Andrew Douglas: Okay, let’s get onto the main topic for the day, okay?

Nina Hoang: Yeah, interesting topic.

Andrew Douglas: The topic for the day really is when people use work assets, like cars, like trucks, what is a workplace for the purpose of safety law and for the purpose of all other law?

Now, we’re not going to go to a direct case on it. There has been some cases around it, because this is much more of a discussion. But the case that we want to talk about is DPP and Tuteru, which is that infamous incident where a truck driver killed four people when he was under the influence of drugs and he’s under the influence of drugs because he was fatigued. The organisation he worked for understood the level of fatigue within the organisation and of him.

Nina Hoang: And permitted him to-

Andrew Douglas: And permitted him to drive, yeah. So what happened is the DPP eventually started off with manslaughter charges, okay? And they withdrew those charges without explanation and then they proceeded under heavy vehicles legislation for breaches of duty. What the judge said at first instance made a number of assumptions at base that there was no evidence to support an industrial manslaughter claim. But the DPP had said nothing and the appeal court said, “Well, they don’t have to say anything and you’re not allowed to draw those assumptions.” I guess what I wanted to say is the difference between a manslaughter charge and industrial manslaughter is slightly different. This is a case where industrial manslaughter which has a lower threshold, could easily have been brought.

Nina Hoang: Oh yeah, definitely.

Andrew Douglas: Yeah. And I guess so the case is not entirely on all fours but when Nina and I talked about it, we said ’cause we’ve had this on a number of occasions where an employee is driving a truck or one they use.

Nina Hoang: Directly.

Andrew Douglas: Yeah, on the way to work. The question is, was it a workplace? And we felt quite confident. We said, look, both in workers’ compensation law or in safety law, it may be a worked-owned vehicle but it’s not in the course of work. However, for instance, if they were driving from there, they went home one night and then went to another work site, the next site, so in other words, they drove home on a Thursday night and on Friday morning they went to another workplace using the ute, there’s an argument because it’s driving to a different workplace that it would be for the purpose of work and under those circumstances the vehicle would be a workplace. And obviously, if it’s driving between jobs, yeah, it’s obviously a workplace, but most people don’t understand it. And yes, road traffic legislation in all states and territories says, look, it falls under that, but the workers’ compensation insurer can jump into it. That’s not the issue. We’re talking about safety law.

Nina Hoang: Hmm, oh, I think you do need to say though, journey claims are-

Andrew Douglas: ACT in Queensland.

Nina Hoang: ACT in Queensland. So travelling to and from work, if you get injured in those same territories, then it is compensable. But for the most part, it’s exactly what you said.

Andrew Douglas: Yeah, okay. So look, the reason I wanted to agitate is this. We, I think over the last two years, Nina and I probably dealt with half a dozen cases of people using work-owned vehicles for private purposes and also for work. And in all cases there were accidents, some involving other people, some single person accidents.

And I want to be clear that you need to have a policy that actually defines what is and what is not work, okay? Because if it’s incidental to work, in other words, if they use the vehicle because they need to do that for work, then I’m afraid under those circumstances, both under safety law and under workers’ compensation, it’s a breach. And that means things like being aware of someone’s fatigue levels, having rules around drugs and alcohol…

Nina Hoang: Making sure that they take sufficient breaks, if you’re going long distance driving for example.

Andrew Douglas: Yeah, and what we’ve seen repeatedly is that none of those processes sit in place. And up-to-date fortunately, the ones have been driving in circumstances which are not incidental to carrying out work duties, but they very easily could have been. And so, we’ve been able to defend each one on the basis that it’s not.

But when I look at all of our clients all of whom have people who have provided with work cars, work trucks that they take home, there is a huge risk. So a truck driver who comes and parks at night after coming from the depot then goes out to start work the next morning on a run, going out to start next work, coming home on the way, because it’s part of a continuous journey, it’s work.

It’s not just a journey claim in ACT and Queensland. It is compensable under workers’ comp and it is a workplace.

Can you just think about this? It is a huge issue. We’re going to agitate it again in the problem we’ve got that’s coming up. But I want people to be very clear that things like their FBT actually reflects the truth.

