//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2006] NSWIRComm 328
Industrial Relations Commission (NSW)
2006-07-01
Wright J, Walton J, Sams DP
Original judgment source is linked above.
INTRODUCTION NATURE OF THE INDUSTRY EVIDENCE ON THESE ISSUES The Quinlan Report FURTHER EVIDENCE Drug Usage Excessive hours of work Falsifying log books Speeding Link between remuneration and safety
LEGISLATIVE RESPONSE New South Wales Initiatives Occupational Health and Safety Amendment (Long Distance Truck Driver Fatigue) Regulation 2005 The Hitchcock judgment Federal Initiatives Definition of Long Distance Trip THE APPLICATION JURISDICTIONAL CHALLENGE Conclusion to Jurisdictional issues SAFE DRIVING PLANS BLUECARD TRAINING INDUCTION TRAINING DRUG AND ALCOHOL POLICY NATURE OF INDUSTRIAL INSTRUMENT ORDERS AND DIRECTIONS ANNEXURE A: List of Witnesses ANNEXURE B: Safe Driving Plan (Example)
1 We begin our consideration of this matter by referring to the comments made in the District Court by His Honour Judge Graham in August 2005 when sentencing a long distance truck driver to jail for causing a collision which resulted in the deaths of two persons and the serious injury of another. In Regina v Randall John Harm (unreported, 26 August 2005) His Honour said: The evidence brought before the Court in this case is by no means unique. On many occasions the Courts have heard the same sad litany of explanations for the state of a driver involved in an incident or collision arising out of fatigue, not uncommonly associated with the use of drugs such as amphetamines. Behind that scenario, almost invariably, lies the same explanation. Interstate truck drivers are obliged, as in many respects are their operators, to maintain strict deadlines or timetables which make inadequate allowance for mishaps, delays in loading and unloading and similar incidents of life. Timetables and deadlines which make inadequate provision for rest for drivers, particularly if the deadline is at risk of being missed, and timetables which expect drivers to maintain a pattern of driving overnight from one capital city to another, six nights a week. Over the years, various measures have been implemented with a view to seeking to restrict the effects of such business practices. In the present matter, the statement of facts refers to safety cams and log books. Restrictions on the maximum speed of heavy vehicles have also been implemented. Despite those measures, heavy vehicle truck drivers are still placed under what is, clearly, intolerable pressure in order to get produce to the markets or goods to their destination within a time fixed, not by any rational consideration of the risks involved in too tight a timetable, but by the dictates of the marketplace. Or, to put it bluntly, sheer greed on the part of the end users of these transport services. The time has come when those who are the beneficiaries of the interstate transport industry must take some blame for what happens at the sharp end of the interstate transport industry. The drivers are put under intolerable pressure. They drive when they are too tired, and when that becomes too difficult, they take drugs to try and prolong the state of awakening, albeit with risks that it can impede their concentration and actually make things worse. When a collision occurs, such as happened here, who ends up in the dock? Who ends up behind bars? Not the operators. Not the transport companies. Not the big corporations who are the people who use those transport services. But the driver. It's the driver who goes to gaol. The companies still make the profits. The drivers become another casualty of the heavy transport industry. Their lives are ruined, in many ways just as badly as many of the victims lives are ruined, by the imperative of greed which lies at the heart of the interstate transport industry. Case after case in the Courts demonstrates the inadequacy of the government's response to these problems and the inadequacy of the transport industry's own response to these problems. There is no point having a requirement that log books be kept, if they are not inspected so regularly that a driver would be foolish to omit to make an entry; and the safety cams checked so frequently that a check of a log book, within an hour or so after a vehicle has passed through a safety cam, could reveal whether that log book was properly kept. To the extent that the industry is self-regulated, case after case has demonstrated the abject failure of such a policy. The time has clearly come, in the interests of all Australians, for proper regulation of the heavy transport industry. The industry inevitably contains its own inherent risks. Heavy vehicles are difficult to control. If anything goes wrong mechanically, then the risks of horrendous collisions or single vehicle incidents is high. Australian roads are not the best in the world. The distances which are required to be covered to get goods from one centre, perhaps where they are manufactured or grown, to another centre, where they are sold or processed further, are great in Australia. Inevitably, that itself will create circumstances where fatigue is a significant issue. But not all of these difficulties, not all of these risks, are unavoidable risks. The evidence in this case, and the numerous cases before the Courts, shows that, from the drivers up, everybody is prepared to take risks, to flout the law and place the interests of heavy vehicle truck drivers and other users of the road at great risk by virtue of these practices. 2 His Honour's comments graphically illustrate some of the central issues which lie at the foundation of this matter. Similarly, what is clear from the evidence before us is an appalling and unacceptable culture of disregard for the health and safety of participants in the road transport industry of this State. This culture has, and continues to have, dire implications for the industry at large, road transport drivers - be they employees or owner drivers - and the road travelling public. 3 There is no doubt that the issues identified in this matter attract wide and unprecedented public interest considerations. We would wish to express at the outset, our grave concern at the dimension of the problems which emerged during the course of the evidence. Although, in one sense, this evidence should hardly be surprising or unexpected considering many of the issues raised have been the subject of adverse comment both in this jurisdiction and elsewhere, as the following extracts from decisions referred to us disclose. 4 In his sentencing judgment in Workcover Authority of New South Wales v Hitchcock (2004) 139 IR 439 ("the Hitchcock judgment"), Walton J, Vice-President said (at paragraph [1]): 1 By the ordinary principles of sentencing, this case calls for a severe penalty. Not only did the Company fail to provide any effective measures to eliminate (or even to reduce) the risk of fatigue for its long-haul truck drivers, its operations exacerbated those risks - sometimes to the point of actual danger - by requiring drivers to meet delivery deadlines (no doubt in response to customer demands), ultimately leading to a man's death. The risks of fatigue were well-known in the trucking industry and capable of remedy by simple measures some of which were required by regulations enacted for this very purpose. The seriousness of these offences, mitigated to an extent (but not substantially) by subjective factors, demands a sentence which will deter companies from operating under systems which, by failing to manage the risk of fatigue, endanger both their employees and the public of New South Wales. 5 We shall refer in more detail to the Hitchcock judgment later in this decision. 6 In the 2003 inquest into the deaths of three long-distance truck drivers, the Deputy State Coroner, Dorelle Pinch, was asked to identify any common factors that contributed to all three deaths. She found, inter alia: 1. Fatigue
The underlying factor in all three fatalities was fatigue. All three drivers had been driving in excess of the legal hours, not only during the fatal trip but in the days previously as well. Cumulative sleep debt was also a factor in terms of the number of days worked without a break. Supposed rest periods were spent either in loading/unloading the trucks, queuing at docks or making metropolitan deliveries. All three fatalities occurred during the worst fatigue time, midnight to 6 am.
Mr Walsh died at a truck stop from Methamphetamine Toxicity and Mr Supple had a fatal level of Methamphetamine in his blood at the time his vehicle crashed. I am satisfied that the reason both men were using this drug was to alleviate the effects of fatigue. I note that, while Mr Forsyth tested negative to drugs in his system, nevertheless a small amount of Methamphetamine was found in his wallet. I note that tests of Messrs. Supple and Walsh also revealed levels of cannabis. According to the evidence, cannabis is commonly used by truck drivers to help them sleep after they have used Methamphetamine.
The entries in the logbooks of Messrs Forsyth and Supple grossly underrepresented the hours they worked. Of particular concern was the hours recorded as rest when they were actually engaged in other trucking duties such as monitoring the vehicle, queuing at docks, loading or unloading and making other deliveries in the metropolitan area. Yet the entries in the logbooks were never checked by their employers. They were not concerned about deficiencies being discovered in the course of an audit because they were seldom audited. Indeed the first time the logbooks of these two drivers are officially inspected was in the aftermath of their respective accidents.
Mr Walsh was in a separate category in respect of logbooks - he didn't keep one at all.
All of the employer's representatives for these drivers indicated that they did not set deadlines but left it up to the driver. That was done within the context that if the driver couldn't do the delivery because he had reached his legal hours driving limit, the consignor simply went elsewhere. Obviously, when the drivers were being paid on a per kilometre basis they preferred to take the job regardless of the number of hours already worked. The other point is that it was the employers who scheduled the number of days in sequence that the drivers worked.
No medical fitness tests were required for any of these drivers.
7 We stress that all of the major institutions representing interests or regulating activity in the road transport industry - the Transport Workers' Union ("the Union"), various employer organisations, road transport users, operators and Government - recognise and accept that serious health and safety problems exist in the industry. However, the essence of the contest between the parties in this matter, as crystallised during these proceedings, related to the extent to which the Commission should act on the Union's claim and, if so, the most effective means of addressing the problems identified in the proceedings. 8 These proceedings arose from the Union's application for the making of two industrial instruments, an award and a contract determination, with the stated purpose of addressing the serious occupational health and safety issues facing the road transport industry. In short, there are four aspects to the Union's claim: (a) a requirement, in respect of all long distance work as defined, for employers and principal contractors to formulate and apply a Safe Driving Plan, identifying how any long distance trip that is required to be performed can be undertaken safely and legally and the means by which it is remunerated; (b) a regime of accountability with respect to the preparation and enforcement of Safe Driving Plans that applies, as far as is jurisdictionally possible, to all parties at each stage of the contracting chain;
(c) a compulsory basic training requirement for truck drivers in the form of Blue Card training covering occupational health and safety matters, and Induction training covering basic industrial rights and other requirements relating to remuneration, hours of work, rest breaks, safety and the like; and
(d) a requirement that employers and principal contractors be required to implement a drug and alcohol policy. 9 We will outline the claims in more detail shortly. At this stage, we note that the Union has expressed the purpose of each aspect as being to seek to address and rectify specific and recognised occupational health and safety issues in the road transport industry. As already mentioned, we consider that all parties accepted that these issues exist in the industry and the existence of the issues clearly demonstrates, in our view, that the road transport industry is beset with problems that require earnest and deliberate attention. 10 Whilst it is clear that there are absolute obligations on employers under the Occupational Health and Safety Act 2000 ("the OH&S Act") and the NSW Government has taken further steps to address some of the industry's safety problems by recently introducing new regulations, the question arises whether more can be done - particularly in a wider industrial context? This is the critical question to be addressed by us in these proceedings. Before turning to the extensive array of evidence presented, it is instructive to outline the nature and characteristics of the contemporary road transport industry.
NATURE OF THE INDUSTRY 11 The road transport industry has an important feature known as a contractual chain or chain of responsibility. The four tiers of the chain were identified as Head Consignor, Consignor, Transport Operator and Contract Carrier. These were defined in the Union's amended application as: "Head consignor" shall mean any person, not being a transport operator, who enters into a contract with a transport operator under which the transport operator carries freight for the head consignor. Note: the head consignor will usually be at the head of the contracting chain.
"Consignor" shall mean any person, being a transport operator, who enters into a transport contract with another transport operator under which that transport operator carries freight for the head consignor. Note: the consignor may itself be subject to a contractual obligation to arrange for the carriage of the same freight.
"Transport Operator" shall mean any employer or principal contractor engaged in the business of transport of freight by road, or who employs persons or engages contract carriers to transport freight by road.
"Contract Carrier" shall be as defined in s309 of the Act, and includes, where the context requires, a reference to the person driving the contract carrier's truck where the contract carrier is a corporation or partnership.
12 At the top of the contractual chain is the Head Consignor - large companies with very substantial transport requirements - such as Woolworths and Coles. Traditionally, these entities do not undertake transport work directly, but contract out their requirements on a cost competitive basis. The next tier of the chain is the Consignor, the major transport companies such as Toll Transport, Patricks, Linfox and TNT. These entities may utilise their own direct labour or subcontract out the work to the third tier in the chain - the smaller transport companies. These companies may then contract out the work to individual contract drivers or carriers. 13 The Union submitted that while the main problem areas for safety are to be found at the third and fourth levels of the chain, the competitive pressures exerted by the Head Consignors and Consignors mean that these entities must bear some responsibility for the problems which exist down the line. 14 At this juncture, we observe that there is no doubt that these arrangements lie at the core of the safety issues which have been clearly identified in the industry. These issues may be summarised as follows:
(a) driving long and excessive hours, resulting in sleep deprivation and fatigue;
(b) widespread use of illicit drugs to combat the effects of fatigue;
(c) regular and systematic breaches by drivers of the maximum number of hours allowed to be driven each day;
(d) too short rest breaks or breaks are taken in circumstances where the driver does not have a proper opportunity to rest;
(e) working excessive hours encourages falsification of log books; and
(f) speeding is a regular part of the job for long-distance truck drivers. EVIDENCE ON THESE ISSUES
15 A list of the witnesses who provided evidence in the proceedings is to be found at Annexure A. 16 The largely uncontested evidence of Mr Wayne Forno, the Assistant State Secretary of the Union, described the industry in the following terms:
(a) there is widespread non-compliance with award and contract determination provisions and, in particular, underpayment of wages (a view supported by the Executive Director of the NSW Road Transport Association, Martin Iffland); (b) it is not uncommon for transport companies, which themselves would not engage in conduct in breach of industrial instruments, to subcontract work of marginal viability to other transport companies, which are prepared to breach industrial instruments in order to make a profit;
(c) labour costs are the most significant component of transportation costs and there is an inherent incentive to achieve savings through non-compliance with industrial instruments or through the engagement of owner drivers or small fleet owners who are prepared to "do what it takes" to make the work profitable;
(d) the competitive pressures in the long distance sector have resulted in a situation where the major transport operators perform only a fraction of the work in the industry with the rest being contracted out;
(e) most companies performing long distance work resist enterprise bargaining because of the likelihood that an enterprise bargaining arrangement will price them out of the market by requiring the payment of labour costs measured against yardsticks other than that of financial viability;
(f) there is a link between remuneration and safety issues such as excessive hours of work;
(g) commercial pressures, most notably from major retailers, have intensified, resulting in the major transport companies tendering for contracts at very low rates and leading to the result that they subcontract out any work that they cannot perform profitably. Commercial pressure is also exercised by major retailers in the form of directed delivery schedules placing stress and, at times, unrealistic expectations on the driver actually performing the work;
(h) major retailers refuse to take responsibility for the consequences of the time restrictions that their delivery systems impose on subcontractors and major transport operators themselves contract out responsibility for the work and yet resist being called to account when things go wrong further down the chain;
(i) the transport industry is characterised by chains of successive contracting out of work with commercial power decreasing with each successive step; and (j) those higher up the chain often contract out work for the express reason of transfering responsibility for the safe performance of the work to others.
17 The Union's application relied, to a significant extent, on the findings of a 2001 Inquiry into safety in the long haul trucking industry ('the Quinlan report') undertaken by Professor Michael Quinlan. Professor Quinlan was called as an expert witness in occupational health and safety and, in particular, to give evidence about his 2001 Inquiry. 18 The Quinlan Inquiry was commissioned by the then Motor Accidents Authority of New South Wales and its terms of reference were: 1) Impact of clients' and consignors' requirements on the drivers including: · Industry tendering practices; · Transport contracts between road transport companies and major clients; · Methods of pricing; · Lack of client responsibility for driving hours, driver performance and remuneration for drivers; · Clients/consignor requirements as to delivery times.
(a) What evidence exists, if any, regarding the nature and extent of health and safety problems in the long distance sector or of the transport industry?
(b) What evidence exists, if any, regarding the nature and extent of crashes involving heavy vehicles in NSW?
(c) What evidence exists, if any, about the relationship, if any, between commercial and/or industrial practices and safety in the transport industry?
(d) What evidence exists, if any, regarding the relationship, if any, between pay levels and/or systems of remuneration and safety outcomes in the transport industry?
(e) What evidence exists, if any, regarding the adequacy or otherwise of current forms of regulation in ensuring the safety of truck drivers?
