Employees driving for work What legal issues can

Employees driving for work What legal issues can arise Kate Thomson Lawyer 20 May 2015 34615565 v 1 1

Employer responsibilities ■ Workplace Health and Safety Act 2011 (NSW) □ Section 8 – definition of a ‘workplace’ – section 8(1): ‘place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work’ – section 8(2): ‘place’ includes ‘a vehicle, vessel, aircraft or other mobile structure’ 34615565 v 1 2

Employer responsibilities ■ Workplace Health and Safety Act 2011 (NSW) □ Section 19(1) – primary duty of care – ‘A person conducting a business or undertaking (PCBU) must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. ’ □ Section 19(2) – primary duty of care – ‘A PCBU must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. ’ 34615565 v 1 3

Employer responsibilities ■ Workplace Health and Safety Act 2011 (NSW) □ Section 18 – ‘reasonably practicable’ – ‘…that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters’ – What are relevant matters? • the likelihood of the hazard or the risk concerned occurring • the degree of harm that might result from the hazard or the risk • what the person concerned knows, or ought reasonably to know, about » the hazard or the risk » ways of eliminating or minimising the risk • the availability and suitability of ways to eliminate or minimise the risk • after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk 34615565 v 1 4

Employer responsibilities ■ Practical examples of discharge of duty □ Ensuring drivers have appropriate licenses □ Consulting about vehicle selection □ Ensuring vehicles are fitted with appropriate safety features □ Ensuring proper maintenance of vehicles □ Train, supervise and instruct employees (especially in relation to job-specific hazards e. g. driving on unsealed roads) □ Developing and enforcing policies and procedures 34615565 v 1 5

Employee responsibilities ■ Workplace Health and Safety Act 2011 (NSW) □ Section 7 – definition of ‘worker’ – Someone who carries out work in any capacity for a PCBU, including work as • an employee • a contractor or subcontractor • an employee of a labour hire company who has been assigned to work in the person’s business or undertaking • an outworker • an apprentice or trainee • a student gaining work experience • a volunteer • a person of a prescribed class 34615565 v 1 6

Employee responsibilities ■ Workplace Health and Safety Act 2011 (NSW) □ Section 28 – duties of workers – While at work, a worker must • take reasonable care for his or her own health and safety • take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons • comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act • co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers 34615565 v 1 7

Employee responsibilities ■ Practical examples on how to discharge duties □ Avoid risk-taking behaviours □ Avoid placing him or herself or others in danger □ Operate vehicle safely □ Adhere to employer’s policies and procedures ■ Australian Road Rules □ An employee who is driving has the same obligations under the road rules as they do in a private capacity 34615565 v 1 8

Motor vehicle accidents □ Work-related road crashes represent almost half of all occupational fatalities in Australia □ Work-related road fatalities represent 13% of the national road toll □ Work-related crashes cost $1. 5 billion annually □ Work-related crash injuries cost approx. $500 million annually Traffic injuries are twice as likely to result in death or permanent disability than other workplace accidents. Source: Centre for Accident Research & Road Safety 34615565 v 1 9

Motor vehicle accidents ■ Advising clients who drive for work or have been involved in a work-related accident □ First question – is the person an employee or an independent contractor? [Insert quote or important message] – ‘Results test’ • Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 • Hollis v Vabu Pty Ltd [2001] HCA 44 34615565 v 1 10

Motor vehicle accidents ■ Workers Compensation Act 1987 □ Section 9(1) - A worker who has received an injury (and, in the case of the death of the - worker, his or her dependents) shall receive compensation from the worker’s employer in accordance with this Act Compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment 34615565 v 1 11

