Inspector Batty v Intercoast Refrigerated Transport Pty Ltd

r Penfold) v Fernz Construction Materials Limited [No 2] [2000] NSWIRComm 99; (2000) 100 IR 23 WorkCover Authority of NSW v CI & D Manufacturing Pty Ltd [1994] NSWIRComm 230; (1995) 60 IR 149 Category: Principal judgment Parties: Inspector Ian John Batty (Prosecutor) Anthony Morfea (Individual Defendant) Intercoast Refrigerated Transport Pty Ltd (Corporate Defendant) Representation: S Crawshaw SC with A Mitchelmore of counsel (Prosecutor) M Kimber SC with M K Scott of counsel (Defendants) WorkCover Authority of NSW (Prosecutor) Lander and Rogers Lawyers (Defendants) File Number(s): IRC 1263 of 2010 IRC 1262 of 2010 IRC 1261 of 2010 IRC 1260 of 2010

Judgment (as to liability) 1Four prosecutions are brought by Inspector Ian Batty of the WorkCover Authority of New South Wales, two against Intercoast Refrigerated Transport Pty Ltd ("the corporate defendant" or "Intercoast") and two against Anthony Francis Morfea ("the individual defendant") under the deeming provisions in s 26(1). They both are charged with breaches under s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 ("the OHS Act" or "the Act") by way of Applications for Order. 2It is alleged, in Matter No IRC 1263 of 2010, the corporate defendant (Intercoast) on 14 November 2008 at the NSW RTA Inspection Facility near Twelve Mile Creek, in the State of New South Wales ("the premises"), being an employer, contravened s 8(1) of the Act in that it failed to: ensure the health, safety and welfare at work of all its employees and in particular, Gregory Keith Phillips, contrary to section 8(1) of the Act. The particulars of the charge are: Particulars of risk 1.As a consequence of the acts and omissions of the defendant, as particularised below, on 14 November 2008 Gregory Phillips was exposed to a risk of being struck by the heavy combination vehicle, namely a "B-double" consisting of a Kenworth prime mover bearing registration no VV 29 GZ; an A trailer bearing registration no 215 QHY; and a B trailer bearing registration no VT 85 IP, whilst repairs were being performed on that vehicle at the RTA Inspection Facility. Particulars of the defendant's acts and omissions Particulars of the defendant's failings in relation to systems of work with respect to the pre-employment screening of employees 2.The defendant failed to provide a system of work with respect to the management of drug usage in relation to the driving, operation and management of its long haul vehicles by persons employed by the defendant to drive, operate and manage those vehicles that was safe and without risk to health. Measures the defendant should have taken but failed to take with respect to illicit drug management 3.The defendant should have taken, but failed to take, the following measures in order to ensure a safe system of work with respect to the management of drug usage in relation to the driving, operation and management of its long haul heavy combination vehicles by person's employed by the defendant to drive, operate and manage those vehicles: (a)The defendant should have identified criteria relating to driver traffic histories [i.e. records of traffic infringements] against which the histories of applicants for employment as long haul drivers were to be assessed prior to employment for the purposes of identifying: (i)applicants who were unsuitable for employment as a long haul heavy combination vehicle driver; and (ii)applicants who, if employed, would require additional monitoring for compliance with traffic rules and regulations. (b)The defendant should have identified criteria relating to drug usage which the traffic and criminal histories of applicants for employment as long haul drivers were to be assessed prior to employment for the purpose of identifying: (i)applicants who were unsuitable for employment as a long haul heavy combination vehicle driver; and (ii)applicants, who if employed, would require additional monitoring for illicit drug use. (c)The defendant should have assessed all long haul applicant driver traffic histories against the identified criteria with respect to traffic histories and/or criminal histories prior to employment for the purpose of identifying: (i)whether applicants were unsuitable for employment as a long haul heavy combination vehicle driver; and (ii)applicants, who if employed, would require additional monitoring for compliance with traffic rules and regulations. (d)The defendant should have required all applicants for employment as long haul drivers to undergo a full pre-employment medical examination, including testing designed to identify illicit drug usage; (e)The defendant should have identified criteria pursuant to which applicants for employment as long haul drivers who tested positive for usage of illicit drugs and/or who were assessed by an appropriately qualified medical practitioner as showing signs or symptoms of illicit drug usage were to be assessed by the defendant for the purpose of identifying: (i)whether those applicants were unsuitable for employment as a long haul heavy combination vehicle driver; and (ii)applicants, who if employed, would require additional monitoring for illicit drug use. (f)The defendant should have assessed all applicants for employment as long haul drivers who tested positive for usage of illicit drugs and/or who were assessed by an appropriately qualified medical practitioner as showing signs or symptoms of illicit drug use against the defendant's criteria for the purpose of identifying: (i)whether those applicants were unsuitable for employment as a long haul heavy combination vehicle driver; and (ii)applicants, who if employed, would require additional monitoring for illicit drug usage. (g)The defendant should have performed annual medical examinations, including testing for use of illicit drugs in accordance with a program designed by a medical practitioner or other person with expertise in the design of drug screening programs for all persons employed by the defendant who were assigned to long haul driving duties. (h)The defendant should have performed random testing, in accordance with a program designed by a medical practitioner or other person with expertise in the design of drug screening programs, for the purpose of monitoring all persons employed by the defendant who were assigned to long haul driving duties for use of illicit drugs. (j)The defendant should have performed additional monitoring, including regular scheduled medical examinations and drug testing, of employees identified by the defendant as requiring additional monitoring for illicit drug usage. (j)The defendant should have had in place a system for disciplining, including termination of the employment, of long haul drivers who tested positive for the use of illicit drugs whilst in control of the defendant's long haul heavy combination vehicles. (k)The defendant should have screened Gregory Phillips' traffic and criminal histories, as disclosed by Gregory Phillips at or about the time that Gregory Phillips commenced employment with the defendant for the purposes of ascertaining: (i)whether Gregory Phillips was unsuitable for employment as a long haul heavy combination vehicle driver; (ii)whether Gregory Phillips, if employed, would require additional monitoring for illicit drug use. (l)The defendant should required Gregory Phillips to undergo a pre-employment medical examination, including screening for illicit drug use. (m)The defendant, upon employing Gregory Phillips as a long haul driver, should have instituted a monitoring program for illicit drug usage which included: (i)regular, scheduled screening tests for illicit drug usage; (ii)random screening tests for illicit drug usage; and (iii)a program of performance management, for the purposes of monitoring Phillips performance for signs of illicit drug usage. (n)The defendant should have had in place and enforced a proper fatigue management system, particularised below, so as to reduce the risk that its long haul drivers would use illicit stimulants to offset fatigue. Particulars of the defendant's failings in relation to systems of work with respect to fatigue management 4.The defendant failed to provide a system of work with respect to the management of fatigue associated with the performance of long haul driving duties, including the driving, operation and management of long haul heavy combination vehicles, in relation to its employed long haul drivers, including Gregory Phillips, that obviated or otherwise minimised the risk to their health and safety. Measures the Defendant should have taken but failed to take with respect to fatigue management 5.The defendant should have taken, but failed to take, the following measures in order to ensure a safe system of work with respect to fatigue management in relation to the driving, operation and management of its long haul heavy combination vehicles by person's employed by the defendant to drive, operate and manage the defendant's long haul heavy combination vehicles: (a)The defendant should have verified driver compliance with the defendant's Fatigue Management policies and systems, prior to allocating long haul driving duties, including the allocation of the subject trip to Gregory Phillips. (b)The defendant should have verified driver compliance with regulatory requirements governing working hours and mandatory rest periods, prior to allocating long haul driving duties, including allocation of the subject trip to Gregory Phillips. (c)The defendant should have maintained accurate