(f) What evidence exists, if any, regarding the measures necessary to ensure/improve safety outcomes in the transport industry? 20 In his affidavit evidence Professor Quinlan summarised his findings as follows: 13. The Inquiry I undertook in 2000/1 identified considerable evidence of serious health and safety problems in the long distance trucking industry. This evidence extended well beyond the crash-related injuries that attracts most public attention, including health problems, psychological wellbeing and exposure to occupational violence. I devoted just over 60 pages of my final Report to presenting this evidence. I identified a number of areas (particularly those relating to health effects, premature death/suicide and work/family balance) where available evidence was sufficiently troubling to indicate more research was needed. These gaps suggested the evidence I presented might actually understate the extent of serious health and safety problems in the industry. Summarising the available evidence I made the following points. 14. Compared to other modes of transport or other industries more generally, long distance road transport has a poor safety record. Truck driving remains one of the most dangerous occupations and these risks extend, in a substantial way, to other road users.
the Inquiry collected evidence of serious risks to health and safety, including excessive hours of work and other dangerous practices. (16.1) As indicated in the recent federal House of Representatives Inquiry, long hours of work and fatigue remain a significant concern in the long haul industry, increasing the risk of collisions and having other health effects. For the years 1993 to 1998 the RTA has estimated that fatigued heavy truck drivers accounted for an annual average of 80.8 casualty crashes (or 7.6% of the total annual average casualty crashes involving heavy trucks) in NSW and fatigued articulated truck drivers accounted for 58.7 (or 5.6% of average annual casualty crashes involving heavy trucks) casualty crashes. The RTA identified an upward trend in both the numbers of crashes and casualties over time. These concerns are echoed in a recent national survey of fatigue amongst 1,000 long distance drivers undertaken by Dr Ann Williamson and colleagues and benchmarked against an earlier (1991) survey. The survey found there had been increase in the work required of long distance drivers, entailing longer trips and with a reported earlier onset of fatigue. Most drivers did some midnight to dawn driving (when there are far higher risks of crashing), over 20% had exceeded the 72 hour working hour limit in the last week and around a quarter admitted breaking driving hours regulations on every trip. In short, many drivers work excessive and dangerous hours and the situation is if anything, getting worse. Long hours also make it very difficult for drivers to juggle work and family commitments. (16.2) A direct consequence of the long hours worked by drivers is resort to stimulant drugs. Drivers use drugs not for pleasure but to combat fatigue and stay at the wheel longer. Although the precise level of drug use in the long distance trucking industry is unknown, the evidence available to this Inquiry leads to a firm conclusion that it is widespread. The Peak Hill incident in 2000 (a police raid on a major drug distribution network for truck drivers) is indicative of the elaborate supply chains that service this use. More to the point, aside from serious long-term health effects, the consequences of drug use by drivers has been graphically illustrated by the tragedies at Cowper (NSW) in 1989 and Blanchetown (South Australia) in 1996. Drugs are a long-term feature of the industry and are structured into the work process in a way that can be found in no other occupation (except perhaps prostitution). This situation cannot be permitted to continue. (16.3) Speeding heavy vehicles are significantly over-represented in crashes. Despite the use of speed limiting devices, speeding by long distance trucks remains widespread, with RTA detection using Culway sites indicating that the proportion of trucks exceeding the speed limit ranges from 30 to 50%, depending on the route/highway. The Inquiry received considerable evidence to show that speeding trucks represented a pervasive and serious safety issue. (16.4) In addition to these issues the Inquiry received evidence on a range of other safety and health issues including overloading of trucks, inadequate load restraint, poor vehicle design/configuration and maintenance, excessive noise, vibration and exposure to hazardous substances (chemicals, fumes and particulates), inadequate rest areas and roadhouses, poor work/family balance, hazardous loads as well as hazards associated with subcontracting/labour hire. Logistical constraints meant I was unable to explore all these issues to the extent I would have liked, although most appeared serious enough to warrant further investigation. For example, submissions from drivers and their partners that inadequate time spent with families due to extended hours were a serious threat to driver wellbeing was supported by evidence from the survey of 300 drivers conducted for the inquiry.
... (56.1) The Inquiry I undertook in 2000/1 identified an array of significant OHS problems in the road transport industry, not simply crash-related injuries. There was evidence that workers' compensation data seriously understated these problems. Although a number of OHS indices require further research (such as those relating to long term health effects, wellbeing/family/work balance and suicide/premature death) I think it is fair to say the available evidence indicates that the industry has a poor OHS record (matching evidence for the industry in the USA and Europe). Information I have collected since I undertook the Inquiry would suggest that, overall, there appears to have been no significant improvement in this situation in the last four years. (56.2) The Inquiry I undertook collected considerable evidence (both in terms of submissions and independent research), the weight of which suggested that the intensely competitive nature of the industry and commercial and industrial practices (widespread use of elaborate subcontracting chains involving small firms and owner-drivers; scheduling, price and other pressures [delayed payments and delays at warehouses etc] from industry clients, and widespread use of trip-based payments as well as award evasion) was a major structural source of dangerous and unhealthy practices in the industry (including excessive hours, speeding, drug use and cuts to vehicle maintenance). Although there are differences between the industry here and the USA, New Zealand and Europe information I was able to obtain suggested essentially similar issues were adversely affecting road transport OHS in these countries. Again, information collection and collaboration with overseas researchers since the Inquiry has reinforced rather than undermined this interpretation. (56.3) The Inquiry I undertook identified a number of serious deficiencies in the regulatory framework that ostensibly sought to safeguard the health, safety and wellbeing of truck drivers (and other road users) including a lack of coordination amongst key agencies; a tendency to address symptoms rather than underlying structural risks (and key decision-makers); a lack of resources and strategic focus in enforcement; and a flirtation with voluntarist measures that had conspicuously failed in the past. My recommendations sought to better coordinate the overlapping regulatory regime, make more use of OHS legislation, provide tools for more effective and encompassing monitoring of the behaviour of drivers, operators and clients, address neglected issues in relation to entry/continuance in the industry and ensure uniform standards that did not compromise safety, and to ensure these measures were supported by adequate and targeted enforcement activities. Since the Inquiry Report was released a number of measures have been undertaken that address in part some of these recommendations. However, while several are important the most measures (sic) are yet to be addressed in any sustained way. Others have pointed to the failure to address underlying structural issues, including Deputy State Coroner Dorelle Pinch (2003). (56.4) In my view, the present claim for new award provisions picks up a number of these issues and in so doing would help bring about positive changes to OHS in the long haul road transport industry. The claim addresses a number of matters that my Inquiry and subsequent research identified as of particular importance to better safeguarding the OHS of truck drivers and the safety of other road users (or persons coming into contact with trucking activities, notably: (56.4.1) Measures to ensure safety is not compromised due to under-payment of employee and contract carriers. (56.4.2) Measures to better ensure that consignors, consignees, the union and others (aside from transport operators and employees) take responsibility for OHS. In my view, the claim would reinforce and make more effective other regulatory measures aiming to implement 'Chain of Responsibility" (COR) in the road transport industry.
(56.4.3) Importantly, the award provisions seek to implement the use of safe driving plans very much in accordance with the recommendations of my Inquiry (covering matters such as remuneration, trip times and loading schedules identified as critical to OHS). Providing a mechanism that will, in my view, prove far more effective than the widely discredited logbook system and provide an enforcement tool/contractual tracking mechanism to implement COR is especially vital. Linking this to existing award determinations on pay is an added advantage as is enabling the union to monitor compliance with the scheme. (56.4.4) I would also support the introduction of a 'bluecard' program if this is designed to ensure all drivers (employee, labour hire or contract carriers) receive some training and induction into the industry (including OHS). (56.4.5) The introduction of a drug and alcohol policy by all transport operators also has considerable merit as I believe it will assist in combating drug-abuse in the industry, making it clear that the use of stimulants is not an acceptable form of fatigue management and making it harder for some operators to tacitly condone such practices.
21 Associate Professor Anne Williamson was the Deputy Director of the NSW Injury Risk Management Research Centre at the University of New South Wales. Associate Professor Williamson gave evidence in the Hitchcock matter, and she also gave evidence during the proceedings as to the various studies which have compared the effects of sleep deprivation and fatigue with those of alcohol. She deposed that the problem for road safety of fatigue is of a similar magnitude to drink driving and that long-distance drivers who may be awake for long periods are likely to be at high risk of fatigue affecting their performance. We accept Professor Williamson's evidence. Drug Usage
22 Two national surveys in 1991 and 1998 recorded that the use of 'stay awake' or stimulant drugs was cited by drivers as one of the two most helpful strategies for managing fatigue. Professor Quinlan's inquiry found that while the precise level of drug use in the long-distance trucking industry was unknown, the evidence led to a firm conclusion that it was widespread. He noted that prolonged sleep deprivation/fatigue and drug use may not only increase the risk of truck crashes but also will have long-term health effects on the drivers affected. 23 Of the 13 driver witnesses, a number openly admitted using stimulants to help them work; others gave evidence of having conversations with other drivers about the use of illicit drugs while working; three drivers spoke of management knowing or encouraging the use of drugs during the course of performing their work.
24 All drivers gave evidence that they had breached the maximum number of hours drivers are allowed to work. It was conceded that this occurred on a regular and systematic basis. Drivers reported working between 80 - 100 hours each week, sometimes working 14 - 20 hours a day without breaks. One driver described his normal week as follows: All up, I usually worked around 18 to 19 hours each day. I worked five or six days per week, doing five or six full return trips each fortnight, depending on whether or not they could get me loaded on Saturday. Usually, I would leave home on Sunday afternoon and travel overnight to Brisbane, load all day Monday and travel back to Sydney Monday night. I would repeat this twice more before getting home Saturday morning. Sometimes, I would not get home until the Monday after that. I would not get home at all mid-week. 25 Some drivers gave examples of extreme breaches of driving hours: 85 hours in a 120 hour period, 20.5 hours in 24 hours, 30 hours in a 32 hour period and 53 hours without a break. 26 When taking breaks, the drivers' evidence was that it was often too short or taken in situations where the driver was deprived of a proper opportunity to rest. Other factors referred to as inhibiting proper rest were lack of heat and space in sleeper cabins and interruptions during rest time where rest was taken in the depot while waiting for more work. 27 Other drivers reported on the pressure they were under from management to work extreme hours including threats and financial penalties. Drivers reported that they became abusive and aggressive when placed under this pressure. Falsifying log books
28 As a consequence of working excessive hours there was widespread evidence of drivers falsifying log books in order to keep legal records required by the Road Transport (Safety and Traffic Management) (Driver Fatigue) Regulation 1999 ("1999 Regulation"). 29 Some of these measures included:
(a) not recording the beginning or end of trips; (b) recording time spent performing pick ups or deliveries as breaks;
(d) using another driver's details to claim that there was a second driver in the truck;
(g) falsifying the place of depot so as to avoid having to carry a logbook at all.
30 Other drivers found it preferable to carry no log book at all. There was evidence of managers encouraging drivers to falsify log books or management's disinterest in whether log books were correctly entered. Speeding
31 The evidence disclosed that speeding is a regular part of the job for long-distance truck drivers and drivers found ways of avoiding detection such as the use of radar detectors, distorting number plates, turning off lights, or "tailgating" other trucks to avoid detection by cameras. 32 The effects of these driving practices on the health, safety and well-being of drivers was described both in expert evidence and directly in the evidence of the drivers. Drivers reported the effects of long hours as akin to hallucinating or being drunk. The effects of the widespread use of illicit drugs are self-evident. Drivers reported traumatic health problems and pressure on families and personal relationships. Link between remuneration and safety
33 In the 2003 Deputy State Coroner's inquest referred to earlier, the following observation was made (emphasis added): My main areas of concern arising in the Inquests, namely, working hours, fatigue and drug use are to the forefront of current policy discussions and proposals. However, as a general observation, it seems to me as if the focus is on finding solutions to the symptoms of the basic problem rather than dealing with what I perceive to be the underlying problem. As long as driver payments are based on a (low) rate per kilometre there will always be an incentive for drivers to maximise the hours they drive, not because they are greedy but simply to earn a decent wage. I anticipate that this incentive will remain an overriding concern for drivers irrespective of legal and safety considerations. This is obviously a structural matter for the road transport industry that has already been placed on the agenda by Professor Quinlan. However, structural changes do not feature prominently in current initiatives as far as I can ascertain. 34 We consider that the evidence in the proceedings establishes that there is a direct link between methods of payment and/or rates of pay and safety outcomes. We shall refer to the submissions of the Union in this regard: The evidence has shown a direct link between the rate of pay and/or the method of payment on the one hand and safety outcomes on the other. The uncontested evidence of Associate Professor Michael Belzer [Ex 45] in the context of long distance trucking in the United States is that driver pay has a strong effect on safety outcomes [Ex 45, p 15]: " Higher pay produces superior safety performance for firms and drivers. The precise driver-level study of Hunt suggests this relationship may be as high as 1:4 ." He also concluded, on the basis of a survey based on self-reported driver crashes in the sector, that "… every 10% more that drivers earn in pay rate is associated with an 18.7% lower probability of crash, and for every 10% more paid days off the probability of driver crashes declines 6.3% ." [Ex 45, p 105]. Belzer also examined, using an extensive driver survey, the relationship between the rate of remuneration and hours worked [Ex 45, p 11]. Referring to the results of this survey, he stated [at p 104]: "Our measurement supports the hypothesis that drivers have target earnings and drivers paid lower than average seek to achieve earnings of about $750 per week by increasing their hours, in confirmation of the "sweatshop" hypothesis." 35 And [at p 59]: "This can be explained by the idea that once drivers are paid a high enough rate and are already working long hours, further increases in the mileage rate are used to 'buy' more time off rather than purchase more goods and services. This also may be explained by joint decisions of drivers and firms at higher or lower rates of pay: firms that pay a high rate of pay may systematically prefer that their drivers obey the hours-of-service regulations, while firms that pay a low rate of pay may recognize that their drivers cannot make a living working no more hours than the regulations allow, and may encourage or coerce them to work more hours and drive more miles. The point estimates indicate that if the mileage rate were to increase to $0.37 per mile, drivers would reduce their weekly hours to be in compliance with the current regulations. At this rate, drivers are being compensated at a rate sufficient for them to be able to satisfy their income requirements without being induced to work in excess of those mandated by law." Belzer also examined the effects of method of pay on safety. At [Ex 45, pp 52-54] he stated: "Another compensation issue that can influence driver behavior is the common practice to either underpay or not pay at all for non-driving time. This is particularly true for time spent loading and unloading, which represents a significant proportion of working time, according to results from the UMTIP Drivers Survey. When drivers are not paid or are underpaid for loading and unloading, there is an incentive to underreport this unpaid time in order to drive for more hours …...This incentive exists even if there is some compensation for loading time, as long as it is less than the amount paid for driving." Given the obvious geographical and market similarities between the United States and Australia, it is unsurprising that examination of these issues in the Australian context delivers the same type of conclusions. Professor Michael Quinlan, in his principal statement in the proceedings [Ex 14], cited research indicating the primacy of contingent payment systems in the road transport industry in Australia: [Ex 14, pp 18-19]. In particular he noted that the research found that trip and performance-based payment systems (as opposed to the more traditional hours and overtime method) were applied to the vast majority of drivers 82.3%. Quinlan summarised Australian research of Williamson et el (2000) which found that drivers paid in a payment-by-results mode were more likely to report fatigue and that such systems can be seen as an influence on drivers to break working hours regulations: [Ex 14, p 20]. Quinlan also highlighted study finding association between payment by results and increased use of stimulant drugs [Ex 14, p 20]. The conclusion that there is an association between payment and safety was acknowledged by the two NSW Road Transport Association officers who gave evidence as follows: (i) Rod Grace, Employment Relations Manager, New South Wales Road Transport Association [T 458]:
"Q. Can I give an example. If a company operates a payment system which rewards drivers not by time worked, but for the completion of the trip and that system doesn't adequately remunerate the driver for time worked, that might lead to a result where the driver simply tries to complete the work as quickly as he or she can in order to maximise their income. Is that right?
A. That's right, I agree with that." (ii) Hugh McMaster, Corporate Relations Manager, New South Wales Road Transport Association [T 529-530]: "Q. And you would agree with me that Mr Sheldon drew it directly between rates of remuneration and safety issues? A. Yes I do. Q. And among other things he said this, "The lowest price means the ... in case of long distance"? A. Yes.
Q. And you agree with that as a proposition? A. By and large I do yes. It's not as simple as that but I think there certainly is a connection between low price and lower safety standards." The general evidence from Forno evidence about the link between remuneration and safety issues such as excessive hours of work was uncontradicted [Ex 21, pars 16-17, 19]: "In my experience, there is a direct linkage between underpayment of remuneration and safety issues. This arises because drivers who are underpaid (in the case of employees) or not provided with a rate which allows for cost recovery and a decent return (in the case of owner drivers) will often either succumb to pressure or simply agree to work excessive hours in order to boost their remuneration.