Motor vehicle accidents ■ Workers Compensation Act 1987 □ Section 10 – journey claims – Injuries received during journeys covered by this section are compensable (except where attributable to the serious and wilful misconduct of the worker e. g. under the influence of alcohol or other drug) – Usually will not apply if the journey was interrupted or there was a deviation – Journeys which are covered • place of abode → place of employment • place of abode/place of employment → educational institution • place of abode/place of employment → any other place where purpose is to get a medical certificate or medical advice/attention/treatment • place of abode/place of employment → any other place where purpose is consultation, examination or prescription for the purpose of repairing/replacing crutches, artificial members, eyes or teeth, other artificial aids, or spectacles damaged in a workplace accident • camp/temporary residence for employment purposes → place of abode • place of abode → place of pick-up • place of abode → place of employment to receive payment of wages 34615565 v 1 12

Motor vehicle accidents ■ Workers Compensation Act 1987 □ Section 10 – journey claims – A journey which is to or from the worker’s place of abode is only covered if there is a ‘real and substantial connection between the employment and the accident or incident out of which the personal injury arose’ – A ray of hope? Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden [2014] NSWWCCPD 13 – Namoi Cotton Co-Operative Ltd v Stephen Easterman (as administrator of the estate of Zara Lee Easterman [2015] NSWWCCPD 29 – Exempt workers: police officers, paramedics, fire fighters, volunteer bush fire fighters and emergency services volunteers 34615565 v 1 13

Motor vehicle accidents ■ Work. Cover Independent Review Office (WIRO) ■ Workers compensation insurers and at-fault drivers □ If other driver is at fault – insurer can seek to recover under s 151 Z □ Employer does not get benefit of any recovery when it comes to premiums ■ Compulsory third party insurance □ An employee injured on their way to/from work may be entitled to claim under the CTP scheme (depending on the circumstances of the accident) 34615565 v 1 14

Motor vehicle accidents ■ Vicarious liability of employers □ Liability will depend on whether an employee is using a work vehicle for a workrelated purpose or for an unauthorised purpose □ Will also depend on whether an employee has engaged in ‘serious or wilful misconduct’ – See: Blake v JR Perry Nominees Pty Ltd [2012] VSCA 122 □ A third party involved in an accident with an employee may be able to make a claim against the employee and the employer 34615565 v 1 15

Motor vehicle accidents ■ Independent contractors – liability for damage □ Will usually be responsible for any damage caused as a result of an at-fault accident □ Driving a vehicle owned by the person to whom they are contracted – may be able to claim that the other party is liable ■ Employees – liability for damage □ Employee driving own car or driving employer’s car – vicarious liability □ At-fault employee using the car in an unauthorised way may be required to pay for damage caused to the vehicle 34615565 v 1 16

Traffic offences ■ Road Transport Act 2013 □ Penalties for company-owned vehicles committing camera recorded offences are five times that issued to individuals □ Section 186 – duty to inform if person not driver of vehicle committing camera recorded offence □ Section 187 – when responsible person for vehicle not liable for camera recorded offence □ Section 188 – offences relating to nominations 34615565 v 1 17

Traffic offences ■ Employee liability □ Employees nominated under section 186 will receive any demerit points associated with an offence, but may not be required to pay a fine (depending on the generosity of the employer) □ As an employer cannot authorise a driver to commit offences (e. g. speeding), they cannot assume liability for the offence – See however Australian Road Rule 304 34615565 v 1 18

Monitoring devices ■ GPS tracking devices □ May be considered covert surveillance under Workplace Surveillance Act unless notification requirements are observed - written notice to employees at least 14 days prior to commencement (unlesser period is agreed by employee) or before an employee commences employment indicate the kind of surveillance (i. e. for GPS tracking purposes), how it will be carried out, start date, continuous or intermittent, for a specific period of ongoing there must be a notice clearly visible on the vehicle in question indicating it is under surveillance □ Must only be used to monitor an employee while they are ‘at work’ 34615565 v 1 19

Contact Kate Thomson Lawyer T +61 2 4924 8917 E kthomson@mccullough. com. au Jeremy Kennedy Partner T +61 2 4924 8909 E jkennedy@mccullough. com. au Disclaimer: This presentation covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. This presentation is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this presentation. 34615565 v 1 20