records of Gregory Phillips' driving hours and rest breaks, including the defendant's Daily Movement Sheets. (d)The defendant should have notified its supervisory staff of driver details relevant to the monitoring and enforcement of the defendant's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, as part of the process of allocating long haul driving duties, including allocation of the subject trip to Gregory Phillips. (e)The defendant should have utilised information available from the GPS vehicle tracking system attached to its long haul vehicles, including the subject heavy combination vehicle, to monitor and enforce compliance with the defendant's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, prior to allocating long haul driving duties, including the allocation of the subject trip to Gregory Phillips. (f)The defendant should have utilised information available from the GPS vehicle tracking system attached to its long haul vehicles, including the subject heavy combination vehicle, to monitor and enforce compliance with the defendant's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, in the course of long haul driving duties, including monitoring and enforcing compliance by Gregory Phillips with the defendant's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, in the course of the subject trip. (g)The defendant should have developed and provided its employees with a written, integrated Fatigue Management system, such as the system set out in the Intercoast Refrigerated Transport Pty Ltd Fatigue Management Manual dated 16 February 2009 [Code: FMM. Version: 1] (h)The defendant should have developed and enforced Fatigue Management Control Procedures, including Fatigue Control Procedures of the type set out in the standard operating procedure entitled "Intercoast Refrigerated Transport Pty Ltd Standard Operating Procedure Fatigue Management" dated 16 February 2009 [Code SOPSDP. Version: 1], including: (i)detailed employee induction to ensure that all drivers and employees involved in the defendant's fatigue management process were aware of relevant policies, requirements, systems and controls; (ii)the preparation of detailed trip plans for each manifest for the purpose of verifying prior to the commencement of the subject trip that: the trip can be completed within a legal timeframe with the necessary on route rest breaks clearly identified and scheduled; and the driver to whom it is proposed to allocate the trip has had the required rest breaks prior to commencing the trip; (iii)written pre-trip verification by the allocated driver that the driver is fit and has had the required rest breaks prior to the commencement of the trip; (iv)maintenance of written, accurate dispatch records, such as the defendant's Daily Movement Sheets, verifying pre-sending rest breaks, departure time and any pre-directed rest breaks necessitated by limited driver hours; (v)monitoring by management of the allocation of long haul driving duties in accordance with a fatigue management checklist, such as the Checklist for NSW Basic Fatigue Management; (vi)monitoring of driver fatigue management overnight, including the use of GPS tracking information, for the purpose of ensuring compliance with the defendant's Fatigue Management system and the relevant regulatory requirements governing working hours and mandatory rest periods. (j)The defendant should not have assigned Gregory Phillips to drive the subject vehicle from Tingalpa to Coffs Harbour on that day without Gregory Phillips taking the break from driving and related duties necessary to achieve compliance with the relevant regulatory requirements. Particulars of the defendant's failings in relation to systems of work with respect to the conduct of roadside repairs 6.The defendant failed to provide a system of work in relation to the performance of roadside service and/or repair of the defendant's long haul heavy combination vehicles that was safe and without risk to health. Measures the defendant should have taken but failed to take with respect to the conduct of roadside repairs 7.The defendant should have instructed its employees, including Gregory Phillips, that long haul drivers were not to participate in the roadside servicing and/or repair of the defendant's long haul heavy combination vehicles. 8.Further, the defendant should have instructed its employees, including Gregory Phillips that long haul drivers were to remain clear of the vehicle and not to approach the vehicle whilst roadside servicing and/or repairs were being conducted. Particulars of the defendant's failings in relation to information, instruction and training re fatigue management 9.The defendant failed to provide such information and instruction regarding fatigue management to its employees as was necessary to ensure the health and safety of its employees whilst undertaking long haul driving duties, including the driving, operation and management of the defendant's long haul heavy combination vehicles. Measures the defendant should have taken and failed to take with respect to information, instruction and training re fatigue management 10.The defendant should have taken but failed to take the following measures in order to ensure that such information and instruction regarding fatigue management as was necessary was given to its employees: (a)The defendant should have provided its employees with detailed induction training in relation to an integrated fatigue management program; (b)The defendant should have instructed its operations staff, including but not limited to Troy O'Brien, the Depot Manager at Tingalpa, to verify driver hours prior to the allocation of long haul driving duties utilising the Activity Report information available from the defendant's GPs tracking of its long haul heavy combination vehicles; (c)The defendant should have instructed its employees assigned to monitor long haul drivers overnight to verify driver compliance with the defendant's fatigue management procedures; (d)The defendant should have instructed its employees assigned to monitor long haul drivers overnight to verify driver compliance with relevant regulatory requirements governing working hours and mandatory rest periods; (e)The defendant should have provided with the information necessary to enable its employees assigned to monitor long haul drivers overnight to verify driver compliance with the defendant's fatigue management procedures, including compliance with requirements governing working hours and mandatory rest periods, including: (i)dispatch sheets, such as the defendant's Daily Movement Sheets, accurately recording pre-sending breaks, departure times, and details of any pre-determined breaks, including time and location; and (ii)information from the GPS tracking system, such as the GPS Activity Reports. Particulars of the defendant's failings in relation to Supervision 11.The defendant failed to provide such supervision to its employees as was necessary to ensure their health and safety whilst undertaking long haul driving duties. Measures the Defendant should have taken and failed to take in relation to Supervision 12.The defendant should have taken but failed to take the following measures in order to ensure that such supervision as was necessary was provided to employees engaged in long haul driving duties: (a)The defendant should have ensured that operations staff, including Troy O'Brien, the Depot Manager at Tingalpa, did not assign long haul driving duties without verifying that the driver to be assigned was compliant with the defendant's fatigue management policies and systems by reference to: (i)The driver's logbook; (ii)The defendant's driver allocation records; and (iii)The information available from the GPS tracking system. (b)The defendant should have ensured that operations staff, including Troy O'Brien, the Depot Manager at Tingalpa, did not assign long haul driving duties without verifying that the driver to be assigned was compliant with the regulatory requirements governing working hours and mandatory rest periods by reference to: (i)The driver's logbook; (ii)The defendant's driver allocation records; and (iii)The information available from the GPS tracking system. (c)The defendant should have ensured that staff charged with overnight monitoring of long haul drivers verified that long haul drivers were compliant with the defendant's fatigue management policies and systems by reference to relevant records and information including: (i)The defendant's driver allocation records; and (ii)The information available from the GPS tracking system. (d)The defendant should have ensured that staff charged with overnight monitoring of long haul drivers verified that long haul drivers were compliant with the relevant regulatory requirements governing working hours and mandatory rest periods. 13.As a consequence of the acts and omissions of the defendant, as particularised above, on 14 November 2008 Gregory Keith Phillips was exposed to a risk of being struck by the subject heavy combination vehicle whilst repairs were being performed on that vehicle at the RTA Inspection Facility. 14.Further, as a consequence of the acts and omissions of the defendant, as particularised above, on 14 November 2008 Gregory Keith Phillips sustained fatal injury when he was struck by the subject heavy combination vehicle whilst that vehicle was undergoing repair at RTA Inspection Facility at Twelve Mile Creek near Hexham in the State of New South Wales. 