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Increased penalties designed to make offending ‘unprofitable’

February 19, 2018

In a CoR-related case, a decision by WorkSafe to appeal a penalty given to a trucking company in December 2016 has cost the company considerably more financially.

A West Australian Magistrates Court found Cleveland Freightlines Pty Ltd guilty of nine charges of failing to ensure records were kept of the work time, breaks and non-work time of nine commercial vehicle drivers.

The company was also found guilty of six charges of failing to ensure that a commercial vehicle driver – who drove without a relief driver – did not drive for more than 17 hours without at least seven consecutive hours of non-work time.

The company received global fines of $9,000 for the nine record-keeping offences and $18,000 for the six driving hours offences.

‘Manifestly inadequate’

But WorkSafe WA appealed the level of the penalty, and in the Supreme Court this month Justice Fiannaca concluded that the original fines were “manifestly inadequate” and increased the fines to $30,000 and $28,000 respectively and awarded the State $3,000 in costs.

He said that the original fines were not “punishment of a kind that could be expected to have a meaningful impact on corporate behaviour and commercial practices to ensure compliance with the Regulations.”

Justice Fiannaca’s reasons emphasised that the risk of fatigue in long-haul drives, especially from Adelaide to Perth, was significant and that the fines imposed needed to make offending “unprofitable”.

WorkSafe WA Commissioner Ian Munns said he doubted the original penalty would have provided a high level of deterrence to other potential offenders.

Pleased with tougher penalty

“We’re pleased with the Supreme Court’s decision to set aside the original penalty and impose a considerably higher fine,” Mr Munns said.

“There’s very little deterrence value in a low level fine – the company will simply pay the fine and move on and the serious risks to road safety will remain.”

WA’s Road Safety Council agreed with WorkSafe’s concerns about commercial vehicle drivers who did not take adequate rest or non-work breaks.

“Fatigue remains the silent killer on our roads, and it can affect anyone behind the wheel, day or night,” said Acting Road Safety Commissioner, Iain Cameron.

“I would encourage companies to ensure that the safety of their employees and other road users is a priority in planning their work practices, policies and procedures.”

Net is closing

As you can see, operators who flout the fatigue laws in this country run the risk of receiving penalties designed to deter themselves and others for breaching their Chain of Responsibility (CoR) obligations and putting drivers and other road-users at risk.

And under CoR laws, any party in the supply who encourages drivers to speed or drive while fatigued – through scheduling or unrealistic deadlines – will also be liable for penalties handed out by the courts.

If you don’t have the right policies in place that address fatigue and speeding, along with vehicle mass and load restraint (and soon, maintenance), you will appear in the crosshairs of the regulators – sooner or later.

Don’t wait to be penalised for not doing all you can, reasonably, to abide by the CoR laws.

Subscribe to CoR Adviser today. Written in plain English by the transport law experts at Holding Redlich, the monthly newsletter has all the information you need to ensure your company is compliant and meeting its obligations.

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