Some systems of remuneration provided for in awards, such as the kilometre basis of payment provided for in the Federal Award and in the long distance section of the State Award, even if complied with, will if used irresponsibly by employers encourage unsafe practices. A driver who is being paid a fixed rate for, say, a Sydney-Brisbane-Sydney trip, irrespective of the time it takes to perform it, will have a natural incentive to finish the trip as quickly as possible and will often do so in the absence of appropriate employer monitoring. This will particularly occur when, as often happens, the employer pays the correct trip rate but does not pay the hourly rate for loading and unloading time at either end. Because of multiple drops, queuing at client premises and the like, large amounts of time will usually be spent by drivers loading and unloading, in addition to driving time. If employees are not properly remunerated for such time, they tend to try to cut corners on driving time (either by speeding, and/or, more commonly these days, by failing to take the required or any rest breaks), in order to get back to perform further work." The vast majority of the driver witnesses indicated that they and/or others they worked with did not get paid for time spent loading and unloading after long distance trips [Ex 10, par 19; Ex 32, par 12; Ex 17, par 52; Ex 27, par 21 & Ex 46, par 14]. A common theme throughout the driver evidence (both employee and owner-driver) was that award kilometre rates were paid, but only so far as the GPO of the city to which they were travelling. The kilometres travelled once in town in order to perform the necessary deliveries and pick ups were not counted for the purposes of calculating remuneration, effectively equating to a system of flat "trip rates" which remained static irrespective of the actual distance travelled or time taken to perform the work [Ex 8, pars 30, 32 and 34; Ex 10, pars 7, 8, 10-12; Ex 11, pars 11, 15, 16, 20 and 22; Ex 12, pars 6-7; Ex 46, par 23 and Ex 48, par 24]. This amounted to several hours of unpaid work in most instances and in some cases entire days of work that were unpaid. A number of the drivers also gave evidence of being paid below-award rates [Ex 12, pars 30, 32-34; Ex 32, par 12]. Owner-drivers were particularly vulnerable to this sort of exploitation, being too scared to confront management about it in case they were not given any more work [eg Ex 27, par 22]. However, employee drivers did not necessarily have any more success in persuading the employer to pay the correct rates, with the evidence disclosing the attitude of one employer as follows [Ex 17 par 67]: "The award does not apply to us. You are employed under my conditions." In some instances, drivers found that companies were either unable or unwilling to pay them. Ireland stated that he was engaged to perform work on several occasions by companies that when asked for money replied that they were insolvent and others that would only pay the money they owed him once threatened with violence [Ex 28, par 46]. LEGISLATIVE RESPONSE
36 All of the evidence we have earlier recited was largely uncontested and we accept the nature and dimension of the health and safety problems which beset the industry. What has been done to address these problems?
37 The general thrust of the employers' opposition to the Union's claims hinged on the argument that the existing OH&S Act and associated regulations, particularly the Occupational Health and Safety (Long Distance Truck Driver Fatigue) Regulation 2005, were sufficient to address the safety problems in the industry. It was argued that the existing legislation makes the grant of the Union's claims both unnecessary and confusing for the industry and may lead to even more breaches of the regulations as drivers seek to avoid duplication and unnecessary paperwork. 38 In addition, the employer respondents pointed to pending federal initiatives which also make the grant of the Union's claim at best, premature, and more likely, unnecessary. 39 It was further argued that the recent decision of the Court in Hitchcock set a new and higher benchmark in the industry which has received widespread acknowledgement and support and which has focussed, more acutely, the industry's attention on safety issues. Moreover, WorkCover have a further 25 prosecutions pending of the Hitchcock type. 40 It is therefore appropriate to set out the basis of these arguments in some detail. New South Wales initiatives
Occupational Health and Safety Amendment (Long Distance Truck Driver Fatigue) Regulation 2005 ("The 2005 Regulation")
41 During the proceedings, considerable attention was given to the introduction by the New South Wales Government on 1 March 2006 of the 2005 Regulation. 42 The 2005 Regulation, made under the OH&S Act, was introduced after extensive consultation with the industry stakeholders. All parties have welcomed the 2005 Regulation, although as we shall discuss later, the Union claims that it is deficient in certain respects. 43 In the Explanatory Note to the 2005 Regulation, the primary objective is expressed as being to reduce: the fatigue of drivers of heavy trucks. In order to do this, this Regulation imposes obligations on an employer whose employee drives a heavy truck that transports freight long distance. Such an employer is required to assess the risk of harm from fatigue to the driver's health and safety and to take steps to eliminate or control that risk. However, the employer is only required to eliminate or control risks to the extent that the employer's activities contribute to that risk. A similar obligation is placed on head carriers and certain consignors and consignees of freight (including their agents and persons acting on their behalf) who enter into a contract with a self-employed carrier for the transportation of freight long distance by means of a heavy truck. Those persons on whom the obligation is placed are also required to prepare driver fatigue management plans for certain drivers and to make those plans available to those drivers. This Regulation also requires certain consignors and consignees of freight (including their agents and persons acting on their behalf) not to enter a contract with a carrier for the transport of freight long distance by means of a heavy truck unless they are satisfied that the delivery timetables are reasonable and that each driver who will transport the freight long distance under the contract is covered by a driver fatigue management plan.
This Regulation also requires certain documents to be retained for up to 5 years and to be made available to an inspector or an authorised representative of a driver.
This Regulation is made under the Occupational Health and Safety Act 2000, including sections 33 (the general regulation-making power), 34 and 39.
44 Clause 81A of the Regulation contains the definitions in the 2005 Regulation, in particular the definition of long distance, to which we will refer later in this decision. 45 Clause 81B(1) prohibits an employer from causing or permitting its employees to transport freight long distance unless the employer has assessed the risk of harm from fatigue; and unless, to the extent to which the employer's activities contribute to that risk, the employer has eliminated the risk, or (if that is not reasonably practicable) has controlled the risk. The same obligation is placed on head carriers, consignors or consignees when entering into contracts with self-employed carriers, by virtue of clauses 81B(2) and (3). 46 Individual driver fatigue management plans are required by cl 81D of the Regulation. This means head carriers, consignors and consignees must prepare such plans which must address the following matters in cl 81D(4): (a) trip schedules and driver rosters, taking into account the following: (i) times required to perform tasks safely, (ii) times actually taken to perform tasks, (iii) rest periods required to recover from the fatigue effects of work, (iv) the cumulative effects of fatigue over more than one day, (v) the effect of the time of day or night on fatigue, (b) management practices, including the following: (i) methods for assessing the suitability of drivers, (ii) systems for reporting hazards and incidents, (iii) systems for monitoring driver's health and safety, (c) work environment and amenities, (d) training and information about fatigue that is provided to drivers, (e) loading and unloading schedules, practices and systems, including queuing practices and systems, (f) accidents or mechanical failures. 47 A person who prepares a driver fatigue management plan must ensure that their activities are consistent with the plan (cl 6(b)) and must make a copy of the plan available to each driver covered by the Plan (cl 6(c)). Clause 81F requires records to be kept and retained for up to five years and to be made available to an inspector or authorised representative of the driver. The Hitchcock judgment 48 All parties relied on the two recent judgments of Walton J in what are collectively referred to as the Hitchcock judgment (WorkCover Authority of New South Wales v Hitchcock (2004) 135 IR 377 and WorkCover Authority of New South Wales v Hitchcock (2005) 139 IR 439). 49 The judgment concerned two prosecutions brought under ss 15, 16 and 50 of the OH&S Act following the death of a long haul driver, Mr Darri Haynes, after a collision on the Pacific Highway near Grafton on 1 September 1999. At paragraph [3] of the first judgment, His Honour said: 3 The evidence painted a sobering picture of the risk for long distance truck drivers of driving when fatigued, the very real danger attendant upon that risk and of a haulage company which paid little (if any) heed to the risk either to its employed drivers or to anyone else at risk of an accident due to proximity to a fatigued truck driver. On the contrary, as I later find, instead of ensuring against the risk, as it was legally obliged to do under the Act, the systems of work operated by the Company (which did not include any effective fatigue management measures) exacerbated them. A significant part of the defendant's answer to the overwhelming evidence of failures in the Company's systems of work, supported by both the evidence relating to Mr Haynes and the evidence given by other drivers employed by the Company at the time of the accident, was that a risk of fatigue, albeit caused by a failure of the Company, was not enough: the prosecution had failed if it could not establish that Mr Haynes was actually fatigued at the time of the accident. As I discuss later, this contention was wrong in law and principle. Moreover, the evidence ultimately disclosed beyond reasonable doubt that Mr Haynes was fatigued at the time of the accident. 50 At paragraph [12], His Honour records the persons who gave evidence in the proceedings: 12 The court received evidence from four long haul truck drivers (Mr Walker and three former employees of the Company: Messrs McLennan, Jones and Everingham); three police officers (Messrs McFarlane , Clarke and Fennell); Inspector Templeton of the WorkCover Authority of New South Wales ("WorkCover"); four officers of the Roads and Traffic Authority (Messrs O'Neill, Martin, Montgomery and May); Mr Haynes's partner of nineteen years, Ms Campbell; a depot manager, Mr Cooper, of Scotts Transport Industries; and three experts: Dr Judith Perl, consultant pharmacologist; Mr Dick van den Dool, traffic engineer; and Associate Professor Ann Williamson, fatigue expert. 51 His Honour relied on the expert evidence of Associate Professor Williamson in concluding: 42 It is clear from Associate Professor Williamson's expert evidence, and I have no hesitation in finding beyond reasonable doubt, that driving whilst fatigued is a risk to health and safety. In particular, I find that: (a) Long hours of working, especially at night, lead to fatigue; (b) Six hours of sleep during the core period of midnight to 6am (or an equivalent restorative sleep during day time, which may take longer due to the deficiencies of day time sleep) is the bare minimum to manage fatigue appropriately; (c) The high levels of attention required for driving will also contribute to fatigue; (d) Chronic fatigue can develop over a series of long work days in the absence of adequate rest; (e) Sleep is the only way to effectively alleviate fatigue; (f) The most beneficial, restorative sleep is taken between midnight and 6am. Longer periods of day-time sleep are necessary to reduce a build-up of fatigue; (g) Driving when fatigued is extremely dangerous because the skills necessary for driving - paying attention moment by moment - are significantly impaired by fatigue; (h) The nature of fatigue makes this situation even more dangerous: the more tired a driver becomes, the less able they are to respond safely to that fatigue by electing to take appropriate rest-breaks, or to stop; and (i) Fatigued drivers have a higher risk of crashing. 52 Walton J undertook a detailed examination of Mr Haynes' last week of work and said at paragraphs [160] and [161]: 160 It is important to realise that, during the preceding analysis of Mr Haynes's last week, every assumption was made in favour of the defendant to maximise the calculation of Mr Haynes's opportunities for rest. No allowance was made for queuing (despite the consistent evidence of three other drivers employed by the Company that this was a frequent, time-consuming part of their work during which sleep was not possible), nor was anything other than the minimum (the time nominated by the Company, except in the case of bricks from a yard) allowed for loading and unloading, despite the evidence of Associate Professor Williamson, based on two national surveys of 1,000 truck drivers, that drivers spend on average between five to nine hours a day loading and unloading. No allowance was made for other necessary work, such as time spent making or receiving work telephone calls, completing paperwork, and inspecting the truck. Finally, no allowance was made for necessary personal activities such as eating, grooming, washing, and, given the weekly long absences from home, talking to family and friends from time to time. I reject the suggestion in the defendant's submissions that such telephone calls were a luxury that should never have been given precedence over sleep and note that many of them appear to have been made or received while Mr Haynes was driving. 161 Notwithstanding these unrealistic assumptions (when applied unremittingly over seven days), and despite my acceptance that Mr Haynes's rest period of 24 hours on Saturday 28 August 1999 cancelled all fatigue which may have accrued, in my detailed analysis of one week of Mr Haynes's employment with the Company (which no-one suggested was anything other than typical in terms of work loads and practices), I have found (at paragraphs [91], [132] and [133]) beyond reasonable doubt that on two occasions it was impossible for Mr Haynes to have had the requisite 6 hour continuous break in every 24 hour period. Quite the contrary: in both instances, I have found, to the criminal standard, that Mr Haynes was not only at risk of driving when fatigued: he was in fact fatigued and that this significantly impaired both his ability to drive safely, and his ability to respond safely to that fatigue by electing to take appropriate rest-breaks, or to stop. 53 At paragraph 165, His Honour said: Ultimately, of course, the Court must determine whether there was a risk to Mr Haynes's health and safety: I have found (at paragraphs [91] and [132]) that it is indisputable that there was such a risk (the risk of driving when fatigued) on several occasions including at the time of the accident. Moreover, I have found to the criminal standard that Mr Haynes was exposed to danger, not merely a risk: he was in fact fatigued at the time of the accident (at paragraph [159]), and this fatigue could not have been alleviated by four hours of rest that afternoon, even if they were taken without interruption. Whether or not the fatal accident was directly caused by Mr Haynes's fatigue is not determinative of the charges. Nonetheless, having examined the matter in such detail, I will record my conclusions following an overview of the evidence concerning the accident. 54 His Honour referred to the fact that medical evidence disclosed that Mr Haynes' body was later found to contain methamphetamine. Medical evidence from Dr Perl was: 181 Under cross-examination, Dr Perl agreed that methamphetamine was psychologically addictive, and that a long-term user may believe that they had to take the drug in order to stay awake when in fact this may not be the case.
182 According to Dr Perl, during the acute stimulant phase following use of amphetamines there is a marked increase in wakefulness, alertness and euphoria: perceptions and judgements are altered and there is commonly an increase in risk-taking behaviours. High doses lead to hyper-reflexia, restlessness, talkativeness, sleep disturbance and insomnia, headache, hypertension and palpitations. The user may experience hallucinations and paranoid thoughts. When the over-stimulation of the brain wears off there is a reactive depressive stage referred to as "crashing", the most common symptoms of which include extreme fatigue, sleepiness and depression.
183 Methamphetamine can impair driving abilities in two different ways: by impairing judgement and increasing risk-taking behaviour, or due to the fatigue and hypersomnolence as a result of withdrawal. Often, this second stage impairs driving ability to a greater extent than the initial stimulation. The drug-induced fatigue or depression is exacerbated by the natural fatigue the driver was masking in the first place. Like all stimulants, it produces physiological effects such as palpitations and hypertension, thereby increasing the risk of a cardiovascular accident (such as a cardiac arrest or stroke).