3It is alleged, in Matter No IRC 1262 of 2010, the corporate defendant, on 14 November 2008 at the NSW RTA Inspection Facility near Twelve Mile Creek in the State of New South Wales ("the premises"), being an employer, contravened s 8(2) of the Act in that it failed to: ensure that people other than the company's employees, in particular, Michael Webb, were not exposed to risks to their health and safety arising from the conduct of the company's undertaking whilst they were at the company's place of work contrary to section 8(2) of the Occupational Health and Safety Act, 2000. The particulars of the charge are: Particulars of risk 1.As a consequence of the acts and omissions of the company, as particularised below, on 14 November 2008 Gregory Phillips was exposed to a risk of being struck by a heavy combination vehicle, namely a "B-double" consisting of a Kenworth prime mover bearing registration no VV 29 GZ; an A trailer bearing registration no 215 QHY; and a B trailer bearing registration no VT 85 IP, whilst repairs were being performed on that vehicle at the RTA Inspection Facility. The company's undertaking 2.At all material times the company undertook business as a transport company, including the provision of long haul, including interstate, freight transport services. 3.On 14 November 2008, as part of the undertaking of its business as a transport company providing long haul and interstate freight transport services, the company was the operator of a heavy combination vehicle consisting of: a Kenworth K104 Model Prime Mover bearing Victorian registration no. VV29GZ; Trailer A, being a Maxi-Tran ST3 refrigerated van bearing Queensland registration no. 215QHY; and Trailer B, being a Maxi-Tran ST3 refrigerated van bearing Federal Interstate registration no. VT85IT. ("the heavy combination vehicle"). Employment 4.At all material times the company was an employer. 5.At all material times the company employed Gregory Keith Phillips as a driver to drive heavy combination vehicles. 6.On 14 November 2008, whilst in the course of his employment with the company, Gregory Phillips was the driver in charge of the heavy combination vehicle. Place of work 7.At all material times, the heavy combination vehicle, including its immediate environs at the RTA Inspection Facility, was the company's place of work. Particulars of the company's acts and omissions Particulars of the company's failings in relation to systems of work with respect to the pre-employment screening of employees 8.The company failed to provide a system of work with respect to the management of illicit drug usage by its employed long haul truck drivers, in particular Gregory Phillips, in relation to the driving, operation and management of its long haul vehicles that obviated or otherwise minimised the risk to health and safety. Measures the company should have taken but failed to take with respect to the use of illicit drugs by drivers in its employ 9.The company should have taken, but failed to take, the following measures with respect to the management of illicit drug usage by its employed long haul truck drivers, in particular Mr Phillips, in relation to the driving, operation and management of its long haul heavy combination vehicles: (a)The company should have identified criteria relating to driver traffic histories [i.e. records of traffic infringements] against which the histories of applicants for employment as long haul drivers, including Gregory Phillips, were to be assessed prior to employment for the purposes of identifying: (i)applicants who were unsuitable for employment as a long haul heavy combination vehicle driver; and (ii)applicants who, if employed, would require additional monitoring for compliance with traffic rules and regulations. (b)The company should have identified criteria relating to illicit drug usage against which the traffic and criminal histories of applicants for employment as long haul drivers, including Gregory Phillips, were to be assessed prior to employment for the purpose of identifying: (i)applicants who were unsuitable for employment as a long haul heavy combination vehicle driver; and (ii)applicants, who if employed, would require additional monitoring for illicit drug use. (c)The company should have assessed all long haul applicant driver traffic histories, including Gregory Phillips' history, against the identified criteria with respect to traffic histories and/or criminal histories prior to employment for the purpose of identifying: (i)whether applicants were unsuitable for employment as a long haul heavy combination vehicle driver; and (ii)applicants, who if employed, would require additional monitoring for compliance with traffic rules and regulations. (d)The company should have required all applicants for employment as long haul drivers, including Gregory Phillips, to undergo a full pre-employment medical examination, including testing designed to identify illicit drug usage; (e)The company should have identified criteria pursuant to which applicants for employment as long haul drivers who tested positive for usage of illicit drugs and/or who were assessed by an appropriately qualified medical practitioner as showing signs or symptoms of illicit drug use were to be assessed by the company for the purpose of identifying: (i)whether those applicants were unsuitable for employment as a long haul heavy combination vehicle driver; and (ii)applicants, who if employed, would require additional monitoring for illicit drug usage. (f)The company should have assessed all applicants for employment as long haul drivers who tested positive for usage of illicit drugs and/or who were assessed by an appropriately qualified medical practitioner as showing signs or symptoms of illicit drug use against the company's criteria for the purpose of identifying: (i)whether those applicants were unsuitable for employment as a long haul heavy combination vehicle driver; and (ii)applicants, who if employed, would require additional monitoring for illicit drug usage. (g)The company should have performed annual medical examinations, including testing for use of illicit drugs in accordance with a program designed by a medical practitioner or other person with expertise in the design of drug screening programs, for all persons employed by the company who were assigned to long haul driving duties. (h)The company should have performed random testing, in accordance with a program designed by a medical practitioner or other person with expertise in the design of drug screening programs, for the purpose of monitoring all persons employed by the company who were assigned to long haul driving duties for use of illicit drugs. (j)The company should have performed additional monitoring, including regular scheduled medical examinations and drug testing, of employees identified by the company as requiring additional monitoring for illicit drug usage. (k)The company should have had in place a system for disciplining, including termination of the employment, of long haul drivers who tested positive for the use of illicit drugs whilst in control of the company's long haul heavy combination vehicles. (l)The company should have screened Gregory Phillips' traffic and criminal histories, as disclosed by Gregory Phillips at or about the time that Phillips commenced employment with the company for the purposes of ascertaining: (i)whether Gregory Phillips was unsuitable for employment as a long haul heavy combination vehicle driver; (ii)whether Gregory Phillips, if employed, would require additional monitoring for illicit drug use. (m)The company should have required Gregory Phillips to undergo a pre-employment medical examination, including screening for illicit drug use, prior to Gregory Phillips being permitted by the company to commence work with the defendant as a driver assigned to long haul driving duties. (n)The company, upon employing Gregory Phillips as long haul driver, should have instituted a monitoring program for illicit drug usage which included Mr Phillips undergoing: (i)regular, scheduled screening tests for illicit drug usage; (ii)random screening tests for illicit drug usage; and (iii)a program of performance management, for the purpose of to monitoring Phillips' performance for signs of illicit drug usage. (o)The company should have had in place and enforced a proper fatigue management system, particularised below, so as to reduce the risk that its long haul drivers, including Gregory Phillips, would use illicit stimulants to offset fatigue. Particulars of the company's failings in relation to systems of work with respect to fatigue management 10.The company failed to provide a system of work with respect to the management of fatigue associated with the performance of long haul driving duties, including the driving, operation and management of long haul heavy combination vehicles, in relation to its employed long haul drivers, including Gregory Phillips, to ensure that people other than the defendant's employees, in particular, Michael Webb, were not exposed to risk to their health and safety. Measures the Company should have taken but failed to take with respect to fatigue management 11.The company should have taken, but failed to take, the following measures in order to ensure a safe system of work with respect to fatigue management in relation to the driving, operation and management of its long haul heavy combination vehicles by persons employed by the company to drive, operate and manage the company's long haul heavy combination vehicles: (a)The company should have verified compliance with the company's Fatigue Management