In a case highlighting the serious penalties facing all levels of workers when safety laws are breached,  an Ops Manger is going to jail after a series of breaches led to the death of four people.  This individual penalty is in addition to $2.31m in fines issued to the business directly.  All businesses, and ‘responsible persons’ in them, are being called on to review their fatigue management and safety oversight systems now.

In handing down the 3 year jail term, with a 12 month non parole period, the Magistrate noted that the Ops Managers conduct was “deceitful and deliberate” and that the breaches could have been avoided with known control measures.

The incident in April 2020 involved a Connect Logistics vehicle, being operated by drug-affected driver, Mohinder Singh, who fell asleep while travelling on a Melbourne highway.  The vehicle then impacted two police cars, resulting in the death of four police officers.

As a result of the incident the driver was jailed for 14.5 years and his employer was handed a $2.31 million category-1 penalty – the highest fine ever imposed under the HVNL.  A category-1 breach is the most serious offence under the HVNL, and involves engaging, without reasonable excuse, in conduct relating to a primary safety duty that exposes an individual to a risk of death or serious injury or illness, and being reckless as to the risk.

The Operations Manager, who was the Drivers direct supervisor, was first charged with manslaughter before those charges were changed to recklessness under the HVNL.

The 6 week court proceedings outlined that  in the seven months leading up to the incident more than 40 per cent of the company’s driving shifts featured at least one fatigue-related breach, and senior managers including the Ops Manager checked and endorsed hundreds of the offending shifts.

The Magistrate heard evidence that systems and procedures were in place to ensure fatigue management compliance, but that the Ops Manager failed to comply with them, contributing and facilitating the breaches that led to the deaths.

Learnings for all businesses

“Safety is literally everyone’s responsibility, and where there are deliberate actions to circumvent controls, all of those persons who should have enforced controls will face the full force of the law.  Penalties are personal, not just a cost of doing business, and that is as it has to be to ensure safety at all workplaces”, explains ACAPMAs Elisha Radwanowski.

National Heavy Vehicle Regulator’s  Executive Director of Compliance, Raymond Hassall stressed that these systems are “crucial for ensuring the safety of drivers and the public”.

“We don’t just urge, but we challenge all companies to critically review and strengthen their fatigue management practices,” Hassall said.

Belinda Hughes, the NHVR’s Director of Prosecutions, reminded duty holders that fatigue is not a minor issue.

“A fatigued driver risks their own lives and the lives of the road users around them,” Hughes said.

“This case demonstrates the shared responsibility for drivers to be fit to drive. The duty rests on the company and senior management just as much as the driver,” she said.

Fatigue Management is always a focus

In a recent 4 week blitz the regulator stopped and inspected fatigue records for over 5,350 heavy vehicles.  207 heavy vehicles were issued with breach and compliance notices.

“Unfortunately, 129 of [the fatigue] offences were detected for drivers exceeding their allowable work hours, or not taking adequate periods of rest,” NHVR chief operations officer Paul Salvati said.

“We want to remind heavy vehicle drivers of the critical importance of practising safe behaviours, including taking rest and meal breaks,” he said.

“If you are on the road and feel the five signs of fatigue – inattention, irregular body movements, erratic vehicle movements, dull sensory alertness, or poor concentration – please, take a break.”

Here to Help

Safety Highlights are things to consider, implement and watch out for in your business.  They are provided as general information for you to consider and do not constitute advice.  You should seek further advice on your situation by contacting your legal advisor.  ACAPMA members can access resources and receive advice, guidance and support from the ACAPMA employment professionals via employment@acapma.com.au  , it is free for members.  ACAPMA Membership delivers this and more benefits, see; https://acapma.com.au/membership/   for more information.

Elisha Radwanowski BCom(HRM&IR)
ACAPMA

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