184 Dr Perl agreed under cross-examination that even low doses of methamphetamine in some individuals could produce a stroke or some form of a heart attack, and agreed that, given the presence of methamphetamine in Mr Haynes's liver, a cardiovascular accident may have been a factor in the crash. 55 Evidence was also accepted of the driver's payment structure: 196 Finally, the evidence as to the drivers' payment structure was not disputed. They were not paid for washing the truck, queuing to load or to unload, nor for other necessary work activities such as filling up with fuel, inspecting the truck, making telephone calls or completing paperwork. They were paid a fixed rate for each kilometre driven and a pre-determined sum for loading and unloading each load, regardless of how long it actually took. The system provided a clear incentive for drivers to maximise kilometres (this was the only way to increase income) thereby extending driving hours; but little scope for reducing the time taken to perform other necessary work for which they were not paid. Loading, unloading, refuelling and washing the truck necessarily took a certain, substantial, amount of time. Indeed, the only real scope for drivers to reduce this "unpaid" time was to arrive at depots as early as possible to minimise the time spent queuing behind other trucks, thus reinforcing the pattern of driving at night. There was an obvious temptation for drivers to increase their driving hours by reducing their rest hours. Mr McLennan's evidence below illustrates the point well. 56 Walton J found that the Company did not have any real system of fatigue management in place and concluded: 233 I am satisfied beyond reasonable doubt that the Company failed to ensure that driving rosters were prepared which properly or adequately took into account the effect of fatigue and sleep deprivation. I reject the defendant's submission that "the driving duties of Mr Haynes gave him ample opportunities for rest" and that "the court may infer from this that it is implied that the effect of sleep deprivation and fatigue was taken into account". This submission is incorrect for several reasons, some of which I will mention here (noting that my later observations in relation to delivery times also put paid to it): first, it is limited to driving duties - the evidence clearly established that drivers had other, time-consuming work duties (such as loading, unloading, queuing, washing the truck) which must be taken into account when assessing fatigue. So much is apparent from the log-book definition of "work", even without the combined evidence of the drivers and Associate Professor Williamson. Secondly, it is not pertinent whether Mr Haynes had "ample opportunities for rest" (which I do not accept, based on my earlier findings in relation to his last week): the Company could not discharge its duties simply by expecting the drivers to manage their own affairs in compliance with the log-book regime, as I have discussed earlier. Apart from the fact that this proposition is inconsistent with employers' duties for proactive management and supervision of health and safety under the Act, (and I have already noted and accepted Associate Professor Williamson's evidence that fatigued drivers cannot be relied upon to make sensible decisions in relation to rest-breaks), the overwhelming evidence that Mr Haynes was dangerously fatigued on two occasions in a period of just one week shows that whatever the theoretical flaws of self-regulation (which are themselves persuasive), it patently did not work in practice. Rest-breaks were not taken in a manner to prevent or cure fatigue (nor indeed were they required by the supervision or enforcement of an appropriate system) and each driver gave evidence of regularly flouting the breaks prescribed by the log-book regime, as I discuss below. 57 As to the Company's other work practices, His Honour said at paragraph [260]: 260 In summary, I have made the following findings beyond reasonable doubt as to the Company's work practices: that there was no Company policy on driving hours or rest-breaks distinct from the log-book regime; that such policy as there was ("to abide by the log-book") may not have been communicated to the drivers (and if it was, it was in a perfunctory manner at the commencement of employment); that the "policy" was not enforced or supervised; that the Company did not collect any oral information pertaining to driving hours or rest-breaks and did not conduct any review of the relevant written information (the duplicate log-book pages); and that "compliance" with the "policy" such as it was on rest-breaks and limited driving hours was left totally to the drivers in a system which provided incentives (through pay) to increase driving hours. I have further found, beyond reasonable doubt, that the Company did not take into account the effects of fatigue and sleep deprivation when preparing rosters. Finally, I have found that the Company pressured its drivers to meet delivery deadlines resulting in breaches of the log-book regime - either due to specific time slots for particular depots, as mentioned by Mr McLennan, or to Company imposed deadlines to be there early "in the morning" - and that they risked their jobs or income if they failed to comply. This pressure may have been to meet client expectations, or to manage excessive workloads, or a combination of the two; the result was the same. Needless to say, even the most superficial fatigue management system would have picked up the falsified log-books handed in by the drivers, which could not have tallied with kilometres recorded on their daily worksheets or with the deliveries they were directed to make. Clearly, the failures alleged in the particulars relating to rest-stops, driving hours, driving rosters and the Company's system of work have been made out to the requisite criminal standard of proof. 58 At paragraph [262], Walton J concluded: 262 In order to establish liability on these grounds, it remains to consider causation (subject to any defence). I am satisfied beyond reasonable doubt that the Company's failures to ensure that its drivers took sufficient rest-stops; to record and audit driving hours properly; to provide a safe system of work to minimise the risk of fatigue and sleep deprivation; and to take fatigue into account when preparing driving rosters caused the risk to Mr Haynes's health and safety of driving whilst fatigued. The defendant only raised causation in relation to one of these particulars - rosters - in his written submissions, but in my view the causal nexus is obvious. Had the Company taken into account the effects of fatigue and sleep deprivation (armed with accurate information of driving hours and rest-breaks) in accordance with its statutory obligations it would not have allocated work to fatigued drivers. Indeed, this would have been the most effective means of minimising the risk of its employed drivers driving whilst fatigued: withholding work until appropriate rest-breaks had been taken. As Associate Professor Williamson so graphically stated in cross-examination, "You're not going to crash if you're not on the road". 59 His Honour also discussed the Company's training and supervision of its drivers in the following terms (at paragraph [270]): 270 I am satisfied beyond reasonable doubt that the Company's failures to provide information, instruction, training and supervision of its employees (as discussed above) caused the risk to Mr Haynes's health and safety of driving when fatigued. The evidence of Associate Professor Williamson made it clear that drivers suffering from fatigue could not be relied upon to make decision necessary for their safety: it follows that supervision was essential. It was also apparent from her evidence of the manner in which fatigue develops (reaching dangerous levels after just one night of no sleep or interrupted sleep during the core period) and of the effects of fatigue on driving, that training, information and instruction were necessary to impress upon drivers the seriousness of the risk, the importance of taking appropriate rest-breaks to avoid it, and how best to do so. Matters relating to circadian rhythms; optimum times for falling asleep; the varying quality of sleep depending upon when it is taken; and the consequences when driving in the absence of sleep for 18 hours tantamount to driving with a blood-alcohol level of 0.05 are not matters of common knowledge and yet are critical to long distance truck drivers. It may be said to be even more critical for the Company's drivers, who commonly drove a 15 hour route (from Brisbane to Nowra). 60 Finally, at paragraph [291] His Honour held: 291 The facts of this case do not permit a reasonable doubt as to the causal connection between the risk to Mr Haynes of driving when fatigued and the Company's proven failures. The Company's failures to ensure that its drivers (including Mr Haynes) took sufficient rest-stops; to record and audit driving hours properly; to provide a safe system of work; and to take fatigue into account when preparing driving rosters caused the risk to Mr Haynes's health and safety of driving when fatigued in the manner discussed by the Court in WorkCover Authority (NSW) (Inspector Glass) v Kellogg (Aust.) Pty Ltd (No 1) (1999) 101 IR 239 at 253. Implementation of any one of these measures would have had some considerable effect in reducing the risk, and the absence of all of them, in the context of incentives and pressure to drive without appropriate rest-breaks, guaranteed that drivers, including Mr Haynes, worked under the shadow of this risk. Inter-state truck drivers, driving long distances (frequently at night, with the consequences for fatigue described by Associate-Professor Williamson), were necessarily exposed to the risk of becoming fatigued (and therefore the risk of driving when fatigued) in the absence of appropriate fatigue management systems. 61 We observe that the Hitchcock judgment is the seminal case under the Act as it applies to the long distance transport industry in this State. We accept the submissions of the respondent employers that the judgment in Hitchcock has served as a "wake up call" for employers in the industry as to their absolute obligations to provide a safe working environment for their employees when at their place of work; namely, driving trucks. Federal initiatives
62 In February 2006, the National Transport Commission issued Guidelines for Managing Heavy Vehicle Driver Fatigue (Exhibit 62). The voluntary Guidelines were said to be a trial document to be used ahead of implementation of new heavy vehicle driver fatigue laws consistent with current occupational health and safety legislation. It is intended that following the trial, in mid 2006, Australian transport ministers will consider approval of the final package of new laws in late 2006 for implementation in 2007. 63 The intended new laws are proposed to include:
(a) a general duty in road transport law to manage fatigue, consistent with current occupational health and safety laws;
(b) chain-of-responsibility provisions extending to parties in the supply chain whose actions, inactions or demands influence conduct on the road including drivers, operators, employers, directors and senior managers, loaders, schedulers, consignors and consignees (receivers), as well as agents of any of these parties;
(c) a much greater emphasis on opportunities for sleep and rest;
(d) strengthened record-keeping provisions, including replacement of log books with a new driver work diary;
(f) three fatigue-management options providing alternative drive, work and rest hour requirements with variable levels of flexibility in return for increased fatigue management and compliance responsibilities on operators and drivers. Definition of Long Distance Trip 64 At issue between the parties was the definition of what constituted a long distance trip. This issue arose from the various definitions relied upon by the parties as drawn from existing regulations, inquiries and awards. 65 The definition in the 2005 Regulation is as follows: transport freight long distance means transport freight by means of a heavy truck (whether by means of a single journey or a series of journeys) more than 500 kms, including any part of the journey or journeys where no freight is transported because the heavy truck is being driven to collect freight or to return to base after transporting freight. 66 In the 1999 Regulation which established the requirement for log books, 100 kms is used as a basis for that requirement and is defined as follows: the 100 kilometer limit is the circumference of a national circle of which (a) the centre is the drivers' base (b) the radius is 100 kilometers. 67 Under the Transport Industry (State) Award long distance work is defined in clause 13.1 as: driving work on return trips which are always in excess of 500 road kilometers. 68 The federal Transport Workers (Long Distance Drivers) Award 2000 defines long distance operation as: any interstate operation (as defined) as any return journey where the distance traveled exceeds 500 kms and the operation involves the vehicle moving livestock or materials whether in a raw or manufactured state from a principal point of commencement to a principal point of destination. 69 In the 1984 National Road Freight Industry Inquiry long distance haulage was described as "freight haulage over any distance in excess of 80-100 kms." The Inquiry recommended operator licensing for: owner drivers, fleet operators, freight forwarders, agents and brokers... where they operate in the course of trade, trucks with a gross vehicle mass of 14 tonnes or more and which travel more than 100 km in a radial distance from loading point to unloading point. (s 7.22) 70 For the purposes of his 2001 Inquiry, Professor Quinlan defined long haul trucking as: ...a truck travelling with a load on a single trip to an unloading destination of over 100 kilometers. This definition corresponds with the regulatory requirement for logbooks to be kept and carried and the definition used in the National Road Freight Industry Inquiry (May et al, 1984). Further, to confine consideration to interstate trucking would be to exclude long distance intrastate trucking. There was no logical reason to do this since intrastate trucking is significant, involves single trips of which could typically be around 400km and might well exceed 600km within NSW (and even longer distances in larger states), and arguably entails the same issues as interstate trucking. The term long haul and long distance is used interchangeably. 71 The Union's amended application defined the term as follows: "Long distance trip" means any trip carried out by a heavy vehicle going beyond a radius of 100 km from the starting point in which: (i) any freight is picked up within the County of Cumberland and delivered outside the County of Cumberland;
(ii) any freight is picked up outside the County of Cumberland and delivered within the County of Cumberland; or
(iii) any freight is picked up outside the County of Cumberland and delivered outside the County of Cumberland. 72 In his submissions on the issue, Mr A Hatcher of counsel, who appeared for the Union, submitted that the definition of long distance trip cannot be determined by relying on the traditional simplistic approach as referred to in the Awards or the Regulations, that is, any trips in excess of 500 kilometres. 73 We observe that the Union's approach is derived from the 1984 National Road Freight Industry Inquiry, the log book system itself and the practicalities of the industry as explained by Professor Quinlan in his report. For example, a driver who undertakes three or four Sydney to Newcastle (and return) trips a day is as much a long distance driver as one who does a single long distance drive to, for example, Coffs Harbour. The safety issues in both circumstances will be similar. Mr Hatcher also pointed to the example of Mr Driscoll, a driver who worked for Linfox. Mr Driscoll deposed that he drove from Oberon to Port Botany (and return) a number of times a day. Relying on a definition that referred to a 500 kilometre requirement would exclude Mr Driscoll from being regarded as a long distance driver, however, in aggregate he would be likely to drive at least 500 kilometres in one day. 74 Mr Hatcher also submitted that the definition in the 2005 Regulation is deficient as it does not capture discrete trips undertaken after a driver has returned to base after finishing their first trip in a day. He further submitted that the 2005 Regulation fails to indicate whether the 500 kilometres requirement is to be assessed by reference to any particular time frame. In summary, Mr Hatcher submitted that, on its proper construction, the 2005 Regulation is deficient in that it does not recognise genuine long distance work and the risks involved. 75 The approach to the interpretation and application of this aspect of the 2005 Regulation taken by the WorkCover Authority was explained by Mr Watson. Specifically, Mr Watson explained that the 500 kilometres specified in the definition applies to a journey measured from departure from base and ending upon return to base - and thus excluded any number of return trips in a day which cumulatively exceeded 500 kilometres where no single return trip exceeded 500 kilometres. Mr Watson confirmed that this interpretation of the scope of the 2005 Regulation is one that Workcover has been presenting to the industry in its explanation training sessions. Mr Kettle, a senior manager with Toll Transport, Australia's largest road transport business, took the same approach when he deposed: "I might not have made myself clear but the question I'm asking you about the scope of the regulation is that you recall that the regulation is with reference to work involving trips of 500kms? A. Yes.
Q. How is that in a practical sense being applied to the work performed by Toll SPD - are you doing it on 500 kilometres on a single trip or a number of trips or return trips? A. 500 kilometres in a single trip.
Q. I see. So if someone does a number of shorter trips in a day which add up to 500, as far as you are concerned they don't account for the purpose of the regulation. A. That's our understanding, it doesn't count.
Q. Where do you derive that understanding from? A. The instruction received in the training with regard to that Act.
Q. Who provided that training. A. The RTA.
Q. For example, on the basis of the RTA training, if you do, say, three Sydney/Newcastle return trips in a day, because each trip alone is less than 500 kilometres return, that's not covered by the regulation; is that the approach you're taking? A. I believe that's how it's read." 76 Mr Hatcher submitted that this interpretation of the definition in the 2005 Regulation excludes a driver who completes three return trips from a Sydney base to Newcastle in a day - a combined journey of in excess of 900 kilometres - on a notoriously treacherous stretch of road. That is, drivers who drive very long distances each day will, in many cases, be excluded from the scope of the 2005 Regulation. This interpretation is consistent with the guidance material provided by Workcover [Ex 91] which, despite the bracketed words in the definition "whether by means of a single journey or a series of journeys," states: "This definition means that the 500 kilometres or more distance is calculated as a single journey that may consist of more than one delivery of freight, including distance travelled to return to base after a delivery." 77 Mr Grace, in his evidence, advanced a broader interpretation. Specifically, he deposed that he believed that the 500 kilometres is measured as a series of journeys which, in aggregate, exceed 500 kilometres within a day of work whether or not there has been a return to base. This view was mirrored by Mr Upton, citing in support of his position information provided by a WorkCover officer, a Mr Robinson, that a "single journey and/or a series of journeys completed within the same shift constitute a calculation for the 500kms". Mr Simpson's view appears to accord with this. During his evidence, he said "…if you are asking someone to do more than 500km a day, that is relevant". 78 Mr Kimber SC, who appeared for the employers, submitted that the 2005 Regulation, properly construed, applies to trips of 250 kilometres return and multiple journeys in a day. He further submitted that this is how the industry has viewed and applied the 2005 Regulation and that if clarification is required, the industry has agreed that it applies to work on any one shift and applies to multiple trips which, in aggregate, exceed 500 kilometres. 79 While Mr Kimber accepted that 100 kilometres is derived from the log book history there was nothing in the evidence, including that of Professor Quinlan, Associate Professor Williamson or Michael Belzer, to suggest there is a fatigue problem in journeys between 105-110 kilometres. 80 The 500 kilometres figure was consistent with the 2005 Regulation, how the industry viewed it, overseas studies and the industry's federal and State awards. The 2005 Regulation's requirements are consistent with the definition in the Australian and New Zealand Standard Industry Classification. Mr Kimber submitted that Professor Quinlan had accepted that he had adopted 100 kilometres on the basis of the 1984 National Road Freight Transport Inquiry. He did not assert any driver fatigue problems in journeys of between 100 and 500 kilometres. 81 Mr Kimber further submitted that whether or not long hours are accumulated over one trip or a series of trips is adequately covered by the 2005 Regulation and that the proposal to exclude drivers operating solely within the County of Cumberland would create an immediate anomaly where an operator just outside the border of the County of Cumberland would be covered if the drivers worked within the County. 82 Mr Warren of counsel, who appeared for Employers First, submitted that the overseas studies referred to by Professor Williamson related to journeys far in excess of 500 kilometres. Mr Warren further submitted that Professor Williamson considered long distance journeys to be "at least 300 kms" in her report. 83 Mr Warren referred to Mr Forno's evidence that the real focus of the Union's application was drivers who drove long distances at high speed on rural roads and that he agreed that long distance trips had traditionally been regarded in the industry as involving distances in excess of 500 kilometres. 84 Mr Searle of counsel, who appeared for the Minister, submitted that the 2005 Regulation had sought to clarify the scope of the definition to ensure that journeys (or parts of journeys) were included in the 500 kilometres calculation. This distance had been chosen on the basis that it was consistent with the Australian and New Zealand Standard Industry Classification and because it was used by the Australian Taxation Office, the Australian Bureau of Statistics and WorkCover for the calculation of workers' compensation premiums. It was also consistent with the definition in relevant industrial instruments. 85 Mr Searle relied extensively on Professor Williamson's evidence that the measure had been traditionally used in the context of "long haul trucking". She had used the definition of "at least 300 kms" and added that this was probably too short in characterising the Australian experience. She was also at pains to indicate that drawing a line in the definition was difficult, and had said: "The issues are more not so much about how many kilometers long haul drivers do, but a combination of different factors, including how many you did yesterday and will do tomorrow and so on." 86 Mr Searle referred to the evidence of Mr Watson from WorkCover and various fact sheets available from WorkCover. In these documents the following explanation is provided: "The definition means that the distance (more than 500 kms) is calculated as a single journey that may consist of more than one delivery of freight, including distance travelled to return to base after a delivery." 87 This comprehends a journey or series of journeys, the trigger being whether the distance of 500 kilometres is exceeded in the aggregate. Thus, the scenario of multiple journeys between Sydney and Newcastle in a day would be covered, notwithstanding Mr Watson's understanding. 88 Mr Searle submitted that even if the aggregate was not reached it would still be expected of employers to properly manage any risks associated with their work, including fatigue as required by s8 of the Act and cls 9, 10, 11 and 12 of the 2005 Regulation. THE APPLICATION