policies and systems prior to allocating long haul driving duties, including allocation of the subject journey to Gregory Phillips. (b)The company should have verified driver compliance with regulatory requirements governing working hours and mandatory rest periods, prior to allocating long haul driving duties, including allocation of the subject trip to Gregory Phillips. (c)The company should have maintained accurate records of Gregory Phillips' driving hours and rest breaks, including the company's Daily Movement Sheets. (d)The company should have notified its supervisory staff of driver details relevant to the monitoring and enforcement of the company's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, as part of the process of allocating long haul driving duties, including allocation of the subject trip to Gregory Phillips. (e)The company should have utilised information available from the GPS vehicle tracking system attached to its long haul vehicles, including the subject heavy combination vehicle, to monitor and enforce compliance with the company's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, prior to allocating long haul driving duties, including the allocation of the subject trip to Mr Phillips. (f)The company should have utilised information available from the GPS vehicle tracking system attached to its long haul vehicles, including the subject heavy combination vehicle, to monitor and enforce compliance with the company's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, in the course of long haul driving duties, including monitoring and enforcing compliance by Gregory Phillips with the company's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, in the course of the subject trip. (g)The company should have developed and provided its employees with a written, integrated Fatigue Management system, such as the system set out in the Intercoast Refrigerated Transport Pty Ltd Fatigue Management Manual dated 16 February 2009 [Code: FMM. Version: 1]. (h)The company should have developed and enforced Fatigue Management Control Procedures, including the Fatigue Control Procedures of the type set out in the standard operating procedure entitled "Intercoast Refrigerated Transport Pty Ltd Standard Operating Procedure Fatigue Management" dated 16 February 2009 [Code SOPSDP. Version: 1], including: (i)detailed employment induction to ensure that all drivers and employees involved in the company's fatigue management process were aware of relevant policies, requirements, systems and controls; (ii)the preparation of detailed trip plans for each manifest for the purpose of verifying prior to the commencement of the subject trip that: the trip can be completed within a legal timeframe with the necessary on route rest breaks clearly identified and scheduled; and the driver to whom it is proposed to allocate the trip has had the required rest breaks prior to commencing the trip; (iii)written pre-trip verification by the allocated driver that the driver is fit and has had the required rest breaks prior to the commencement of the trip; (iv)maintenance of written, accurate dispatch records, such as the company's Daily Movement Sheets, verifying pre-sending rest breaks, departure time and any pre-directed rest breaks necessitated by limited driver hours; (v)monitoring by management of the allocation of long haul driving duties in accordance with the Checklist for NSW Basic Fatigue Management; (vi)monitoring of driver fatigue management overnight, including the usage of GPS Activity Reporting information for the purpose of ensuring compliance. (j)The company should not have assigned Gregory Phillips to drive the subject vehicle from Tingalpa to Coffs Harbour on that day without Gregory Phillips taking the break from driving and related duties necessary to achieve compliance with the relevant regulatory requirements. Particulars of the company's failings in relation to systems of work with respect to the conduct of roadside repairs 12.The company failed to provide a system of work in relation to the performance of roadside service and/or repair of the company's long haul heavy combination vehicles to ensure that people other than the defendant's employees, in particular, Michael Webb, were not exposed to risks to their health and safety. Measures the company should have taken but failed to take with respect to the conduct of roadside repairs 13.The company should have instructed its employees, including Gregory Phillips, that long haul drivers were not to participate in the roadside servicing and/or repair of the company's long haul heavy combination vehicles. 14.Further, the company should have instructed its employees, including Gregory Phillips that long haul drivers were to remain clear of the vehicle and not to approach the vehicle whilst roadside servicing and/or repairs were being conducted. Particulars of the company's failings in relation to information, instruction and training re fatigue management 15.The company failed to provide such information and instruction regarding fatigue management to its employees undertaking long haul driving duties, including the driving, operation and management of the company's long haul heavy combination vehicles, to ensure that people other than the defendant's employees, in particular, Michael Webb, were not exposed to risks to their health and safety. Measures the company should have taken and failed to take with respect to information, instruction and training re fatigue management 16.The company should have taken but failed to take the following measures in order to ensure that such information and instruction regarding fatigue management as was necessary was given to its employees: (a)The company should have provided its employees with detailed induction training in relation to an integrated fatigue management program; (b)The company should have instructed its operations staff, including but not limited to Troy O'Brien, the Depot Manager at Tingalpa, to verify driver hours prior to the allocation of long haul driving duties utilising the Activity Report information available from the company's GPs tracking of its long haul heavy combination vehicles; (c)The company should have instructed its employees assigned to monitor long haul drivers overnight to verify driver compliance with the company's fatigue management procedures; (d)The company should have instructed its employees assigned to monitor long haul drivers overnight to verify driver compliance with relevant regulatory requirements governing working hours and mandatory rest periods; (e)The company should have provided with the information necessary to enable its employees assigned to monitor long haul drivers overnight to verify driver compliance with the company's fatigue management procedures, including compliance with requirements governing working hours and mandatory rest periods, including: (i)dispatch sheets, such as the company's Daily Movement Sheets, accurately recording pre-sending breaks, departure times, and details of any pre-determined breaks, including time and location; and (ii)information from the GPS tracking system, such as the GPS Activity Reports. Particulars of the company's failings in relation to Supervision 17.The company failed to provide such supervision to its employees to ensure that people other than the defendant's employees, in particular, Michael Webb, were not exposed to risks to their health and safety Measures the Company should have taken and failed to take in relation to Supervision 18.The company should have taken but failed to take the following measures in order to ensure that such supervision as was necessary was provided to employees engaged in long haul driving duties: (a)The company should have ensured that operations staff, including Troy O'Brien, the Depot Manager at Tingalpa, did not assign long haul driving duties without verifying that the driver to be assigned was compliant with the company's fatigue management policies and systems by reference to: (i)The driver's logbook; (ii)The company's driver allocation records; and (iii)The information available from the GPS tracking system. (b)The company should have ensured that operations staff, including Troy O'Brien, the Depot Manager at Tingalpa, did not assign long haul driving duties without verifying that the driver to be assigned was compliant with the regulatory requirements governing working hours and mandatory rest periods by reference to: (i)The driver's logbook; (ii)The company's driver allocation records; and (iii)The information available from the GPS tracking system. (c)The company should have ensured that staff charged with overnight monitoring of long haul drivers verified that long haul drivers were compliant with the company's fatigue management policies and systems by reference to relevant records and information including: (i)The company's driver allocation records; and (ii)The information available from the GPS tracking system. (d)The company should have ensured that staff charged with overnight monitoring of long haul drivers verified that long haul drivers were compliant with the relevant regulatory requirements governing working hours and mandatory rest periods. 19.As a consequence of the acts and omissions of the company, as particularised above, on 14 November 2008 Michael Webb was placed at risk of being struck by the subject heavy combination vehicle whilst repairs were being performed on that vehicle at the RTA Inspection Facility at Twelve Mile Creek near Raymond Terrace in the State of New South Wales. 