$1.2 Million fine for encouraging drivers to drive whilst fatigued

It is rare that I publish decisions from the state of Queensland regarding transport or WHS, despite NRWHS also operating in Queensland.

The reason for this is that Queensland WHS and Transport crimes are almost always heard in the Magistrates Court and unless a case sets precedent or is of significant public interest, rarely are such low court decisions published by the Department of Justice.

But in the matter of Department of Transport and Main Roads v NM & AA Foley Contracting Pty Ltd [2023] QMC 5 we have an interesting case which should serve as a warning shot for Transport companies that fall under NHVR (National Heavy Vehicle Regulator) jurisdiction (all but WA and NT based companies). A total of eight of the company’s truck drivers committed a large number of fatigue regulated breaches during a five week period from 1 July, 2020 to 6 August, 2020.

The defendant’s duty was to ensure the safety of its transport operations by not encouraging the drivers to work excessive hours in breach of the fatigue regulated hours (applicable to each driver) and failing to eliminate or minimise a public risk by taking reasonably practicable steps to ensure a driver did not exceed the maximum hours to be worked as a solo driver.

The defendants criminal offending was only exposed through a seemingly unrelated matter - a truck rollover at the Port of Townsville. This is a significant incident and will almost certainly result in WHS investigations (Government and Private) as well as NHVR investigations (if the vehicle is a fatigue-regulated heavy vehicle). It is perhaps fortunate given the large number of breaches which involve the drivers driving on public roads that the offences were discovered in this way rather than through something more tragic or fatal.

Now usually what I have huge problems with personally and as a WHS Professional are 'per kilometer rates'. This is usually $0.50 - $0.75/km. Under this scheme a driver going between Sydney and Brisbane via the New England Highway can hypothetically earn $481.50 to $722.25 in the day. Realistically however, the driver will experience significant delays leaving Sydney and entering Brisbane which could be hours depending on time. Additionally roadworks, police stops and weighbridge inspections all count as work time and the driver is not compensated for it. This more often than not leads to drivers 'making up the difference' and driving hours longer than they should be.

To my surprise, none of those elements were present. The drivers were paid a generous hourly rate by the defendant however they were paid based on their logbook sheets (standard hours allow up to 12 hours of driving in a 24 hour period, so 12 hours per day). This meant that they weren't being paid for the 60 minutes of breaks (minimum) they were required to take each day, naturally this means the incentive is to keep going and have your logbook show as many hours as possible.

It is relevant to the culpability of the defendant that in paying the drivers in such a way the defendant needed to be proactive in avoiding circumstances of the drivers not complying with the fatigue regulations to increase their take home pay. As the opportunity and temptation to the drivers was obvious, the company needed to be diligent in overseeing the obvious risk.

The defendant's office staff were actively changing logbook records to avoid paying drivers their claimed pay. This suggests the defendant had caught drivers making false claims on their logbook and penalised it with reduction in pay. That is completely reasonable however it just sends the message to the drivers "we'll pay ANY hours actually worked".

The defendant was fined $1,200,000 and a conviction was recorded. There are further matters regarding the offending which may return to court (for individual offenders) however the high degree of culpability the offender had in this case (as in they created this incentive to offend) is largely the reason a significant fine was imposed. That being said, the fine was a fraction of what they would have got if they received the maximum for all 37 offences.

Responsible companies have for many years now had 'shift ceilings' for Heavy Vehicle drivers (usually that a shift - including breaks - cannot exceed 12 to 13 hours).

Hopefully this case will serve as a warning to both drivers and transport companies and it is lucky this criminal offending was caught before it resulted in serious injuries or death.