So an FBT, people using a vehicle will have a percentage which is private and there’ll be a percentage, which is for work. And you’ll pay FBT on the non-work-related stuff. There needs to be a degree of alignment and a better analysis of what’s going on, because when WorkSafe come, they’ll ask for that document.

Nina Hoang: Yeah, they will, which we’ve seen.

Andrew Douglas: Yep.

Nina Hoang: Yeah. And I think what we really want to make clear is while it is only a workplace, if it is connected to work the easiest way is just to have that clear policy and to have it very clear in your contracts. Recently, I’ve had situations where employees have been terminated and they’ve got a work vehicle and then it becomes messy in terms of what they’re paid out. So just having that documentation in place will protect you under safety workers’ comp.

Andrew Douglas: That’s a classic example, isn’t it? When someone says, look, you’ve got a work vehicle, you’re on $155,000. So you’re close to the high income threshold of 166 and you’ve got a work vehicle, part of which is for private purpose. Now the private purpose part can take that amount over the high income threshold and therefore prevent an unfair dismissal claim, big issue, okay?

Nina Hoang: Yeah.

Andrew Douglas: But more importantly, if it is part of a dedicated money then it is part of a use of person enjoys, then it also, when you are paying someone out is part of the compensation you are paying someone-

Nina Hoang: Yeah, and people often forget that. They think you just return the vehicle. Whereas you actually have to compensate them for the value, for the reduced value.

Andrew Douglas: And your contract can get around that if it’s properly crafted, okay? So if you make that as a discretionary benefit that a person receives, which in no way forms any part of any notice or compensation at determination of employment, you’re absolutely safe. But you don’t have that in your contract of employment you’re up for a bit more. All right, well let’s go and test what we’ve just talked about on the problem, okay? I think a shorter problem, ’cause I did it this morning, ’cause I’d forgotten about it, go.

Nina Hoang: Rocky was a work supervisor for Road Right Pty Ltd (RR). His job was to oversee roadworks carried out by RR for and on behalf of VicRoads and Councils throughout Victoria. Rocky had three jobs on the go. Part of the Ocean Road between Lorne and Apollo Bay, Western Freeway, just outside Rockbank and suburban works around Hobsons Bay Council.

Rocky drove from the Western Freeway site on Wednesday 5th July and arrived at the Mantra at Lorne at 6:30 p.m.. He was very tired, but had dinner with an engineering company at A La Grecque, at Airey’s Inlet that night. Ben from the Engineering Company picked him and others up to take them to dinner. Rocky drank much more than he thought. The dinner finished late around 11:30 p.m..

The next morning Rocky woke up feeling a little worse for wear. He jumped in his car and took off for work near Apollo Bay. Just outside Kennett River, a fox darted across in front of him, he swerved and drove over the edge of the road falling down a five-meter cliff into the sea below.

He survived the crash, was subsequently breathalysed by police at hospital and showed blood alcohol levels of 0.034 which meant it was likely he was over 0.05 at the time of the crash. He was certainly fatigued as he had been working 15-hour days, 7 days a week for the last few months.

Rocky suffered serious leg injuries requiring surgery. RR had no policies or process in place to manage driver fatigue or out of work conduct. Rocky was driving an RR-owned ute.

Nina Hoang: All right, well that sort of puts it squarely in place, doesn’t it? So the first question is, did RR breach its safety law and if so, how? So let’s go to, what the duties are. So did they do everything reasonably practical in providing a safe place of work? And was this a place, so first, was it a place of work? Yes, because he was driving to work. And through an intermediary station at the Mantra Hotel in Lorne. So definitely workplace, reasonably practical. Was there a hazard? Yes.

Nina Hoang: Yes, he was driving, is a high risk hazard.

Andrew Douglas: Yeah, he was affected by alcohol and he was fatigued. So there’s the hazard, the risks are high. What were the controls? Well, the answer is here’s a guy working roadworks and you would’ve thought they had an interlock or some method of dealing with or some method of testing or checking or making sure they’re educated about the risks of alcohol at least. And it’s period of time which to get out, ’cause everyone knows the roadwork civil engineering business is a big drinking, hard living place, okay? Fatigue is a massive issue. And they must have been aware of his level of fatigue. And again, no fatigue process in place.