4It is alleged, in Matter No. IRC 1260 of 2010, the individual defendant, on 14 November 2008 at the NSW RTA Inspection Facility near Twelve Mile Creek in the State of New South Wales ("the premises), being an employer, contravened s 8(1) of the Act in that it failed to: ensure by its acts and omissions as particularised below the health, safety and welfare at work of all its employees and in particular, Gregory Keith Phillips, contrary to section 8(1) of the Act. The particulars of the charge are: Particulars of risk 1.As a consequence of the acts and omissions of the company, as particularised below, on 14 November 2008 Gregory Phillips was exposed to a risk of being struck by a heavy combination vehicle, namely a "B-double" consisting of a Kenworth prime mover bearing registration no VV 29 GZ; an A trailer bearing registration no 215 QHY; and a B trailer bearing registration no VT 85 IP, whilst repairs were being performed on that vehicle at the RTA Inspection Facility. Particulars of the company's acts and omissions Particulars of the company's failings in relation to systems of work with respect to the pre-employment screening of employees 2.The company failed to provide a system of work with respect to the management of illicit drug usage by its employed long haul truck drivers, in particular Gregory Phillips, in relation to the driving, operation and management of its long haul vehicles that obviated or otherwise minimised the risk to health and safety. Measures the company should have taken but failed to take with respect to the use of illicit drugs by drivers in its employ 3.The company should have taken, but failed to take, the following measures with respect to the management of illicit drug usage by its employed long haul truck drivers, in particular Mr Phillips, in relation to the driving, operation and management of its long haul heavy combination vehicles: (a)The company should have identified criteria relating to driver traffic histories [i.e. records of traffic infringements] against which the histories of applicants for employment as long haul drivers, including Gregory Phillips, were to be assessed prior to employment for the purposes of identifying: (i) applicants who were unsuitable for employment as a long haul heavy combination vehicle driver; and (ii) applicants who, if employed, would require additional monitoring for compliance with traffic rules and regulations. (b)The company should have identified criteria relating to illicit drug usage against which the traffic and criminal histories of applicants for employment as long haul drivers, including Gregory Phillips, were to be assessed prior to employment for the purpose of identifying: (i) applicants who were unsuitable for employment as a long haul heavy combination vehicle driver; and (ii) applicants, who if employed, would require additional monitoring for illicit drug use. (c)The company should have assessed all long haul applicant driver traffic histories, including Gregory Phillips' history, against the identified criteria with respect to traffic histories and/or criminal histories prior to employment for the purpose of identifying: (i) whether applicants were unsuitable for employment as a long haul heavy combination vehicle driver; and (ii) applicants, who if employed, would require additional monitoring for compliance with traffic rules and regulations. (d)The company should have required all applicants for employment as long haul drivers, including Gregory Phillips, to undergo a full pre-employment medical examination, including testing designed to identify illicit drug usage; (e)The company should have identified criteria pursuant to which applicants for employment as long haul drivers who tested positive for usage of illicit drugs and/or who were assessed by an appropriately qualified medical practitioner as showing signs or symptoms of illicit drug use were to be assessed by the company for the purpose of identifying: (i) whether those applicants were unsuitable for employment as a long haul heavy combination vehicle driver; and (ii) applicants, who if employed, would require additional monitoring for illicit drug usage. (f)The company should have assessed all applicants for employment as long haul drivers who tested positive for usage of illicit drugs and/or who were assessed by an appropriately qualified medical practitioner as showing signs or symptoms of illicit drug use against the company's criteria for the purpose of identifying: (i) whether those applicants were unsuitable for employment as a long haul heavy combination vehicle driver; and (ii) applicants, who if employed, would require additional monitoring for illicit drug usage. (g)The company should have performed annual medical examinations, including testing for use of illicit drugs in accordance with a program designed by a medical practitioner or other person with expertise in the design of drug screening programs, for all persons employed by the company who were assigned to long haul driving duties. (h)The company should have performed random testing, in accordance with a program designed by a medical practitioner or other person with expertise in the design of drug screening programs, for the purpose of monitoring all persons employed by the company who were assigned to long haul driving duties for use of illicit drugs. (j)The company should have performed additional monitoring, including regular scheduled medical examinations and drug testing, of employees identified by the company as requiring additional monitoring for illicit drug usage. (k)The company should have had in place a system for disciplining, including termination of the employment, of long haul drivers who tested positive for the use of illicit drugs whilst in control of the company's long haul heavy combination vehicles. (l)The company should have screened Gregory Phillips' traffic and criminal histories, as disclosed by Gregory Phillips at or about the time that Phillips commenced employment with the company for the purposes of ascertaining: (i) whether Gregory Phillips was unsuitable for employment as a long haul heavy combination vehicle driver; (ii) whether Gregory Phillips, if employed, would require additional monitoring for illicit drug use. (m)The company should have required Gregory Phillips to undergo a pre-employment medical examination, including screening for illicit drug use, prior to Gregory Phillips being permitted by the company to commence work with the defendant as a driver assigned to long haul driving duties. (n)The company, upon employing Gregory Phillips as long haul driver, should have instituted a monitoring program for illicit drug usage which included Mr Phillips undergoing: (i)regular, scheduled screening tests for illicit drug usage; (ii)random screening tests for illicit drug usage; and (iii)a program of performance management, for the purpose of to monitoring Phillips' performance for signs of illicit drug usage. (o)The company should have had in place and enforced a proper fatigue management system, particularised below, so as to reduce the risk that its long haul drivers, including Gregory Phillips, would use illicit stimulants to offset fatigue. Particulars of the company's failings in relation to systems of work with respect to fatigue management 4.The company failed to provide a system of work with respect to the management of fatigue associated with the performance of long haul driving duties, including the driving, operation and management of long haul heavy combination vehicles, in relation to its employed long haul drivers, including Gregory Phillips, that obviated or otherwise minimised the risk to their health and safety. Measures the Company should have taken but failed to take with respect to fatigue management 5.The company should have taken, but failed to take, the following measures in order to ensure a safe system of work with respect to fatigue management in relation to the driving, operation and management of its long haul heavy combination vehicles by persons employed by the company to drive, operate and manage the company's long haul heavy combination vehicles: (a)The company should have verified compliance with the company's Fatigue Management policies and systems prior to allocating long haul driving duties, including allocation of the subject journey to Gregory Phillips. (b)The company should have verified driver compliance with regulatory requirements governing working hours and mandatory rest periods, prior to allocating long haul driving duties, including allocation of the subject trip to Gregory Phillips. (c)The company should have maintained accurate records of Gregory Phillips' driving hours and rest breaks, including the company's Daily Movement Sheets. (d)The company should have notified its supervisory staff of driver details relevant to the monitoring and enforcement of the company's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, as part of the process of allocating long haul driving duties, including allocation of the subject trip to Gregory Phillips. (e)The company should have utilised information available from the GPS vehicle tracking system attached to its long haul vehicles, including the subject heavy combination vehicle, to monitor and enforce compliance with the company's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, prior to allocating long haul driving duties, including the allocation of the subject trip to Mr Phillips. (f)The company should have utilised information available from the GPS vehicle