether they contract or subcontract their transport activities to someone else.
What are the legal consequences?
If a court finds an individual or a company (including its executives) guilty of a breach, depending on the seriousness of the offence, an individual may face up to a $300,000 penalty or five years in prison. Other penalties include education and improvement notices.
It is important to understand that the primary duty of the HVNL is based on a positive duty to ensure safety. This means that a Chain of Responsibility party can be prosecuted for a breach if that party does not take proactive steps to perform its duty, even if no incident or crash occurs.
What is fitness to work and why is it important for drivers?
Fitness to work means an employee is physically, mentally and emotionally able to carry out their work in a manner that does not endanger the health and safety of themselves or others. Being fit to work is much more than not being impaired by fatigue or by alcohol or other drugs. When considering if someone is fit to work you need to consider their behaviour, knowledge, experience, training, safety awareness, and their mental and physical wellbeing.
Unfit employees present a significant safety risk to themselves, other members of staff, the public, and can impact the safety of a business’s transport activities. The HVNL primary duty requires Chain of Responsibility parties to eliminate public risk and where this is not possible, minimise the risk so far as is reasonably practicable. In the case of fitness to work, this may include:
- Identifying risks associated with fatigue.
- Training staff to understand the risks of fatigue and what to look out for.
- Ensuring records are kept which show driver activity including driving time and rest time.
- Speed limiters are fitted and operational.
- Crash avoidance technologies are installed such as an Electronic Stability Control or Electronic Braking System.
- Vehicles are fitted with comfortable sleeping berths to enable drivers to rest when needed.
It is essential that every individual is fit to safely carry out their duties when they commence work and remain fit throughout the duration of their shift.
Insurance requirements
In addition to the above statutory requirements, many insurance policies contain the following conditions:
Reasonable Care
Typically this is at the business’ own expense and requires that the business and any person acting on the business’ behalf must exercise reasonable care and take precautions and use all due diligence to:
1. Prevent:
a. Loss or damage to and ensure the safety and security of any item or thing which is the subject of the cover provided under the insurance policy.
b. Personal injury or damage to property.
2. Employ only competent employees.
3. Comply with all statutory obligations and by-laws or regulations and recognised standards imposed by any public authority.
4. Implement safe work practices.
5. Maintain any plant, motor vehicle and any other equipment and ensure this remains in good working order and condition.
Risk management
To ensure compliance with obligations under the HVNR, Bellrock recommends businesses require staff, contractors or sub-contractors to undertake regular medical assessments to identify any issues which may impact an individual’s fitness to work and ensure the potential for breach of obligations under HVNR or the breach of insurance conditions is minimised.