Nina Hoang: And when we say aware, you don’t have to be aware by someone telling you. The fact that you’ve got their time records, that’s enough to impute awareness.

Andrew Douglas: Or even the fact that you know how hard they must be working given the nature of their work. So they’re in deep trouble. They’re certainly in trouble for breach of primary duty, okay?

Nina Hoang: Oh yeah.

Andrew Douglas: The issue is could fatigue and alcohol when driving a car create a risk of serious injury? Yes, it could. Were they indifferent to it? We just don’t have the evidence here as to that, okay? But the absence of policy puts ’em at risk, I wouldn’t say a high risk. Now if they did have evidence, evidence was led that they’d had prior accidents around fatigue or people using alcohol and driving then I’m afraid the officers and the organisation would be a high risk of reckless endangerment.

Nina Hoang: What if, on the flip-side they didn’t have a policy, but they had like an informal thing where you had to check in with your manager when you arrived at the hotel, right?

Andrew Douglas: Yeah, well, policies can be in writing or not in writing.

Nina Hoang: Yeah, but say he checks in with them and they say, “Look, I don’t think you should continue driving, don’t continue,” and he does that. So he displays their direction and has been negligent. Would that then go down that path, like you said?

Andrew Douglas: Yeah, I think, can I say at that stage it would be hard to show a breach of primary duty, because you’ve got a minimum viable product.

Nina Hoang: And you’ve done every… Have you done everything reasonably practicable?

Andrew Douglas: No, you haven’t done everything. But you have identified a hazard. You’ve determined the level of risk and you’ve intervened to prevent that risk becoming a reality. So you’ve got to control that is in place and it’s a low level control, but it is nonetheless a control, okay? I think they would’ve difficulty prosecuting. I’m not saying it isn’t a breach, I’m just saying they’d have difficulty, ’cause the evidence isn’t good for them and WorkSafe don’t prosecute unless they can win.

Nina Hoang: That’s true.

Andrew Douglas: Okay. If Rocky made a worker’s compensation claim, would he be successful? Now remember, he’s probably over 0.05 and let’s just say for the purpose of it that he was over, that he’s meant to be driving zero, zero. Okay, so he is a driver on the Road Safety Act, meant to be at zero zero, therefore he qualifies under Section 42, which means if he’s over zero zero and before 1.2 there’s 1/3 reduction in his compensation between 0.12 and 0.24, 2/3, and between 0.24 not between, 0.24 and over, not compensable, okay? But he must be convicted, but he must be convicted.

Nina Hoang: Oh, and so just testing is not enough.

Andrew Douglas: Not enough, okay? Because you can work backwards and show quite clearly he’s been tested four or five hours later. So he is probably around about 0.09 when he was driving, okay? The issue here is there’s no evidence that he was convicted. So there would be no reduction in his compensation for that purpose.

Nina Hoang: And it’s definitely a workers’ comp claim, because it’s connected to his points when he was driving-

Andrew Douglas: Yeah, for work. So yes, his claim would be accepted and there’d be no reduction as a result of the alcohol he’d been drinking. And his common law claim, which isn’t caught by that reduction, there may be contributory negligence for a, his choice to drive when he was fatigued, and b, his effective alcohol. So may be a 20 or 30% reduction on his common law claim.

Nina Hoang: Could you also press for reduction in premium, because he was negligent?

Andrew Douglas: No, they can’t. No, it doesn’t touch premium. Negligence, not a part. So as far as the premium goes you don’t reduce the premium by contribution. It’s either no negligence or negligence.

Nina Hoang: Yeah, but if he’s negligent by drinking and driving.

Andrew Douglas: But there’s a demonstrated negligence by them in failing…

Nina Hoang: Ah, I understand. So negligence or no negligence by the employer. Gotcha, right.

Andrew Douglas: Okay?

Nina Hoang: Yeah.

Andrew Douglas: So interesting case. Let’s come on, we’ve got more to go.

Nina Hoang: If they sought to terminate Rocky’s employment for being over 0.05 when driving a work vehicle would Rocky have a good unfair dismissal claim?

Andrew Douglas: So there you go.

Nina Hoang: Why would he have a good unfair dismissal claim?

Andrew Douglas: All right, if they sought to terminate Rocky’s employment ’cause he is over 0.05.