tracking system attached to its long haul vehicles, including the subject heavy combination vehicle, to monitor and enforce compliance with the company's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, in the course of long haul driving duties, including monitoring and enforcing compliance by Gregory Phillips with the company's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, in the course of the subject trip. (g)The company should have developed and provided its employees with a written, integrated Fatigue Management system, such as the system set out in the Intercoast Refrigerated Transport Pty Ltd Fatigue Management Manual dated 16 February 2009 [Code: FMM. Version: 1]. (h)The company should have developed and enforced Fatigue Management Control Procedures, including the Fatigue Control Procedures of the type set out in the standard operating procedure entitled "Intercoast Refrigerated Transport Pty Ltd Standard Operating Procedure Fatigue Management" dated 16 February 2009 [Code SOPSDP. Version: 1], including: (i)detailed employment induction to ensure that all drivers and employees involved in the company's fatigue management process were aware of relevant policies, requirements, systems and controls; (ii)the preparation of detailed trip plans for each manifest for the purpose of verifying prior to the commencement of the subject trip that: the trip can be completed within a legal timeframe with the necessary on route rest breaks clearly identified and scheduled; and the driver to whom it is proposed to allocate the trip has had the required rest breaks prior to commencing the trip; (iii)written pre-trip verification by the allocated driver that the driver is fit and has had the required rest breaks prior to the commencement of the trip; (iv)maintenance of written, accurate dispatch records, such as the company's Daily Movement Sheets, verifying pre-sending rest breaks, departure time and any pre-directed rest breaks necessitated by limited driver hours; (v)monitoring by management of the allocation of long haul driving duties in accordance with the Checklist for NSW Basic Fatigue Management; (vi)monitoring of driver fatigue management overnight, including the usage of GPS Activity Reporting information for the purpose of ensuring compliance. (j)The company should not have assigned Gregory Phillips to drive the subject vehicle from Tingalpa to Coffs Harbour on that day without Gregory Phillips taking the break from driving and related duties necessary to achieve compliance with the relevant regulatory requirements. Particulars of the company's failings in relation to systems of work with respect to the conduct of roadside repairs 6.The company failed to provide a system of work in relation to the performance of roadside service and/or repair of the company's long haul heavy combination vehicles that was safe and without risk to health. Measures the company should have taken but failed to take with respect to the conduct of roadside repairs 7.The company should have instructed its employees, including Gregory Phillips, that long haul drivers were not to participate in the roadside servicing and/or repair of the company's long haul heavy combination vehicles. 8.Further, the company should have instructed its employees, including Gregory Phillips that long haul drivers were to remain clear of the vehicle and not to approach the vehicle whilst roadside servicing and/or repairs were being conducted. Particulars of the company's failings in relation to information, instruction and training 9.The company failed to provide such information and instruction regarding fatigue management to its employees as was necessary to ensure the health and safety of its employees whilst undertaking long haul driving duties, including the driving, operation and management of the company's long haul heavy combination vehicles. Measures the company should have taken but failed to take with respect to information, instruction and training 10.The company should have taken but failed to take the following measures in order to ensure that such information and instruction regarding fatigue management as was necessary was given to its employees in relation to fatigue management in the driving, operation and management of the company's long haul heavy combination vehicles, including: (a)The company should have provided its employees with detailed induction training in relation to an integrated fatigue management program; (b)The company should have instructed its operations staff, including but not limited to Troy O'Brien, the Depot Manager at Tingalpa, to verify driver hours prior to the allocation of long haul driving duties utilising the Activity Report information available from the company's GPS tracking of its long haul heavy combination vehicles; (c)The company should have instructed its employees assigned to monitor long haul drivers overnight to verify driver compliance with the company's fatigue management procedures, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods; (d)The company should have provided its employees assigned to monitor long haul drivers overnight the information and instructions necessary to verify driver compliance with the company's fatigue management procedures, including compliance with requirements governing working hours and mandatory rest periods, including: (i)dispatch sheets, such as the company's Daily Movement Sheets, accurately recording pre-sending breaks, departure times, and details of any pre-determined breaks, including time and location; and (ii)information from the company's GPS tracking system, such as the GPS Activity Reports. Particulars of the company's failings in relation to Supervision 11.The company failed to provide such supervision to its employees as was necessary to ensure the health and safety of its employees, in particular Gregory Phillips, whilst engaged in long haul driving duties. Measures the Company should have taken and failed to take in relation to Supervision 12.The company should have taken but failed to take the following measures in order to ensure that such supervision as was necessary was provided to employees, in particular Gregory Phillips, when engaged in long haul driving duties including: (a)The company should have ensured that operations staff, including Troy O'Brien, the Depot Manager at Tingalpa, did not assign long haul driving duties without verifying that the driver to be assigned was compliant with the company's fatigue management policies and systems, by reference to relevant records and information including: (i)The driver's logbook; (ii)The company's driver allocation records; and (iii)The information available from the GPS tracking system. (b)The company should have ensured that staff charged with overnight monitoring of long haul drivers verified that long haul drivers were compliant with the company's fatigue management policies and systems, by reference to relevant information and records: (i)The company's driver allocation records; and (ii)The information available from the GPS tracking system. (c)The company should have ensured that staff charged with overnight monitoring of long haul drivers verified that long haul drivers were compliant with the relevant regulatory requirements governing working hours and mandatory rest periods. 13.Further, as a consequence of the acts and omissions of the company, as particularised above, on 14 November 2008 Gregory Keith Phillips was exposed to a risk of being struck by the subject heavy combination vehicle whilst repairs were being performed on that vehicle at the RTA Inspection Facility at Twelve Mile Creek near Hexham in the State of New South Wales. 14.As a consequence of the acts and omissions of the company, Gregory Keith Phillips was fatally injured when he was struck by the subject heavy combination vehicle whilst that vehicle was undergoing repair at the RTA Inspection Facility at Twelve Mile Creek near Hexham in the State of New South Wales. 5It is alleged, in Matter No. IRC 1261 of 2010, the individual defendant, on 14 November 2008 at the NSW RTA Inspection Facility near Twelve Mile Creek in the State of New South Wales ("the premises), being an employer, contravened s 8(2) of the Act in that it failed to: ensure that people other than the defendant's employees, in particular, Michael Webb, were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking whilst they were at the defendant's place of work contrary to section 8(2) of the Occupational Health and Safety Act, 2000. The particulars of the charge are: Particulars of risk 1.As a consequence of the acts and omissions of the defendant, as particularised below, on 14 November 2008 Michael Webb was exposed to a risk of being struck by a heavy combination vehicle, namely a "B-double" consisting of a Kenworth prime mover bearing registration no VV 29 GZ; an A trailer bearing registration no 215 QHY; and a B trailer bearing registration no VT 85 IP, whilst repairs were being performed on that vehicle at the RTA Inspection Facility. The defendant's undertaking 2.At all material times the defendant undertook business as a transport company, including the provision of long haul interstate freight transport services. 3.On 14 November 2008 the defendant, as part of the undertaking of its business as transport company providing long haul and interstate freight transport services was the operator of a heavy combination vehicle consisting of: A Kenworth K104 Model Prime Mover bearing Victorian registration no. VV29GZ; Trailer A being a Maxi-Tran ST3 refrigerated van bearing Queensland registration no. 215QHY; and Trailer B being a Maxi-Tran ST3 refrigerated van bearing Victorian registration no. VT85IT. [the heavy combination vehicle]. Employment 4.At all material times the defendant was an employer. 