89 The Union has applied for the making of two industrial instruments under ss 10 and 313 of the Industrial Relations Act 1996 ("the IR Act"), in the form of an amended application which, it argued, would address the serious occupational health and safety issues facing the industry. The application seeks an award be made to be known as the Transport Industry - Mutual Responsibility for Road Safety (State) Award and a contract determination in similar terms under Ch 6 Pt 2 of the IR Act. The Union described the four main components of its application as follows: (a) a requirement, in respect of all long distance work as defined, for employers and principal contractors to formulate and apply what amounts to a safe working method statement, which the Union has called a Safe Driving Plan. The objective is that transport operators are required to fill out a short document identifying how any long distance trip required to be performed may be undertaken safely and legally and the means by which it is remunerated so as to ensure the work is carried out safely and legally; (b) a regime of accountability with respect to the preparation and enforcement of Safe Driving Plans that applies, as far as is jurisdictionally possible, to all parties at each stage of the contracting chain. This is intended to ensure that parties in the contracting chain take responsibility for the safe performance of work by truck drivers actually performing the work at the bottom of the chain, even where those parties are not the direct employers or principal contractors of those drivers. It was emphasised that the claim does not seek to impose any obligations upon the head consignor where that head consignor does not operate in the transport industry itself or does not engage truck drivers as employees or owner/drivers;
(c) a compulsory basic training requirement for truck drivers in the form of Blue Card training and Induction training. The Bluecard training provides a basic level of training for employees in respect of occupational health and safety matters. It is already used and well established in the transport industry. It provides a portable and easily recognisable training passport. Induction training is sought with respect to basic industrial rights and other requirements relating to remuneration, hours of work, rest breaks, safety and the like; and
(d) a requirement that employers and principal contractors are required to implement a drug and alcohol policy. The application sets out parameters with respect to the requirement to introduce such a policy, including parameters to apply to the testing of drivers where necessary, and focuses on the primary area of drug use in the road transport industry, namely professional drug use. 90 We shall return to detail the arguments in support of and against these claims shortly. However, before doing so, it is necessary to outline the jurisdictional arguments raised against the Commission's grant of the industrial instruments sought as a matter of discretion. JURISDICTIONAL CHALLENGE
91 By notice of motion filed on 11 November 2005, the various employer respondents challenged the jurisdiction of the Commission to make an award and contract determination in these proceedings. The Full Bench delivered a decision on the motion on 20 February 2006 in Re Transport Industry - Mutual Responsibility for Road Safety (State Award and Contract Determination (2006) 152 IR 140 in which the Full Bench dismissed the notice of motion as the jurisdictional challenge had been brought prematurely. 92 Nevertheless the Full Bench observed: 24. That is not to say that there may well be significant jurisdictional barriers to some, or all, of the relief sought by the TWU, but those issues may be more conveniently dealt with when the Full Bench considers whether relief should be granted and, if so, what relief. These determinations will be made at the conclusion of the evidence. 93 In these proceedings, the parties relied to a significant extent on their earlier written submissions which were summarised in the interlocutory decision in the following terms: 12 It was submitted that, properly construed, a contract determination under s 313 of the Industrial Relations Act can only be made with respect to the remuneration or conditions "under a contract" between the principal contractor and the carrier acting in their respective capacities. For a condition to be under a contract, the contract must be the source of the rights and obligations as between the parties to the contract (compare, for example Federal Commissioner of Taxation v Sara Lee Household and Body Care (2000) 201 CLR 520 at 537 and Chan v Cresdon Pty Ltd (1989) 168 CLR 242 at 249). A condition that regulates the relationship between a principal contractor and the contractor to that principal contractor (such as a "consignor" or a "head consignor") is not a "condition under such a contract" between the principal contractor and the carrier. 13 Thus, for this reason, it is said that these and the other various obligations sought to be imposed on the consignor are outside the jurisdiction of the Commission or otherwise beyond power. 14 Mr Hatcher , in response, observed that the respondent employers' submissions now conceded that certain of the claimed provisions may be made as award provisions applying to transport operators which are employers. It is well established that award provisions may be made in certain circumstances which regulate the circumstances in which, or the conditions upon which, an employer may engage and utilise subcontractors: see R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470; R v Industrial Commission of South Australia; Ex parte Master Builders Association of South Australia Incorporated (1981) 26 SASR 535; Lend Lease Hotel Intercontinental (Stage 1) Project Award [2003] NSWIRComm 314; Electrical Contractors Association of NSW v Electrical Trades Union of Australia, NSW Branch (2003) 130 IR 284. ... 16 The proposed clauses have a similar primary purpose: to ensure that employers and principal contractors do not avoid the obligations sought to be imposed upon them with respect to their employees and contract carriers by the use of subcontractors. A fundamental point of the TWU's application is that, in the long distance sector of the road transport industry, subcontracting chains are used by employers and principal contractors to avoid responsibility for a range of legal obligations which would otherwise apply to them with respect to any direct engagement of employees and contract carriers. Unless there is industrial regulation of those subcontracting chains, provisions limited in application to the direct engagement of employees and contract carriers will be rendered largely ineffective. 17 Mr Hatcher also dealt with the definition of "with respect to" in s313(1) of the Act. The section is expressed as follows: The Commission may inquire into any matter arising under contracts of carriage and may make a contract determination with respect to remuneration of the carrier, and any condition, under such a contract. 18 By referring to the authority in Solomons v District Court (2002) 76 ALJR 1601, Mr Hatcher concluded that: [T]he claimed provisions seeking to place conditions on the use of subcontractors by principal contractors are clearly within power. They have the necessary "industrial flavour", and also the necessary "discernible and rational link" with conditions under contracts of carriage. Indeed, just as the claimed provisions would relate to the employment relationship in a "close and obvious way", so also would they relate to conditions under contracts of carriage. 19 Mr Taylor of counsel, for the Minister for Industrial Relations generally supported the TWU's submissions and submitted: a) the respondent employers do not challenge at this time the said clauses to the extent that they are sought to be placed in an award; b) even if the Commission did not have jurisdiction to include the said clauses in a contract determination, the Commission would nevertheless need to otherwise consider and determine the claim for a contract determination, including hearing such evidence as is relevant to that claim; ... f) the provisions challenged are put in issue on the basis that the Commission's jurisdiction under s 313 is not broad enough to include such matters in a contract determination; g) given the breadth of s 313, there is at least a good argument that the section is wide enough to provide to the Commission jurisdiction to include in a contract determination provisions which establish a mechanism for the protection of the terms and conditions of those working under a contract determination. In this regard, an analogy may be drawn with decisions of the Commission as to the extent to which an award can contain provisions which impose obligations on an employer vis a vis contractors that the employer uses: see Electrical Contractors Association v ETU (2003) 130 IR 284 at [173]; and Lend Lease Hotel Intercontinental (Stage 1) Project Award [2003] NSWIRComm 314; and h) the question whether the particular clauses sought to be included in the contract determination are ones that can be properly characterised as establishing a mechanism to protect terms and conditions of those engaged pursuant to a contract determination is a matter which would ordinarily be determined based on the totality of evidence in the proceedings. Accordingly, this is not the appropriate stage to determine that question.
94 During the substantive proceedings the employer respondents conceded that the Commission had jurisdiction to make an award and a contract determination in settlement of this application. We note particularly the comments of Mr Kimber at p 683 of the transcript. It follows that the Commission need not be required to determine the question of jurisdiction in this case. Nevertheless, the respondents submitted that the Commission should be mindful of recent amendments to the Workplace Relations Act and the current industrial relations environment when determining this claim. 95 Mr Kimber submitted that the Workplace Relations Amendment (WorkChoices) Act 2005 ('the WorkChoices Act') had the effect of excluding from operation the IR Act in relation to employers who are constitutional corporations and their employees. Any industrial instrument made by the Commission pursuant to jurisdiction derived from the IR Act that purported to have effect on such corporations would, it was argued, have no effect unless it came within one of the exceptions contained in ss16(2) - (5) of the Workplace Relations Act. The employer respondents further submitted that as the vast majority of employers in the industry are constitutional corporations, any award sought by the applicant would only apply to a relatively limited number of employers and employees in New South Wales. Thus, the proposed award would be ineffective in achieving its desired objective and it would be undesirable to burden smaller employers, such as sole traders and partnerships, with additional extensive obligations not applicable to transport operators which are constitutional corporations. 96 The respondents referred to the exclusion of the Workplace Relations Act insofar as it applies to constitutional corporations (s4(1) of the Workplace Relations Act). In noting that the Workplace Relations Act refers to a State or Territory law which deals with non-excluded matters in s16(3) - which includes occupational health and safety - the respondents submitted that a State Award is not a law for the purpose of the exclusion. Rather, a State Award is an industrial instrument made pursuant to and enforceable under a law; namely, the IR Act. 97 Reliance was also placed on paras 18 and 82 of the WorkChoices Explanatory Memorandum. It was said that the Explanatory Memorandum makes it clear that ss 16(2) and 16(3) of the Workplace Relations Act only preserves a particular subject matter to the extent that the subject matter is prescribed in a State law, rather than a State award. 98 Employers First supported Mr Kimber's submission and submitted that insofar as a State law which deals with occupational health and safety is concerned, only the OH&S Act is exempted by s 16(3) of the WorkChoices Act. The IR Act is not so exempted. It was further submitted that the IR Act does not deal with occupational health and safety in the way that the OH&S Act does, and that matters affecting occupational health and safety in the transport industry should be left to the exclusive domain of the OH&S Act in order that a consistent approach is adopted throughout the State.
99 Mr Searle agreed with the employer parties that the issue of jurisdiction and the WorkChoices Act need not be determined in these proceedings. However, Mr Searle submitted that the subject matter of these proceedings; namely, occupational health and safety in the long-distance transport industry, fell comfortably within the exceptions provided for in ss16(2) and (3) of the Workplace Relations Act. To the extent that the IR Act deals with occupational health and safety, it is not excluded from operation, even against constitutional corporations. As a consequence, he submitted that the capacity of this Commission to make an industrial instrument that deals with occupational health and safety is not impaired by the operation of the Workplace Relations Act. Mr Searle further submitted that this position is supported by s17 of the Workplace Relations Act as it repeats the traditional approach that Commonwealth industrial instruments apply to the exclusion of any State instrument to the extent of any inconsistency. 100 Mr Searle also submitted that the jurisdiction of the Commission to deal with occupational health and safety matters relates not only to its award making functions, but also to its dispute resolution functions in Ch 3 Pts 1 and 2 of the IR Act. See Unions New South Wales v Carter Holt Harvey (2006) 149 IR 361. 101 Mr Hatcher for the Union supported Mr Searle's submissions as to the effect and operation of the WorkChoices legislation. Conclusion on Jurisdictional Issues
102 The only matter remaining to be resolved regarding the challenge to the Commission's jurisdiction relates to the impact of the Workplace Relations Act. The objection relating to the Commission's jurisdiction to make a contract determination in the manner sought was ultimately not pressed after the Union amended its application to clarify the meaning of "Head Consignor" and it was accepted that the equivalent provisions sought to be included in the contract determination could be included in an award. Those objections may, however, be relevant in the Commission's consideration as to whether to make the instruments sought. 103 A question of the application of the Workplace Relations Act arises as the proposed industrial instrument is expressed to apply to all transport operators operating wholly or partly in New South Wales and to all employees and contract carriers engaged by such transport operators (and to all labour hire employees utilised by such transport operators in their business). This would necessarily include employees of constitutional corporations (as defined under the Workplace Relations Act). 104 Initially, the question arose whether the Commission's power to make an award which purported to apply to constitutional corporations and their employees was ousted by the operation of s16 of the Workplace Relations Act. In their written submissions, the employer respondents submitted that the Workplace Relations Act meant that the Commission could not make a State award which purported to apply to constitutional corporations or their employees. 105 However, as Mr Kimber properly conceded during the hearing, the employer respondents' contention regarding this issue is not one of jurisdiction but rather relates to the application of any award made. That is, while the award may be expressed to apply across an industry, it will operate only so far as permissible by law as a result of the federal legislation and s109 of the Commonwealth Constitution. However, we consider that this does not mean, as was conceded, that the Commission lacks jurisdiction to make a general award. 106 On this basis, the Commission's jurisdiction to make the industrial instruments sought was not ultimately challenged. We note also that the Workplace Relations Act does not impact on the Commission's jurisdiction to make a contract determination as it only applies to employees. 107 Nevertheless, the parties submitted that the Commission should make some observations regarding the operation of the Workplace Relations Act in this context and for that purpose the parties made submissions regarding the operation of the relevant exclusion in s16. In deference to these submissions, we propose to make the following observations. 108 The relevant provisions of the Workplace Relations Act are ss 16 and 17, which relevantly provide: 16 Act excludes some State and Territory laws (1) This Act is intended to apply to the exclusion of all the following laws of a State or Territory so far as they would otherwise apply in relation to an employee or employer: (a) a State or Territory industrial law; ... (2) State and Territory laws that are not excluded However, subsection (1) does not apply to a law of a State or Territory so far as: ... (c) the law deals with any of the matters (the non-excluded matters ) described in subsection (3). ... (3) The non-excluded matters are as follows: ... (c) occupational health and safety (including entry of a representative of a trade union to premises for a purpose connected with occupational health and safety); ... 17 Awards, agreements and Commission orders prevail over State and Territory law etc. (1) An award or workplace agreement prevails over a law of a State or Territory, a State award or a State employment agreement, to the extent of any inconsistency. (2) However, a term of an award or workplace agreement dealing with any of the following matters has effect subject to a law of a State or Territory dealing with the matter, except a law that is prescribed by the regulations as a law to which awards and workplace agreements are not subject: (a) occupational health and safety. ... (3) An order of the Commission under Part 12 prevails over a law of a State or Territory, a State award or a State employment agreement, to the extent of any inconsistency. Note: part 12 is about minimum entitlements of employees . 109 The argument before us related to one of the exceptions to s16(1). Given the conclusion we have reached regarding the Commission's jurisdiction, we note that it is unnecessary to consider the limits of s16(1), including the extent to which it may not operate in this context. In this regard, it is unnecessary for us to examine the extent to which s16(1) may be merely facilitative in nature. We note also that it is unnecessary for us to consider all of the exceptions to s16(1).
110 The relevant exception to s16(1) is found in ss16(2) and (3). The argument in these proceedings focused on s16(3)(c), which in combination with s16(2) provides that s16(1) does not apply to an industrial law of a State or Territory so far as it deals with occupational health and safety.
111 At the outset, we consider that the subsection should be read beneficially and broadly given that the subject matter of the exception is occupational health and safety. The clear purpose of the exception is to preserve laws which address an important public policy issue, occupational health and safety protection. The Full Bench of this Commission has made a number of recent observations on the important social purposes of the Occupational Health and Safety Act 1983 and its successor: see, for example, the Full Bench decision in WorkCover Authority (NSW) v T & Y Pty Ltd (2005) 146 IR 458 at [7]; Beacham v Interface Manufacturing Pty Ltd and Another [2005] NSWIRComm 123 at [27]; WorkCover Authority of NSW (Inspector Glass) v Flexible Packaging (Australia) Pty Limited (2005) 144 IR 385 at [2]; and T and M Industries (Aust) Pty Ltd and Anor v WorkCover Authority (NSW) (Inspector Sequeira) (2006) 151 IR 130 at [77]). While these observations have been made in the context of specific state legislation (the Occupational Health and Safety Act 1983 and its successor), they are nevertheless pertinent to occupational health and safety issues generally. We consider that these social purposes of occupational health and safety legislation should guide our approach to the interpretation of the exception to the extent that any particular aspect of the exception is unclear. 112 In summary, the issues arising from the submissions are:
(a) whether the reference to occupational health and safety was only to occupational health and safety legislation and not to instruments made under the IR Act that deal with or relate to occupational health and safety issues; (b) whether the exception actually applied to the present application as the exception in ss16(2) and (3)(c) relates to "laws" dealing with occupational health and safety and as the industrial instruments sought by the Union in its application are not laws, the instruments do not fall within the exception; and (c) the subject matter of the Union's application does not relate completely to occupational health and safety matters.
We shall consider each of these arguments in turn. Issue 1: Is the reference to "occupational health and safety" confined to the OH&S Act?
113 Employers First had contended that the reference to occupational health and safety was only to Acts of Parliament making specific occupational health and safety laws and not to statutory provisions which permit the making of instruments that create obligations relating to occupational health and safety matters. We reject this contention for the following reasons. 114 First, we accept Mr Hatcher's submission that s16(3)(c) does not appear to relate to the OH&S Act as the OH&S Act itself is not listed in s16(1) and so, by implication, does not needed to be "saved" by ss16(2) and (3). 115 Secondly, there is nothing in the plain words of s16(3)(c) which would require such a limitation being placed on the phrase "occupational health and safety". Section 16(3)(c) refers to occupational health and safety as a "non-excluded matter". The relevant subject is an occupational health and safety matter, not specific occupational health and safety legislation. We note also that the subject is further defined to include entry of a representative of a trade union to premises for a purpose connected with occupational health and safety. This is instructive as the reference is to the entry of a representative rather than to a law authorising such entry. 116 Thirdly, a narrow reading of the phrase ignores the wording of s16(2) that "subsection (1) does not apply to a law of a State or Territory so far as …" (emphasis added). The words of the section itself imply that parts, but not all, of a law may deal with occupational health and safety matters. To limit this reference to specific occupational health and safety legislation would, in our view, carry the inference that such legislation only partly deals with occupational health and safety matters. We do not believe that the legislature intended such an approach. On the contrary, we consider the clear intent was to "save" those parts of laws caught by the exclusion in s16(1) that deal with the "non-excluded matters". 117 Finally, we consider that the context implies a broader reading: the exclusion operates to protect and preserve parts of legislation caught by the exclusion in s16(1) insofar as they deal with occupational health and safety. As already mentioned, occupational health and safety statutory provisions serve an important social purpose and it is clear that the legislature has sought to preserve existing regulation in that area. Indeed, there are no other provisions in the Workplace Relations Act dealing with occupational health and safety matters. Having provided an exception in this area, we do not consider the legislature intended to narrow the matters that would fall within this exception but rather would have intended to include all of the existing regulation in this area. 118 For these reasons, we are satisfied that the phrase "occupational health and safety" is not limited to reference to specific occupational health and safety legislation but rather refers to all statutory provisions that deal with, or otherwise relate to, occupational health and safety.
