A Brisbane-based civil engineering and contracting business has been fined $1.2 million after eight of its drivers committed 193 fatigue breaches in a 36 day period from 1 July 2020 to 6 August 2020.
The investigation and prosecution was conducted by the Queensland Department of Transport and Main Roads (DTMR). We understand that this was a significant investigation and took around 12 months for DTMR to obtain and work through the evidence, identify the breaches, draw up the offence charges and prepare the brief of evidence for the prosecution. With the massive fine obtained, DTMR will be considering this time spent.
What lead to the investigation?
On 6 August 2020, one of the business' trucks rolled due to a driver error. When conducting an investigation into the incident and its cause, DTMR identified potential problems with the business' fatigue management practices.
Whilst it was determined that fatigue was not a cause or contributing factor of the roll over, this resulted in an expanded investigation into the business' fatigue management practices.
What were the circumstances of the offending?
The business paid drivers based on the number of hours that they worked. It was observed by the Court that the rate of payment was 'generous'.
Perhaps understandably, the drivers sought to maximise their pay by maximising their driving hours.
Unfortunately, they did so with little to no regard for their work and rest hour limits that applied to the operation of these fatigue-regulated heavy vehicles.
So, what is a fatigue-regulated heavy vehicle? Any vehicle or combination with a gross vehicle mass (so maximum loaded mass) in excess of 12 tonnes.
To make matters worse, the business did little to nothing to oversee the drivers' working hours and ensure that they were not driving in excess of their permitted hours.
The drivers submitted weekly workbooks recording their hours and on which their pay was to be calculated. The Court observed that "even a cursory review of the hours worked by the drivers on a weekly basis shows significant concerns". However, apart from a few instances when the business adjusted the drivers' hours, the business paid the drivers for their hours worked, even when they were manifestly in excess of their permitted working hours.
So, not only did the business fail to identify the obvious working hours breaches and continue to permit its drivers to drive excess hours, but it paid the drivers regardless. In this way, it was suggested that the business was further incentivising, encouraging or rewarding the drivers' breaches, rather than discharging its primary safety duty to identify the risk of such breaches and to prevent them or mitigate their impacts.
DTMR identified 83 critical risk breaches, 15 severe risk breaches, 14 substantial risk breaches and 81 minor risk breaches in total, during the five week period that was the subject of the investigation.
What should the business have done?
From the reported circumstances of the case, we can infer that the business may not have had an appropriate policy and driver training program in relation to fatigue-management. Further to this, in rostering drivers to work when they were not permitted to, the business does not appear to have had or followed any working procedure around driver availability and rostering. As well as the business appears not to have had or followed any working procedure relating to checking driver hours for compliance and performance managing any drivers who exceeded their maximum working hours.
The business cooperated fully with the investigations and pleaded guilty to 37 offences, acknowledging that it had breached its primary safety duty and given rise to risks to the public.
The Court observed that the business had a 'moral and legal' obligation to properly manage its transport activities, which it clearly failed to do. The Court also found that the company had the opportunity to step in and identify and prevent further breaches, but failed to do so. Given the high degree of culpability assessed by the Court, the Court considered it appropriate to impose one of the highest fines for any CoR case.
It is reported that the business is considering lodging an appeal against the level of the fine.
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