5.At all material times the defendant employed Gregory Keith Phillips as a driver to drive heavy combination vehicles. 6.On 14 November 2008, whilst in the course of his employment with the defendant, Phillips was the driver in charge of a heavy combination vehicle consisting of the heavy combination vehicle which was grounded and awaiting mechanical repairs at the RTA Inspection Facility, whilst course of a journey from Tingalpa in Queensland to Sydney. Place of work 7.At all material times, the heavy combination vehicle, including its immediate environs at the RTA Inspection Facility, was the defendant's place of work. Particulars of the defendant's acts and omissions Particulars of the defendant's failings in relation to systems of work with respect to the pre-employment screening of employees 8.The defendant failed to provide a system of work with respect to the management of drug usage in relation to the driving, operation and management of its long haul vehicles by persons employed by the defendant to drive, operate and manage those vehicles to ensure that people other than the defendant's employees, in particular, Michael Webb, were not exposed to risks to their health and safety. Measures the defendant should have taken but failed to take with respect to illicit drug management 9.The defendant should have taken, but failed to take, the following measures in order to ensure a safe system of work with respect to the management of drug usage in relation to the driving, operation and management of its long haul heavy combination vehicles by person's employed by the defendant to drive, operate and manage those vehicles: (a)The defendant should have identified criteria relating to driver traffic histories [i.e. records of traffic infringements] against which the histories of applicants for employment as long haul drivers were to be assessed prior to employment for the purposes of identifying: (i)applicants who were unsuitable for employment as a long haul heavy combination vehicle driver; and (ii)applicants who, if employed, would require additional monitoring for compliance with traffic rules and regulations. (b)The defendant should have identified criteria relating to drug usage which the traffic and criminal histories of applicant's for employment as long haul drivers were to be assessed prior to employment for the purpose of identifying: (i)applicants who were unsuitable for employment as a long haul heavy combination vehicle driver; and (ii)applicants, who if employed, would require additional monitoring for illicit drug use. (c)The defendant should have assessed all long haul applicant driver traffic histories against the identified criteria with respect to traffic histories and/or criminal histories prior to employment for the purpose of identifying: (i)whether applicants were unsuitable for employment as a long haul heavy combination vehicle driver; and (ii)applicants, who if employed, would require additional monitoring for compliance with traffic rules and regulations. (d)The defendant should have required all applicants for employment as long haul drivers to undergo a full pre-employment medical examination, including testing designed to identify illicit drug usage; (e)The defendant should have identified criteria pursuant to which applicants for employment as long haul drivers who tested positive for usage of illicit drugs and/or who were assessed by an appropriately qualified medical practitioner as showing signs or symptoms of illicit drug usage were to be assessed by the defendant for the purpose of identifying: (i)whether those applicants were unsuitable for employment as a long haul heavy combination vehicle driver; and (ii)applicants, who if employed, would require additional monitoring for illicit drug use. (f)The defendant should have assessed all applicants for employment as long haul drivers who tested positive for usage of illicit drugs and/or who were assessed by an appropriately qualified medical practitioner as showing signs or symptoms of illicit drug use against the defendant's criteria for the purpose of identifying: (i)whether those applicants were unsuitable for employment as a long haul heavy combination vehicle driver; and (ii)applicants, who if employed, would require additional monitoring for illicit drug usage. (g)The defendant should have performed annual medical examinations, including testing for use of illicit drugs in accordance with a program designed by a medical practitioner or other person with expertise in the design of drug screening programs for all persons employed by the defendant who were assigned to long haul driving duties. (h)The defendant should have performed random testing, in accordance with a program designed by a medical practitioner or other person with expertise in the design of drug screening programs, for the purpose of monitoring all persons employed by the defendant who were assigned to long haul driving duties for use of illicit drugs. (j)The defendant should have performed additional monitoring, including regular scheduled medical examinations and drug testing, of employees identified by the defendant as requiring additional monitoring for illicit drug usage. (j)The defendant should have had in place a system for disciplining, including termination of the employment, of long haul drivers who tested positive for the use of illicit drugs whilst in control of the defendant's long haul heavy combination vehicles. (k)The defendant should have screened Phillips' traffic and criminal histories, as disclosed by Phillips at or about the time that Phillips commenced employment with the defendant for the purposes of ascertaining: (i)whether Phillips was unsuitable for employment as a long haul heavy combination vehicle driver; (ii)whether Phillips, if employed, would require additional monitoring for illicit drug use. (l)The defendant should required Phillips to undergo a pre-employment medical examination, including screening for illicit drug use. (m)The defendant, upon employing Phillips as long haul driver, should have instituted a monitoring program for illicit drug usage which included: (i)regular, scheduled screening tests for illicit drug usage; (ii)random screening tests for illicit drug usage; and (iii)a program of performance management, for the purposes of monitoring Phillips performance for signs of illicit drug usage. (n)The defendant should have had in place and enforced a proper fatigue management system, particularised below, so as to reduce the risk that its long haul drivers would use illicit stimulants to offset fatigue. Particulars of the defendant's failings in relation to systems of work with respect to fatigue management 10.The defendant failed to provide a system of work with respect to the management of fatigue associated with the performance of long haul driving duties, including the driving, operation and management of long haul heavy combination vehicles, in relation to its employed long haul drivers, including Gregory Phillips, to ensure that people other than the defendant's employees, in particular, Michael Webb, were not exposed to risks to their health and safety. Measures the Defendant should have taken but failed to take with respect to fatigue management 11.The defendant should have taken, but failed to take, the following measures in order to ensure a safe system of work with respect to fatigue management in relation to the driving, operation and management of its long haul heavy combination vehicles by person's employed by the defendant to drive, operate and manage the defendant's long haul heavy combination vehicles: (a) The defendant should have verified driver compliance with the defendant's Fatigue Management policies and systems, prior to allocating long haul driving duties, including the allocation of the subject trip to Gregory Phillips. (b) The defendant should have verified driver compliance with regulatory requirements governing working hours and mandatory rest periods, prior to allocating long haul driving duties, including allocation of the subject trip to Mr Phillips. (c) The defendant should have maintained accurate records of Gregory Phillips' driving hours and rest breaks, including the defendant's Daily Movement Sheets. (d) The defendant should have notified its supervisory staff of driver details relevant to the monitoring and enforcement of the defendant's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, as part of the process of allocating long haul driving duties, including allocation of the subject trip to Gregory Phillips. (e) The defendant should have utilised information available from the GPS vehicle tracking system attached to its long haul vehicles, including the subject heavy combination vehicle, to monitor and enforce compliance with the defendant's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, prior to allocating long haul driving duties, including the allocation of the subject trip to Gregory Phillips. (f) The defendant should have utilised information available from the GPS vehicle tracking system attached to its long haul vehicles, including the subject heavy combination vehicle, to monitor and enforce compliance with the defendant's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, in the course of long haul driving duties, including