Issue 2: Does the Union's application for an industrial instrument fall within the exception in ss16(2) and (3)(c)? 119 We do not accept the contention that as the application relates to an industrial instrument and as an industrial instrument is not a law, then the exception in s16(2) and (3)(c) cannot "save" the award for the following reasons. 120 In addressing this contention, a preliminary question must be addressed: what is the "law" that is relevant for the purposes of applying ss16(1) and (2) to the present application? 121 There are two possibilities:
(a) the award the Union is seeking is the "law" for the purposes of applying ss16(1) and (2); or
(b) the Commission's power to make an award that includes provisions regulating occupational health and safety matters is the "law" for the purposes of ss16(1) and (2). 122 For the reasons we will now outline, we are satisfied that the relevant "law" for the present purposes is the Commission's power under s10 of the IR Act to make an award that includes provisions regulating occupational health and safety matters.
123 Mr Kimber contended that the relevant "law" was the award and submitted that a State Award is not a law for the purposes of the exclusion (but rather is an industrial instrument made pursuant to and enforceable under a law; namely, the IR Act). Further, Mr Kimber submitted that by reference to paras 18 and 82 of the WorkChoices Explanatory Memorandum, ss16(2) and 16(3) of the Workplace Relations Act only preserve a particular subject matter to the extent that the subject matter is prescribed in a State law, rather than a State award. The implication being that as an award is not a law, the exceptions in ss16(2) and (3) do not apply. 124 Counsel for the employer respondents referred us to some authorities which had considered the question whether an award was a "law". In Unions NSW v Carter Holt Harvey Wood Products Australia Pty Ltd (2006) 149 IR 361 at [94], the Full Bench of this Commission stated that "the federal Award is not a law of the Commonwealth". 125 Similarly, in CFMEU v Newcrest Mining Limited (2005) 139 IR 50, the Full Bench had to consider whether an AWA was a law of the Commonwealth and held that "we accept the position of the parties, namely that neither an award nor an AWA is a law of the Commonwealth". 126 Mr Kimber also referred to the decision of the High Court in Ex parte McLean (1930) 43 CLR 472 in which Isaacs CJ and Starke J held, in the context of considering the status of a federal award, that "the Award itself is, of course, not law, it is a factum merely". 127 Relying on these authorities, Mr Kimber submitted that as is the situation with an award made under the Workplace Relations Act, a State award is not a law; rather a State award is an "industrial instrument" made pursuant to, and enforceable under a "law", namely the IR Act. Mr Kimber also drew attention to the references to "law" and "state award" in s17(1) as demonstrating that there was a clear distinction between the two. 128 Mr Searle submitted that it is unnecessary to address whether or not a State award is a law of the State as the reference to law in ss16(1) and (2) is to the IR Act and not an award. The relevant question is whether the law deals with excluded matters and whether it would therefore come within the exception in that way. 129 Mr Hatcher agreed with Mr Searle that it was not necessary to consider whether a State award was a law for the purposes of s16(1) and (2). He further submitted that if Mr Kimber was right it meant that s16 did not relate to awards at all, which in his submission defeats the very proposition Mr Kimber seeks to advance. 130 The starting point in addressing this issue is to consider the plain words of s16(1). Section 16(1) provides that the Workplace Relations Act is intended to apply to the exclusion of all of the listed laws so far as they would otherwise apply in relation to an employee and employer. Included in that list is "a State or Territory industrial law". "Industrial law" is defined in s4 of the Act and includes the IR Act. The word "law" is not separately defined. 131 We consider that the relevant point of enquiry is the notion of "laws". Viewed in the context of s16, it is clear that the section is directed towards laws and s16(2) preserves those laws so far as they deal with "non-excluded matters". We note that it is without doubt that the same meaning must be given to "law" in both ss16(1) and (2). 132 Accordingly, if Mr Kimber is correct in contending that a State award is not a law, then we agree with the submissions of Mr Hatcher that s16 has no application to the question of our jurisdiction in this matter if the point of enquiry is whether the award is affected by s16. 133 Notwithstanding this, contrary to the submissions of Mr Kimber, we do not consider it is necessary for us to decide whether an award made under the IR Act is a law. It is clear from the plain words of the section that the reference to "law" in ss16(1) and (2) is to the IR Act and not an award made under that law. The context of s16(1) supports this conclusion: the relevant question raised by ss16(2) and (3) is whether the law deals with excluded matters and whether it would therefore come within the exception. 134 We consider that the plain legislative intention involves there being a distinction between "laws" and awards or instruments made under a law. Section 17(1) provides that an award or workplace agreement prevails over "a law of a State or Territory, a State award …". Similarly, s18(1) provides: Sections 16 and 17 are not a complete statement of the circumstances in which this Act and instruments made under it are intended to apply to the exclusion of, or prevail over, laws of the States and Territories or instruments made under those laws. 135 On this basis, we are satisfied that s16 is directed to laws rather than an award. The question is then whether this impacts on the ability of the Commission to decide the present application. At issue in the present proceedings is whether the Workplace Relations Act affects the Commission's ability to make the award sought. 136 The Commission's power to make the proposed award is derived from s10 of the IR Act, which provides: The Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees. 137 "Conditions of employment" is defined in the IR Act as: conditions of employment includes any provisions about an industrial matter. 138 Accordingly, the question turns on whether s10 can fall within the exception in ss16(2) and (3)(c), that is, whether s10 of the IR Act "deals with" an occupational health and safety matter. 139 While the parties did not refer us to any authorities on the meaning of the phrase "deals with", it is instructive to briefly refer to some authorities in this area. In NAQF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781, Lindgren J was required to consider the meaning of the expression "the requirements of the natural justice hearing rule in relation to the matters [Div 5] deals with" and, in particular, the words "the matters [Div 5] deals with" in s357A of the Migration Act 1958 (Cth). In obiter, Lindgren J found that the expression was intended to refer to a larger subject matter or larger subject matters than the exact text of the procedural fairness requirements to be found in Div 5. By reference to the context of the section, his Honour was inclined to the view that the expression required a search to be made of the operative provisions within Div 5 for a provision "dealing with" a relevant "matter". Given the precise facts of the case, his Honour was not required to resolve this issue finally nor was he required to identify the full reach of the expression "the matters it deals with", that is, how explicitly the matter had to be dealt with. 140 In Shop, Distributive and Allied Employees Association v Retail Traders' Association of Victoria (1998) 83 IR 352, the Full Bench of the Australian Industrial Relations Commission (AIRC) found that the expression "deals with allowable award matters" was wide enough to permit the AIRC to retain award provisions which were incidental to allowable award matters and necessary for the effective operation of the award. 141 In the present context, therefore, it is necessary to consider the extent to which the IR Act deals with occupational health and safety in the context of making an award pursuant to s10 of the IR Act. 142 It is well established that the Commission may have regard to considerations of health and safety when making an award and the parties in this matter did not seek to contend otherwise. In Re Operational Ambulance Officers (State) Award (2001) 113 IR 384, the Full Bench concluded: [184]... The authorities cited above indicate that it is appropriate for the Commission to have regard to considerations of the health and safety of employees when making an award setting fair and reasonable conditions of employment. This approach is consistent with the approach which has been adopted by this Commission over many years and reflects ongoing concern to eradicate, where possible, threats to the health and safety of employees in the workplace. [185] One consideration that may be relevant to the exercise of the Commission's discretion to make an award in light of considerations of health and safety is the existence of parallel obligations under other legislation, particularly the Occupational Health and Safety Act . In our view, the existence of general obligations on employers under other legislation, or under the common law, should not operate to limit the Commission's jurisdiction to make awards which also address health and safety concerns. The focus of an award is clearly distinguishable from the duties imposed by the Occupational Health and Safety Act . Generally speaking, an award is intended to prospectively provide for the general conditions of employment for employees in an enterprise, occupation or industry. An award, by its nature, lays down relatively specific conditions to be provided in the future by employers to employees working in a particular industry. In contrast, the Occupational Health and Safety Act imposes an absolute duty on an employer to ensure the health and safety at work of all its employees. Among other things, the duties under the Occupational Health and Safety Act require an employer to take a continuously pro-active approach to issues relating to health and safety. This duty will inevitably extend beyond any requirements which can be laid down in an award: see Re NSW Department of Community Services Community Living and Residential (Interim) (State) Award (at 467). [186] Thus, one matter to which the Commission should properly have regard when determining what are fair and reasonable conditions of employment is the health and safety of employees. In doing so, the award is not seeking to replicate or diminish the much broader obligations of an employer under the Occupational Health and Safety Act. Many measures that will be necessary for an employer to take in compliance with its obligations under the Occupational Health and Safety Act will not ordinarily be apt for inclusion in an award. Because an award may apply to all employees in an industry as a common rule, there may be limits to the extent to which award provisions requiring measures to be adopted in relation to health and safety can address the circumstances of an individual employee. It would, for example, be difficult to make provision in an award for the detailed systems of work to be adopted in a particular workplace. However, if there are measures of the nature of conditions of work having general effect, which are applicable for an award and which are available to address threats to the health and safety of employees covered by an award, provision should be made in the award for those measures to be adopted. Further, we have little doubt that an applicant will, where it has made out a case for the making or variation of an award based on occupational health and safety considerations pursuant to s 10 of the Act , ordinarily demonstrate that case has sufficient attributes to bring the matter under the special case principle. 143 The relevance of occupational health and safety matters also arises from the definition of "industrial matter". "Industrial matters" is defined in s6 of the IR Act as: In this Act, industrial matters means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry. 144 A non-exhaustive list of examples of industrial matters is also included in s6. This definition has been judicially considered on many occasions, including in the context of antecedent industrial legislation. It is clear from those authorities that "industrial matters" has included matters which would be considered occupational health and safety matters, including time to be allowed for the performance of a particular operation (Re Engine Drivers et (South Maitland Railways Ltd) Conciliation Committee [1938] AR (NSW) 266 at 290-92) and measures for the protection of the safety and health of employees against hazards arising in the course of their employment, eg compulsory medical examinations at the employer's expense (Re Glass Makers (State) Conciliation Committee [1944] AR (NSW) 292 at 308-309). 145 The link between "industrial matters" and the Commission's award making jurisdiction is also well established. In Re Pastoral Industry (State) Award (2001) 104 IR 168, the Full Bench stated (at paragraph 20): It follows that the Commission's jurisdiction as to the subject matters about which it may make an award are extremely wide, particularly having in mind the definition of industrial matter.
146 For present purposes, therefore, we consider that s10, at least to the extent it has been interpreted as allowing the Commission to make award provisions relating to the health and safety of employees, falls within the exception in ss16(2) and (3)(c). Section 10 therefore, for this purpose, deals with occupational health and safety matters. Accordingly, we are satisfied that s16(1) does not operate to restrict the Commission from making award provisions relating to occupational health and safety matters. 147 We are fortified in reaching this conclusion by reference to the purpose of the exception in ss16(2) and (3)(c). As already mentioned, it is clear that the legislature sought to protect certain existing laws, including those relating to occupational health and safety, from the operation of s16(1). We consider that there is a clear public policy reason for doing so, namely the ongoing concern to eradicate, where possible, risks to the health and safety of employees in the workplace. The legislature has referred generally to occupational health and safety laws and has not sought to narrow that reach. Accordingly, we consider that the purpose was to retain all existing laws relating to occupational health and safety that would otherwise be ousted by the exclusion in s16(1). We repeat our view that this purpose is also apparent from the fact that the Workplace Relations Act does not purport to regulate occupational health and safety matters as there are no specific provisions in the Workplace Relations Act regulating such matters. 148 The respondents referred us to extracts from the Explanatory Memorandum to the amending bill to support the contention that the purpose of s16, and the Workplace Relations Act generally, was to ensure that State awards would not apply to constitutional corporations and their employees. For the reasons already given and to the extent that this may have been the legislative purpose, we do not accept that the terms of ss16 and 17 achieve it. The evident purpose of ss16(2) and 16(3)(c) was to protect and preserve existing occupational health and safety laws wherever appearing. We are satisfied that this must be taken to include the power to make State awards with conditions dealing with occupational health and safety. 149 In this regard, we agree with Mr Searle and Mr Hatcher that the interpretation that State awards are not completely ousted by s16(1) is supported by s17 of the Workplace Relations Act as it repeats the traditional approach that Commonwealth industrial instruments apply to the exclusion of any State instrument to the extent of any inconsistency. In other words, s17 clearly contemplates by its language the continued existence of State awards, at least in some circumstances.
Issue 3: Does the Union's application relate to occupational health and safety matters? 150 The application, contentions in support, and evidence going to the specific claims in the Union's application leave no doubt that each of the specific claims in the Union's application can be considered to be an occupational health and safety matter. The only matter possibly in contention is the requirement in the safe driving plan relating to methods of remuneration. However, the evidence presented during the proceedings establishes a clear link between methods of remuneration, fatigue, and safety which leaves no doubt that the subject matter of this aspect of the claim also relates to occupational health and safety (although whether that claim is successful will be considered later in this decision).
151 While argument against this proposition was not strongly pressed during the proceedings, the employer respondents had contended that the aspect of the safe driving plans relating to remuneration was not properly an occupational health and safety matter. Mr Searle, who appeared for the Minister, submitted that the subject matter of these proceedings was conditions of work that impact upon occupational health and safety in that part of the transport industry dealing with long distance truck driving. 152 We note that the phrase "occupational health and safety" is not defined in the Workplace Relations Act. However, we consider that it is well understood that occupational health and safety relates to securing and promoting the health, safety and welfare of people at work and protecting persons at a place of work against risks to health or safety arising out of the activities of persons at work. As already noted, we consider that there is a clear legislative intent expressed in s 16 to protect and preserve existing laws, or parts of laws, that deal with occupational health and safety. 153 We note finally that the employer respondents had sought to demonstrate that while the Commission had jurisdiction to make awards that included occupational health and safety provisions, the Commission had, in the past, been reluctant to exercise that power, instead allowing the OH&S Act (and related regulations) to deal with such matters. However, the operative word is reluctant. The Commission has exercised a discretion in favour of making an award where it considers it appropriate to provide regulation in relation to a particular occupational health and safety issue: see Re Operational Ambulance Officers (State) Award supra; Re Social and Community Services Employees (State) Award (2001) 117 IR 458. This is usually where there is some particular feature of the industry or employment which requires that additional intervention. This is one such exceptional case.