Nina Hoang: Yeah, so if he’s breached, what he’s supposed to… Oh, I guess that you’d go back to the alcohol and drug policy.

Andrew Douglas: Yeah, so you’d have it. So can I just say at this stage, no alcohol and drug, no method of checking in. So would it be a valid dismissal? Yes, it would be.

Nina Hoang: Yes, valid reason.

Andrew Douglas: Would it be reasonable, so it goes to reasonable? No it wouldn’t, because you didn’t have any proper directions in place around it. You didn’t have any education about the after effects. Now if he’d been drinking when he got in the car-

Nina Hoang: Oh yeah.

Andrew Douglas: Dead duck, okay? But this is from the night before, a fatigued person who’s not actually going to metabolise alcohol as quickly, because he’s so fatigued, he’s going to have a good unfair dismissal claim, he’d win.

Nina Hoang: On the basis of harshness, not on the fact that reasonable, sorry, not on the fact that there’s not a valid reason.

Andrew Douglas: Yeah, so valid reason, but it’s not reasonable and it would be harsh. So there’s two basis upon which he’d do it. How should Don proceed and what are the risks?

Nina Hoang: Well, he needs to manage him for his misconduct.

Andrew Douglas: I don’t even know who Don is.

Nina Hoang: It’s his manager. Sometimes it happens like that when I’m like, “Oh, there’s too many people in the case now.”

Andrew Douglas: Okay, well there’s only Don and Don is his manager. So, and I think I wrote this so I’m going to have to introduce a little bit of extra, this is before the incident arose. So what should Don do as a manager to manage people who are on the road who are fatigued?

Nina Hoang: Oh right, okay? Well, he needs to introduce a policy. I thought he meant now, is to manage him now.

Andrew Douglas: No, too late. He’s got a broken leg. All he’d do is tell him to use crutches. No, I mean beforehand.

Nina Hoang: Yeah, but I think you still can manage someone even if they’re injured. He just can’t terminate him.

Andrew Douglas: No, okay. But my intention is different.

Nina Hoang: Well, he should introduce an alcohol and drug policy. He should introduce a clear remote work policy including risk about fatigue as well.

Andrew Douglas: He’d have to educate. So one of the things about drugs and alcohol is this, you’ve actually got to tell people what are the effects of alcohol and how long it takes to get out of your system, because there wouldn’t be too many Friday nights that I don’t go and have a drink with clients and I’m up very early in the morning going to the gym. But I know the calculation, I know what it is and I’m quite careful around it.

But not many people know that. And so, many people would not know they’re at risk when they drive in the morning. And that’s why the police around Christmas time, you’ll notice they’re sitting on major arteries out of town at six in the morning, ’cause people have gone to sleep in their car and they, “I’m good now,” but in fact they’re still heavily intoxicated. So there’s a lot that Don needs to do. But the most important thing is he needs the minimum viable product. He has to have all those things, make sure that this guy who’s named now escapes me, understands what the rules are.

Nina Hoang: Yeah, they have to be trained in it.

Andrew Douglas: Competent in it and then he is got to keep checking in on him.

Nina Hoang: And he has to also enforce it, because if you’ve got the perfect policy and says, we have zero tolerance for alcohol, yet you know everyone is engaging it, you are going to be in the exact same position. And it’s going to be win for unfair dismissal claims.

Andrew Douglas: All right, so look, we’ve got some interesting stuff there. And it shows how in workplace law, other bits of legislation come into effect like the road safety legislation to find something. So we’ve got to be really clear about what we do accept and what is the nature of the industry we’re in as to what is the level of alcohol use that can be had.

But please create policies, process and education so that people don’t get hurt. Because had the right thing occurred here Rocky wouldn’t have driven. That’s the truth, Rocky wouldn’t have driven, but Rocky did drive, ’cause Rocky felt he was safe.

Nina Hoang: Can remember his name now.

Andrew Douglas: I did. Yeah, I don’t know, I think it’s ’cause I looked down here and saw it. I did write it at 8:30 this morning. Now I’m going to polish my head and shoot off into another room now. But thanks very much. Let’s show us some thumbs up, ’cause we really enjoyed being here today and we’ll see you later. Bye-bye.

Nina Hoang: Bye.