monitoring and enforcing compliance by Gregory Phillips with the defendant's Fatigue Management policies and systems, including compliance with relevant regulatory requirements governing working hours and mandatory rest periods, in the course of the subject trip. (g) The defendant should have developed and provided its employees with a written, integrated Fatigue Management system, such as the system set out in the Intercoast Refrigerated Transport Pty Ltd Fatigue Management Manual dated 16 February 2009 [Code: FMM. Version: 1] (h) The defendant should have developed and enforced Fatigue Management Control Procedures, including Fatigue Control Procedures of the type set out in the standard operating procedure entitled "Intercoast Refrigerated Transport Pty Ltd Standard Operating Procedure Fatigue Management" dated 16 February 2009 [Code SOPSDP. Version: 1], including: (i)detailed employee induction to ensure that all drivers and employees involved in the defendant's fatigue management process were aware of relevant policies, requirements, systems and controls; (ii)the preparation of detailed trip plans for each manifest for the purpose of verifying prior to the commencement of the subject trip that: the trip can be completed within a legal timeframe with the necessary on route rest breaks clearly identified and scheduled; and the driver to whom it is proposed to allocate the trip has had the required rest breaks prior to commencing the trip; (iii)written pre-trip verification by the allocated driver that the driver is fit and has had the required rest breaks prior to the commencement of the trip; (iv)maintenance of written, accurate dispatch records, such as the defendant's Daily Movement Sheets, verifying pre-sending rest breaks, departure time and any pre-directed rest breaks necessitated by limited driver hours; (v)monitoring by management of the allocation of long haul driving duties in accordance with a fatigue management checklist, such as the Checklist for NSW Basic Fatigue Management; (vi)monitoring of driver fatigue management overnight, including the use of GPS tracking information, for the purpose of ensuring compliance with the defendant's Fatigue Management system and the relevant regulatory requirements governing working hours and mandatory rest periods. (j)The defendant should not have assigned Gregory Phillips to drive the subject vehicle from Tingalpa to Coffs Harbour on that day without Gregory Phillips taking the break from driving and related duties necessary to achieve compliance with the relevant regulatory requirements. Particulars of the defendant's failings in relation to systems of work with respect to the conduct of roadside repairs 12.The defendant failed to provide a system of work in relation to the performance of roadside service and/or repair of the defendant's long haul heavy combination vehicles to ensure that people other than the defendant's employees, in particular, Michael Webb, were not exposed to risks to their health and safety. Measures the defendant should have taken but failed to take with respect to the conduct of roadside repairs 13.The defendant should have instructed its employees, including Gregory Phillips, that long haul drivers were not to participate in the roadside servicing and/or repair of the defendant's long haul heavy combination vehicles. 14.Further, the defendant should have instructed its employees, including Gregory Phillips that long haul drivers were to remain clear of the vehicle and not to approach the vehicle whilst roadside servicing and/or repairs were being conducted. Particulars of the defendant's failings in relation to information, instruction and training re fatigue management 15.The defendant failed to provide such information and instruction regarding fatigue management to its employees undertaking long haul driving duties, including the driving, operation and management of the defendant's long haul heavy combination vehicles, to ensure that people other than the defendant's employees, in particular, Michael Webb, were not exposed to risks to their health and safety. Measures the defendant should have taken and failed to take with respect to information, instruction and training re fatigue management 16.The defendant should have taken but failed to take the following measures in order to ensure that such information and instruction regarding fatigue management as was necessary was given to its employees: (a) The defendant should have provided its employees with detailed induction training in relation to an integrated fatigue management program; (b) The defendant should have instructed its operations staff, including but not limited to Troy O'Brien, the Depot Manager at Tingalpa, to verify driver hours prior to the allocation of long haul driving duties utilising the Activity Report information available from the defendant's GPs tracking of its long haul heavy combination vehicles; (c) The defendant should have instructed its employees assigned to monitor long haul drivers overnight to verify driver compliance with the defendant's fatigue management procedures; (d) The defendant should have instructed its employees assigned to monitor long haul drivers overnight to verify driver compliance with relevant regulatory requirements governing working hours and mandatory rest periods; (e) The defendant should have provided with the information necessary to enable its employees assigned to monitor long haul drivers overnight to verify driver compliance with the defendant's fatigue management procedures, including compliance with requirements governing working hours and mandatory rest periods, including: (i)dispatch sheets, such as the defendant's Daily Movement Sheets, accurately recording pre-sending breaks, departure times, and details of any pre-determined breaks, including time and location; and (ii)information from the GPS tracking system, such as the GPS Activity Reports. Particulars of the defendant's failings in relation to Supervision 17.The defendant failed to provide such supervision to its employees undertaking long haul driving duties to ensure that people other than the defendant's employees, in particular, Michael Webb, were not exposed to risks to their health and safety. Measures the Defendant should have taken and failed to take in relation to Supervision 18.The defendant should have taken but failed to take the following measures in order to ensure that such supervision as was necessary was provided to employees engaged in long haul driving duties: (a)The defendant should have ensured that operations staff, including Troy O'Brien, the Depot Manager at Tingalpa, did not assign long haul driving duties without verifying that the driver to be assigned was compliant with the defendant's fatigue management policies and systems by reference to: (i)The driver's logbook; (ii)The defendant's driver allocation records; and (iii)The information available from the GPS tracking system. (b)The defendant should have ensured that operations staff, including Troy O'Brien, the Depot Manager at Tingalpa, did not assign long haul driving duties without verifying that the driver to be assigned was compliant with the regulatory requirements governing working hours and mandatory rest periods by reference to: (i)The driver's logbook; (ii)The defendant's driver allocation records; and (iii)The information available from the GPS tracking system. (c)The defendant should have ensured that staff charged with overnight monitoring of long haul drivers verified that long haul drivers were compliant with the defendant's fatigue management policies and systems by reference to relevant records and information including: (i)The defendant's driver allocation records; and (ii)The information available from the GPS tracking system. (d)The defendant should have ensured that staff charged with overnight monitoring of long haul drivers verified that long haul drivers were compliant with the relevant regulatory requirements governing working hours and mandatory rest periods. 19.As a consequence of the acts and omissions of the defendant, as particularised above, on 14 November 2008 Michael Webb was exposed to a risk of being struck by the subject heavy combination vehicle whilst repairs were being performed on that vehicle at the RTA Inspection Facility at Twelve Mile Creek near Hexham in the State of New South Wales. 6Each defendant pleads not guilty to each charge. 7Mr S Crawshaw SC with Ms A Mitchelmore of counsel appeared for the prosecution and Mr M Kimber SC with Mr M Scott of counsel, appeared for the defendant. 8The prosecutor called a number of witnesses including Inspector Batty, Mr Glen Waddingham, Mr Tim Smith, Mr Michael Webb, Dr Peter Hart, Dr Robert Casey, Mr William Chapple, Mr Troy O'Brien, Dr Anup Desai, Dr Judith Perl and Mr David Unicomb. Much documentation was tendered by the prosecutor including the Inspector's Statement of 14 February 2009, Factual Inspection Report of Inspector Batty, photos of the incident, police reports, police statement taken after the incident, manuals, relevant emails, reports of Dr Hart, Dr Casey, Dr Desai and Dr Perl and a number of records of interview with other witnesses. 9The defendants called Dr Graham Starmer as a witness. Much documentation was also tendered for the defendants including two wooden planks, a rubber chock, Mr Webb's statement to the police, a number of photographs, a record of an interview of 12 December 2008 with Mr Webb, reports of Dr Starmer and Dr Gilmore and a document entitled Driving Periods and Breaks.