154 The central focus of the Union's amended application concerned the proposal for safe driving plans to be a requirement for all work performed by employees, contract carriers or labour hire employees pursuant to a long haul transport contract (see clauses 3, 4 and 5). 3. Safe Driving Plans 3.1 A transport operator must prepare a safe driving plan in relation to any work performed by its employees and/or contract carriers and/or by labour hire employees pursuant to a long haul transport contract to which the transport operator is a party. 3.2 A safe driving plan must: (i) identify the name and address of the relevant transport operator, and of the consignor or head consignor party to the relevant long haul transport contract; (ii) identify the period in which work is required to be performed under the long haul transport contract to which the safe driving plan applied; (iii) identify the relevant pick up and delivery locations; (iv) demonstrate how the work to be performed is to be remunerated in accordance with any applicable industrial instrument; (v) identify the remuneration method chosen (having regard to the health and safety of relevant employees, contract carriers and labour hire employees), and the rate; (vi) identify the system(s) by which the effect of the chosen method of remuneration on driver fatigue may be monitored and measured; (vii) identify the means by which the amount of hours and work to be performed by employees, contract carriers and labour hire employees is to be limited in order to prevent driver fatigue occurring and excessive hours being worked, and the means by which such limitations are to be enforced; (viii) set out how the work is be (sic) performed and rest breaks taken in a manner consistent with the Regulation and any provisions of any applicable industrial instrument concerning hours of work, limitations upon hours of work, meal breaks, rest breaks, crib breaks and like matters; (ix) identify the means by which the transport operator will ensure that any persons performing the work will be doing so free of drugs and alcohol (which shall include but not be limited to the transport operator's drug and alcohol policy implemented in accordance with clause 8 of this Award); 3.3 A safe driving plan must, as far as practicable, be prepared in consultation with the employees, contract carriers and labour hire employees who are to perform the work the subject of the safe driving plan, and each such employee, contract carrier and labour hire employee performing work the subject of the safe driving plan is to be supplied with a copy of it. 3.4 Insofar as the safe driving plan is to have application to labour hire employees, the transport operator will also consult with the labour hire business employing such employees in the preparation of the plan as far as practicable. 3.5 A safe driving plan must be reviewed regularly and updated when there is any change to the circumstances applicable to the work. 3.6 A copy of the safe driving plan must be provided to the consignor or head consignor party to the long-haul transport contract. 3.7 A consignor which is provided with a copy of a safe driving plan pursuant to subclause 3.6 hereof shall send a copy of such safe driving plan to any head consignor who has sub-contracted the cartage of the freight the subject of the safe driving plan. 3.8 Where the cartage of freight is to be sub-contracted by any consignor, it must be a condition of the sub-contracting arrangement that a safe driving plan applying to the cartage of such freight which conforms with the requirements of subclause 3.2 above has been provided to such consignor prior to the performance of any cartage work. 3.9 Nothing in this clause is intended to affect or detract from any obligation or responsibility upon an employer or principal contractor under the Occupational Health and Safety Act 2000 or the Occupational Health and Safety Amendment (Long Distance Truck Driver Fatigue) Regulation 2005. 4. Records and Inspection of Safe Driving Plans 4.1 A transport operator who is required to prepare a safe driving plan, and any consignor who is required to be provided with a copy of a safe driving plan pursuant to subclause 3.6 above shall keep a copy of the safe driving plan during the period in which the cartage of the freight the subject of the safe driving plan is being carried out, and for 6 years thereafter. 4.2 An accredited official of the Union is entitled to inspect a safe driving plan at the premises of any transport operator or consignor, which is required to maintain a copy of such safe driving plan under subclause 4.1 above upon the provision of 24 hours written notice. 5. Compliance with Safe Driving Plans and Applicable Laws 5.1 Consignors shall enter into long haul transport contracts with transport operators on the basis that strict compliance with applicable safe driving plans, the Regulation and relevant industrial instruments is a condition of the contract. 5.2 Consignors and transport operators must ensure that all work undertaken pursuant to a long haul transport contract to which they are party is carried out in conformity with the applicable safe driving plan, the Regulation, and any applicable industrial instrument. 5.3 Employees, contract carriers and labour hire employees must comply with any safe driving plan applicable to the work they are required to perform. If any circumstances arise which make compliance with a safe driving plan impracticable, they shall notify thir (sic) employer/principal contractor as soon as possible. 5.4 Where a consignor becomes aware that a transport operator it has contracted with under a long haul transport contract has breached any applicable safe driving plan, the Regulation, or any applicable industrial instrument, the consignor must take such action as is necessary to ensure that such a breach is rectified and is not repeated. Such action may include termination of the long haul transport contract. 5.5 Consignors must take pro-active steps to monitor compliance by transport operators carrying freight put out to consignment by the consignor with the relevant safe driving plan, the Regulation and any applicable industrial instruments. 5.6 Where the Union becomes aware of any breach by a transport operator party to a long haul transport contract of any applicable safe driving plan, the Regulation, or any applicable industrial instrument, it shall notify the transport operator, the consignor, and the head consignor, of such breach, with such notification to include the necessary particulars, and shall advise of what action it thinks is necessary to ensure such breach is rectified and not repeated. 5.7 Where any dispute arises between the Union and a transport operator or a consignor about whether a breach of any applicable safe driving plan, the Regulation, or any applicable industrial instrument has occurred, or about what action is necessary to ensure that any such breach is rectified and not repeated, the disputes procedure set out in clause 9 of this Award shall be followed. 155 During the course of these proceedings, the Union modified its safe driving plan proposal (Ex 57) to a one-page form (annexed as Annexure B to this decision). It was submitted that the evidence of the respondents' witnesses as to the difficulty and complexity of the proposal was significantly exaggerated and ill founded. Mr Hatcher referred particularly to the evidence of Mr Grace, the Road Transport Association's lead witness, Mr Crook from Toll and Mr Upton from Patrick Autocare who each was concerned about too much paperwork. Mr Upton, however, acknowledged that the plan could be directly communicated through the driver's handheld computer. 156 Mr Hatcher submitted that responsibility for the plan would be at all levels of the chain of responsibility with the exception of the Head Consignor. Those higher up the chain would have responsibility to ensure compliance with the plan. 157 The Union contended that a significant reason for supporting that part of its application relating to safe driving plans was because the 2005 Regulation was deficient or unclear in the following respects:
(a) it does not deal with the fundamentally important issue of the effects of remuneration and remuneration systems on fatigue. Mr Watson, the General Manager of the Occupational Health and Safety Division of the Workcover Authority of New South Wales said in his statement " A deliberate decision was made not to include the impact of remuneration systems on driver fatigue ." He later confirmed this under cross-examination. Importantly, Mr Watson also gave evidence that the Industrial Relations Commission was the proper province to deal with the impact of remuneration systems on driver fatigue.
(b) it is limited in the scope of its application in that, because of the definition of "Transport Freight Long Distance" in clause 81A, it does not appear to apply to a large proportion of road transport work which is properly characterised as long distance in nature and which carries with it the safety risks of that kind of work.
(c) Mr Upton and Mr Crook gave evidence that the Fatigue Regulation did not necessarily require the formulation of a plan for each trip the subject of the 2005 Regulation, and that compliance could be achieved merely through a global Driver Fatigue Management Plan, in the nature of a general policy, applying to the entire range of work as opposed to a specific journey plan.
158 The employer respondents strenuously opposed the Union's safe driving plan proposal. Mr Kimber submitted that the most effective tool for dealing with safety in the industry is to be found in the OH&S Act and associated regulations. He put that the general tendency of the Commission over many years was not to make substantive awards dealing with occupational health and safety as this was the proper preserve of the Act itself (see Steel Works Employees (Broken Hill Pty Company Ltd) No.2 Award [1964] AR (NSW) 696, Transport Industry - Cash in Transit (State) Interim Award [2001] NSWIRComm 220 and Secure Employment Test Case (2006) 150 IR 1). 159 This principle was also expressed in the evidence of Mr Watson from WorkCover and the Minister's submissions concerning the undesirability of duplication with matters properly dealt with under the OH&S Act and associated regulations. Mr Kimber noted that, for the first time, Head Consignors were covered by the 2005 Regulation and this was a "ground breaking" development. Mr Kimber referred to the issue of driver fatigue which was comprehensively addressed in the Quinlan report. Following extensive consultation with relevant stakeholders, the New South Wales Government had now passed a comprehensive regulation designed to deal with driver fatigue.
160 Mr Kimber submitted that the 2005 Regulation, when considered in conjunction with the impact of the Commission's recent decision in Hitchcock, will have a significant impact on the culture of the industry with respect to the management of fatigue. At the very least, any further regulation should be deferred until the full impact of these matters and pending Federal initiatives can be properly assessed. 161 Mr Kimber further submitted that there was a significant level of duplication between the requirements under the 2005 Regulation and the proposed award such as to create confusion and uncertainty and an even greater potential for avoidance. In addition, the Union's proposal sought to go beyond the reach of the 2005 Regulation, most notably by picking up journeys in excess of 100 kilometres (as opposed to 500 kilometres in the 2005 Regulation) and by requiring transport operator assessment and monitoring of the connection between chosen remuneration systems and the incidence of driver fatigue. 162 In seeking to demonstrate the differences between the Union's proposal and the 2005 Regulation, Mr Kimber relied on a comparison chart (annexure C to his submissions). Mr Kimber also referred to the 1999 Regulation and submitted that if policed and enforced properly would effectively address issues of driver fatigue. 163 Mr Kimber pointed out that if the industrial instruments as sought were made it could result in both a breach of the Act or its regulations with potential criminal penalties and a breach of the industrial instruments with the potential for civil penalties. A defendant could be penalised twice for the same act and prosecuted by two separate authorities. This would create confusion about occupational health and safety obligations and would be contrary to the public interest. 164 Mr Kimber submitted that the proposal for safe driving plans was not only unnecessary and inappropriate, but also impractical and imposes an unreasonable burden on large and small transport operators alike. In this respect reliance was placed on the evidence of Mr Grace, Mr Colin Handock (TNT Logistics), Mr Tony Yule (TNT Logistics) and Mr Phillip Crook (Toll). 165 Mr Kimber further relied on the evidence which disclosed that there is a degree of self regulation of the industry. For example, evidence was presented that Toll has a comprehensive system to deal with these matters and the industry generally has been preparing for the anticipated changes in Federal legislation. He also noted that a very large warning had been given to the industry by the Hitchcock judgment and Mr Watson gave evidence that WorkCover was looking at a further 25 cases in the transport sector. 166 As to the relationship between rates of remuneration and safety, Mr Kimber submitted it was open to the Union at any time to lodge an application in which it could argue that minimum rates across the industry were not safe rates. In relation to underpayment, Mr Kimber submitted that if there has not been a proper attempt at enforcement, further industrial prescription is not going to fix the problem. 167 Mr Kimber referred to the evidence of Professor Quinlan and Associate Professor Williamson concerning performance based or incentive based systems of remuneration and bonus systems which it was said encourages drivers to break the law and engage in unsafe practices. Mr Kimber further submitted that it was open to the Union to ask the Commission to consider the appropriateness of such systems. These were all matters that link driver fatigue with safety but are not matters the Commission is being asked to consider in this case. 168 Mr Warren also opposed the Union's claim by submitting that the Union's amended award application and the occupational health and safety regulation "cannot live together". He particularly noted the different definitions for consignor and long distances and the confusion which would be created if employers were expected to comply with both the proposed Award and the Regulations. It would be necessary to construct two different safe driving plans with different enforcement provisions. 169 Mr Warren referred to Mr Upton's evidence which was not simply about more paperwork. Mr Upton had said that it was common practice for additional pickups en route and the difficulties which would result in amending the predetermined safe driving plan en route. Mr Warren also highlighted the evidence of Mr Robertson from Readymix who detailed the variety of customer requirements that occur during the course of the day for its drivers which would make a strict safe driving plan very difficult to comply with. 170 Mr Warren submitted that the disclosure on a safe driving plan of the financial arrangements between it and a contract driver may give rise to the disclosure of confidential information which should not be the province of the Union. 171 Mr Searle submitted that the Minister opposed the Union's application to the extent that the claim included matters already encompassed in existing occupational health and safety regulation. To the extent the claim includes matters outside existing regulation, the Minister supports the jurisdiction of the Commission to hear and determine these matters. 172 In developing this argument, Mr Searle submitted that the occupational health and safety legislation:
(a) establishes an obligation on an employer to ensure the health, safety and welfare at work of all the employees of the employer: s8(1) of the Act. This places unequivocal obligations on all employers to ensure the safety of their employees;
(b) requires all employers to ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work: s8(2) of the Act; and
(c) requires any person who has control of premises used by people as a place of work to ensure that the premises are safe and without risk to health: s10(1). 173 The nature of these responsibilities is dealt with further in the 2005 Regulation, particularly at clauses 9 to 20. For example, clause 11(1) requires an employer to eliminate any reasonably foreseeable risk to the health and safety of a person at the employer's place of work that arises from the conduct of the employer's undertaking. Where it is not reasonably practicable to eliminate the risk, the employer must control the risk: clause 11(2). 174 In addition, Mr Searle submitted that the 2005 Regulation that commenced operation on 1 March 2006, deals specifically with the issues and difficulties identified by the applicant Union. The Explanatory Memorandum and the WorkCover presentational material contained in Exhibits 88 and 91 also provide a useful overview of the provisions of the 2005 Regulation. 175 These responsibilities cannot be derogated from, notwithstanding the fact that more than one person has a responsibility for the occupational health and safety of a particular employee. In these situations each person retains responsibility and needs to coordinate efforts with the other person(s). 176 The OH&S Act 2000 and the 2001 Regulation introduced legislative changes which formalise the joint and several responsibilities to ensure occupational health and safety in contract business situations, such as where a consignor engages a company to transport freight, or a freight transporting company engages drivers of trucks in arrangements other than employment. In particular clause 8 of the Regulation states: If more than one person has a responsibility with respect to a particular occupational health and safety matter under this Regulation: (a) each such person retains responsibility for the matter, and (b) the responsibility is to be discharged in a coordinated manner. 177 Mr Searle further submitted that a key component in ensuring safety in the industry in what the Union refers to as the "chain of responsibility" is the role of the customers of the transport operators. This important aspect is not dealt with in the Union's application, but is covered in the 2005 Regulation at clauses 81B(3), 81C, 81D(3)-(6), 81E and 81F. 178 In oral submissions, Mr Searle submitted there was a real concern of the risk of confusion arising from two obligations which overlap on the same subject matter and he relied on the evidence of Mr Watson in this regard. The Minister proposed a model clause in the following form: All parties to the Award have obligations imposed upon them by the Occupational Health and Safety Act 2000 and the Occupational Health and Safety Regulation ('OHS law"). An employer's responsibilities under OHS law include the requirement for an employer to identify, assess and eliminate or control risks to health and safety, including fatigue. 179 Mr Searle accepted that the issue of remuneration was outside the scope of the occupational health and safety legislation and could appropriately be dealt with by the Commission. Mr Searle also accepted that the regulation does not specifically require a new and different safety plan for each specific trip. 180 Mr Searle added that it was very unlikely that the New South Wales Government would agree to any national regime which detracts from the 2005 Regulation already in force in this State. 181 Ms Painter of Counsel, who appeared for Woolworths, accepted that the Union's amended application did not seek to bind her client. However, Woolworths rejected the Union's suggestion that it had not audited or checked that its contract operators are acting legally or that it should somehow be responsible for the drug taking or falsification of documents by the Union's members. She submitted that the focus should not be on more regulation, but rather on compliance with existing laws and regulations. 182 We reiterate that we have grave concerns with the impact of the serious and unacceptable occupational health and safety issues revealed during these proceedings on the long distance road transport industry - its participants and the general public.
183 We accept that these issues are not new, nor have they gone unnoticed or unattended to by the industry itself and Government through recent and pending initiatives. The questions before the Full Bench are whether these initiatives have gone far enough; whether existing regulation is sufficient and whether the Union's proposed award and contract determination will adequately address the problems or merely create more confusion, duplication or even avoidance. 184 This brings us to consider the desirability of award and contract determination provisions for the introduction of safe driving plans as proposed in the Union's amended application of 8 March 2006 (Exhibit 44). We believe there is much to commend in the Union's proposal, particularly as it was modified in significant respects during the course of the proceedings, in light of various concerns expressed by the employer parties. 185 In our opinion, the Union has established that there exists a clear relationship between driver fatigue and the remuneration systems which are used to pay long distance drivers. To the extent that the 2005 Regulation does not include the impact of remuneration systems on driver fatigue, nor was it intended to, (see evidence of Mr Watson from WorkCover), we consider that the Union's proposal addresses this omission. We also note the employer's evidence that compliance with the 2005 Regulation does not necessarily require the formulation of a safe driving plan for each trip undertaken by a driver. This aspect is also addressed in the Union's application. 186 On the other hand, we have carefully considered the employers' and the New South Wales Government's submissions concerning the undesirability of duplication between the Union's proposal and matters properly dealt with under the Occupational Health And Safety Act and associated regulations, particularly the 2005 Regulation. We would agree with the industry's acknowledgment of the New South Wales Government's initiatives in introducing the 2005 Regulation. The Regulation together with a greater awareness of the need to manage fatigue arising from the Hitchcock judgment, will no doubt have a major impact on focusing the industry's attention on its safety responsibilities. However, the fact there may be duplication or phasing in difficulties with what is required by the 2005 Regulation and an award provision would not of itself be a sufficient basis for rejecting the Union's claim. 187 Indeed, the very fact that the New South Wales Government introduced a discrete and specifically focused Regulation to address driver fatigue in the industry, is supportive of the proposition that the more general obligations under the Occupational Health and Safety Act would be assisted by further regulation to meet the industry needs and, in the public interest. Any further regulation or requirement which provides an even greater emphasis and focus for the parties as to their obligations and duties to provide a safe working environment for employees is to be encouraged particularly given the parlous state of safety in the transport industry; accepting of course that such further obligations should not be in conflict with other legislative or regulatory requirements. In this regard, we do not consider that the Union's proposal is in conflict, save for one matter to which we will shortly refer. 188 It is to be observed that much of the criticism of the Union's proposal during the course of the employer's evidence was a concern about "too much paperwork". Three things may be said about that criticism. Firstly, the Union's proposal would require the filling out of a simple one page form. (See Annexure B). Secondly, the industry is already well accustomed to the filling in and recording of driving records through the requirement for log books to be maintained. Thirdly, there was a recognition that a safe driving plan could be directly communicated through the drivers' handheld computer. 189 While we consider the problems identified by the employers as to duplication and confusion may be much overstated and exaggerated, we are prepared to accept what, in essence, will be a trial period for the new arrangements. We consider that a period of 12 months from the date of this decision would be sufficient to satisfactorily establish whether the problems identified by the employers are a real consequence of this application being granted. We will therefore require that a review of the new award arrangements should be undertaken upon application by any of the parties after the expiry of 12 months. This would have the added advantage of reviewing the effectiveness of the award and contract determination provisions, the 2005 Regulation, any future federal initiatives and what we earnestly hope will be a marked positive change in the safety culture in the industry. 190 The one area of significant departure from the Union's proposal with the existing practice in the industry was the definition of long distance work. We detailed earlier the parties' respective arguments on this issue at paras [64] to [88]. 191 As we understand the argument, the issue is not whether the concept of long distance is based on a single journey travelled of 100 km or 500 km, but whether excessive driving work undertaken by a long distance driver, without appropriate breaks, is such as to be a major factor in driver fatigue and consequently driver and public safety. 192 It was apparent from the submissions of the parties that there was considerable confusion as to the interpretation of the definition in the various transport awards, the 2005 Regulation and the Australian and New Zealand Standard Industry Classification, all of which use the measure of 500 km, albeit in different contexts. 193 We consider that the evidence of the employers and of WorkCover as to the industry's understanding of how the 500 km is applied, very much supported the real concern of the Union: that is, that the 500 km should be measured as a single journey or series of journeys completed in excess of 500 km within the same shift. 194 However, we note that this broader approach is not supported by the language of the definition in the 2005 Regulation. The definition is based on the cartage of freight and is not framed by reference to the distance which might be travelled by a driver in a single trip or, for that matter, during any other period of time. 195 On the other hand, we do not consider that the definition proposed by the Union in its amended application is consistent with the industry's long held understanding and application of the notion of long distance work and would cause confusion with existing award and regulatory provisions. 196 In order to address what we understand to be the real basis of the Union's submissions we propose to award the following definition of long distance work: "any single journey or series of journeys in any one shift of more that 500 km, including the distances travelled in delivering freight and travelling after the delivery of freight." BLUECARD TRAINING 197 The Union's claim on this issue was expressed in the following terms: All new and existing employees and contract carriers engaged by transport operators, and any labour hire employees utilised by transport operators, unless currently in possession of a valid Bluecard, shall undertake a Bluecard Program paid for by the transport operator, and conducted by a licensed Bluecard Program training provider, in conjunction with the transport operator and a Union representative. Existing employees, contract carriers and labour hire employees will be so trained within 3 months of the date of operation of this Award. All employees, contract carriers and labour hire employees shall be paid no less than their usual rate of pay whilst attending a Bluecard Program training course, and shall also be reimbursed for any expenses reasonably incurred in attending such a course.
From 3 months after the date of operation of this Award, no employee, contract carrier or labour hire employee shall be permitted by a transport operator to perform work under a long haul transport contract unless in possession of a valid Bluecard. 198 Bluecard training is a basic occupational health and safety training system at accreditation which is fully supported by the Road Transport Association. The requirement exists in many TWU awards and agreements in the industry with nearly 10000 issued to transport workers as at November 2005. The Union described the Bluecard as a recognisable portable occupational health and safety skills passport which moves with the worker as a ready, recognisable indicator of occupational health and safety basic skills possessed by the worker. 199 The Union pointed to the evidence of Mr Watson from WorkCover who supported the existence of the portable qualification in the industry. 200 Mr Hatcher submitted that the only employer objection to the proposed Bluecard system was the involvement of the Union in the training. He said that if the claim for Union involvement was not made out, then the underlying principle of the claim should still be approved as it is already widely supported in the industry as the RTA's involvement attests. 201 Mr Kimber said there was no need for prescription for Bluecard training as it was common ground that the system was extensively used within the transport industry. In any event, the Union should not be enshrined in the process. 202 Mr Kimber said there were many forms of effective training other than Bluecard which are currently used and should continue to be open for transport operators to provide to their drivers. Mr Kimber referred to the evidence of Mr Arnel who deposed to unnecessary logistical problems in arranging training involving a Union representative. This would limit a company's ability to provide training. Mr Kimber also referred to other awards in the transport industry which have been made by consent and which do not necessarily involve the Union. 203 Mr Warren also expressed concern that the involvement of the Union in the training process for Bluecard accreditation may exclude transport operators from obtaining or continuing with certain federal government construction projects. 204 Mr Warren further submitted that Employers First did not oppose the system of Bluecard but expressed reservations with duplication and that it may be an insufficient qualification for access to construction sites. Employers First also strongly opposed Union involvement in the process. 205 As will be apparent there was no substantive employer opposition to the principle or detail of the Union's proposed clause relating to Bluecard training; save for the mandatory requirement for Union involvement. 206 It is obvious that Bluecard training is widely supported in the industry as a recognizable portable occupational health and safety skills passport. 207 In view of its wide acceptance and application in the industry we see no basis for refusing to grant the Union's application that such training be incorporated as an award provision or contract determination. However, we do not consider it necessary to include an award requirement for a union representative to be involved in the training. We decline that aspect of the Union's proposed clause for the following reasons: s Bluecard training has been provided by employers for a number of years without the mandatory involvement of the Union; s there was no evidence of any disputation as to the accessibility, delivery or quality of the training provided; s the existing training requirement applies in other transport awards, made with the consent of the Union; s the Transport Workers' Union conceded that the principle of Bluecard training being included in the award should be accepted, even if the inclusion of union representation was denied. INDUCTION TRAINING 208 The Union proposed to include within the individual instruments a clause dealing with induction training: A transport operator shall allow an authorised workplace delegate of the Union (or for any workplace that does not have an authorised workplace delegate of the Union, an officer of or other person authorised by the Union) to provide all new and existing employees, contract carriers and labour hire employees with induction training. Such induction training shall consist of a presentation of at least 30 minutes (to groups of not more than 15 persons) and shall include the following topics:
(i) the rights of employees, contract carriers and labour hire employees under relevant industrial instruments;
(ii) explanation of provisions in industrial instruments specific to safe driving (including applicable payment systems, meal breaks, breaks between shifts, and maximum working hours, and the provisions of this industrial instrument); (iii) the requirements of the Regulation, and fatigue management and medical assessment issues generally; (iv) the organisation, role and structure of the Union, including how to join the Union if the employee, contract carrier or labour hire employee so desires; and any additional topics as agreed between the transport operator and the Union. Transport Operators shall: (i) provide a suitable venue for induction training to be delivered; (ii) consult with the Union to establish a mutually convenient timetable for the delivery of induction training to employees and contract carriers; and (iii) pay all employees and contract carriers for all time spent in such induction training. 209 Mr Hatcher relied on Mr Forno's uncontested evidence that there is widespread ignorance amongst employees and contract drivers of their industrial entitlements and occupational health and safety obligations and that basic training at the time of employment on these issues would assist in combating these problems. Mr Forno also gave evidence of an existing industry-wide induction training requirement under the Transport Industry Motor Bus Drivers and Conductors (State) Award. 210 Mr Hatcher submitted that no employer had led evidence against the value of such induction training. Rather, the thrust of the employer's objections was only that they did not 'prefer' Union involvement in the process. Mr Hatcher noted Mr Forno's evidence of a link between unionisation and better safety outcomes. Mr Hatcher submitted that if the employer was concerned about the cost of training, the Union accepted that it would supply the training at no cost to the employer. 211 Mr Kimber submitted that there was no need for induction training to be included in an industrial instrument as this was properly the prerogative of management as to how induction is to occur. The requirement should be left to individual transport operators, and should in any event not require Union involvement. In this regard Mr Kimber relied on the following evidence of Mr Arnel: The Application states at clause 7, that induction training must be carried out by "an authorised workplace delegate of the Union" ("TWU Delegate"). The requirement for a TWU Delegate to be involved in induction training, makes this part of the Application inappropriate and untenable for labour hire employees. Firstly, the TWU Delegates may not have a thorough knowledge of Labourforce and/ or its client's businesses to facilitate induction training to the level currently provided by our own staff. Secondly, as labour hire employees rotate between numerous different clients and positions, either driving a truck or forklift, carrying out yard duties etc in any industry (not specifically transport), to have a TWU Delegate carry out the induction training at the time the labour hire employee arrived at work, would result in the work for which they are being paid, never being completed. Thirdly, the fact that the TWU Delegate is entitled under the Application at clause 7.2 to discuss non-safety related issues, such as how to join the TWU, will likely lead to significant time wasting and will affect the costs of productivity for both Labourforce and our clients, due to the undue delay in induction training will likely involve. This would also irritate other Union bodies who may have some involvement with Labourforce employees, who also have coverage. 212 Mr Warren also submitted that the Union should not be involved in the process that is paid for by the employers or that the Union might be paid to conduct such training. He also put that there was a very real concern that the inclusion of this provision may preclude the transport operator from participation in federal Government projects by force of the Building and Construction Industry Improvement Act 2005. 213 While we accept that there are benefits for employees and employers in the induction training of employees, we do not consider that a case has sufficiently been made out for such a mandatory requirement in the award or contract determination. We consider that the matters relating to health and safety, which are set out within the proposed induction training program, should ordinarily be dealt with in the Bluecard training to which we have earlier referred. 214 In addition, we consider that such other induction training as may be required by the employer for the necessary induction of its new employees is properly a matter for the employer to consider in light of its operational requirements. That is not to say that the Union should not be able to co-operate with the employer and participate with any such training. Indeed, that situation should be positively encouraged. However, the manner of delivery, timing and subject matters included in such training should be at the employer's discretion.
DRUG AND ALCOHOL POLICY 215 The Union's proposal for all transport operators to develop and implement a drug and alcohol policy was as follows: All transport operators shall, within six months of the date of operation of this Award, develop and implement a written drug and alcohol policy which is designed to ensure that: (i) professional drug-taking amongst its employees, contract carriers and labour hire employees is entirely eliminated; and
(ii) no employee, contract carrier or labour hire employee performs work whilst impaired by the effects of drugs or alcohol;
and which otherwise conforms with the requirements of this clause. The drug and alcohol policy to be developed and introduced by a transport operator shall:
(i) be tailored to correlate with the transport operator's size, resources, and the nature of its operations;
(ii) make provision for the implementation of a fair and transparent system for testing for the presence of drugs and alcohol in employees, contract carriers and labour hire employees;
(iii) provide for paid training of employees, contract carriers and labour hire employees in relation to the requirements of the policy and safety issues associated with drug and alcohol use generally, with such training being carried out in conjunction with a Union representative; and (iv) be integrated with any safe driving plans developed pursuant to clause 3 of this Award. The drug and alcohol policy to be developed and introduced by a transport operator shall be consistent with the following principles: (i) Professional drug use is the major cause of impairment to the driving and general work performance of employees, contract carriers and labour hire employees in the transport industry, and its elimination must therefore be the primary focus of the policy to be developed. (ii) Professional drug use occurs because of driver fatigue, so that to eliminate professional drug use it is necessary to ensure that employees, contract carriers and labour hire employees are not required to, and do not, perform work in such a way or to such an extent that driver fatigue occurs.
(iii) Alcohol and/or drug problems arising from recreational use should be dealt with as health problems, with an emphasis on education and rehabilitation.
(iv) Transport operators should provide training and guidance to their managers and supervisors to ensure that they: (a) do not impose work pressure on employees, contract carriers and labour hire employees which may lead to professional drug use;
(b) recognise when employees, contract carriers and labour hire employees are becoming fatigued to the extent that professional drug use may become necessary; and
(c) know how to satisfactorily and fairly deal with employees, contract carriers and labour hire employees whose work performance or conduct is affected by alcohol or drugs. (v) Transport operators, managers, supervisors, employees, contract carriers and labour hire employees must all comply with the policy once it is in place and must cooperate with each other to prevent incidents arising from the consumption or use of alcohol and other drivers.
(vi) Transport operators have an obligation to respond to and investigate any information provided to them which suggest that either its employees or contract carries or labour hire employees are engaging in professional drug use, or that work pressures on employees, contract carries or labour hire employees are such as to make it likely that professional drug use will occur.
(vii) Personal information received from or about employees, contract carriers or labour hire employees as a result of self disclosure, testing, counselling, treatment and/or rehabilitation shall be treated with the strictest confidence. (viii) Drug and alcohol testing shall be carried out in a way which: (a) responds to signs of impairment on the part of the employee, contract carrier, or labour hire employee;
(c) respects the privacy of the person being tested;
(d) is as least personally invasive as possible (e.g. by use of saliva testing);
(f) involves a secure chain of custody procedure with respect to any samples taken;
(g) allows a second sample to be provided to the employee/contract carrier/labour hire employee to allow independent testing to be carried out if necessary. (ix) Employees, contract carriers and labour hire employees who voluntarily disclose professional drug use or a personal drug or alcohol use problem shall not be subject to disciplinary action but shall be provided with counselling, training, and if necessary, treatment and rehabilitation. Transport operators shall develop their drug and alcohol policies in consultation with employees, contract carriers, labour hire employees and the Union. Where there is a dispute about any aspect of the drug and alcohol policy being developed, the policy shall not be implemented until the dispute has been resolved in accordance with the disputes procedure of this industrial instrument. 216 Mr Hatcher submitted that in view of the uncontested evidence of the widespread driver use of drugs to combat fatigue, there was no evidence from the employers against the overwhelming proposition that all transport operators should be required to have a drug and alcohol policy. 217 Mr Forno responded to the main criticisms of the Union's claim in this way: " The main criticisms appear to be: firstly, that the proposed clause would prevent certain methods of testing; secondly, that the proposed clause would prevent random testing; and thirdly that the clause would allow the TWU to hold up or obstruct the implementation of drug and alcohol policies.
In relation to the method of testing the application does not intend to be prescriptive, or to prohibit any particular mode of testing. If there are two methods and one is less invasive then you use the less invasive position. Transport Workers, in my experience find Urine testing extremely personally invasive, so where a less invasive method is adequate for the purpose that is to be preferred.
I refer to the criticism in the evidence that suggests that the parameters put forward would not allow random testing. Nothing in the application is intended to prohibit random testing. What we have proposed is a basic testing system, under which a response is required to any signs of impairment. We want a uniform system across the industry that meets at least that basic standard. If individual employers want something additional to that, which might be more costly, then, as long as it is fair and consistent with the parameters in the application then could have no objection. We are parties to agreements which permit random testing, such as the Linfox policy, a copy of which is attached to my principal statement. The random testing allowed by that policy is acceptable in that where there is a decision to test a site, the entire site, from management down is tested, including any outside hire working out of the site.
Drug and alcohol testing is a charged issue and for obvious reasons is taken very personally. It has to happen in a fair way with consultation with all stakeholders and interested parties. The suggestion in some of the evidence that the proposed clause will give the Union the capacity to stop the implementation of policy is absurd. We are the only ones putting a proposal for testing forward. It is outrageous for Grace (paragraph 42) and others to criticise us when we are the first to propose this type of regulation. The New South Wales Road Transport Association tabled something in conciliation in around April last year but nothing further was heard about it. It is simply disingenuous to now attach that proposal to evidence and assert that there was an intention to apply for a clause. In any event the proposal was totally inadequate because it was based on drug and alcohol policies applicable in other industries, where the mindset and focus is on alcohol consumption and recreational use. It totally ignored the major problem in the transport industry, namely professional drug use. Any drug and alcohol provision applicable to the transport industry needs to focus on eliminating profession drug use, which requires a much more holistic approach to the problems underlying such usage." 218 As to the method of testing, Mr Hatcher submitted that the evidence of both Dr Perl and Dr Marshall was that no method of testing, ie urine or saliva, could predict impairment. However Dr Perl's evidence should be preferred in so far as the advantages of urine testing over saliva testing as urine testing may detect drug use over significant periods of time.
219 During the hearing, Mr Hatcher submitted that the Union's proposal was not meant to be prescriptive and that its application accommodates a range of policies having regard to the circumstances, size and other exigencies of the business. 220 This proposal should be seen as part of the package to remove excessive hours, remove fatigue and remove the need for drugs to be used. 221 While Mr Warren had suggested that the drug and alcohol policy was too onerous on small operators, Mr Hatcher replied that there was no evidence that smaller operators were underresourced or unable to implement such a policy. Moreover, the evidence reveals that the preponderance of drug use was to be found in the small companies, making application of such a policy more necessary at their level. 222 Mr Hatcher referred to the debate between Dr Perl and Dr Marshall about the preferred method of testing. He emphasised that the application does not seek to prohibit any particular method of testing, but rather where the methods of testing can achieve the intended purpose, the least invasive method should be used. Dr Perl's comprehensive expert evidence demonstrated that saliva testing is more likely to give a result of recent drug use, than urine testing, although both tests cannot determine impairment. 223 As to whether a test is to be consensual, Mr Hatcher submitted that the intention was that an employee cannot be physically forced to take a test and that so long as the policy is applied in a fairly measured way, there may be consequences which flow from an employee's refusal to undertake a test. In this context Mr Hatcher relied on the Commission's decision in Australian Workers Union, New South Wales v BHP Steel (AIS) Pty Limited [2003] NSWIRComm 461 (Exhibit 96) and in particular the following paragraphs: 19.31 The AWU submitted that this clause in its existing form is liable to cause confusion and that on its face, it contains an element of double jeopardy. This arises because refusal to undertake a test on the one hand is deemed to be a positive test result with the accompanying consequences and then further or additionally, it is to be treated as a disciplinary matter in the same way as any other refusal on the part of an employee "to comply with a Company Policy or procedure".
19.32 For its part, BHP argued that no evidence had been led pointing to elements of confusion and secondly, that this clause is clearly referrable to a first refusal (which invokes the deemed positive result) and a further refusal (which has other connotations). We would observe that the comma after the word "Further" in the second sentence of the existing clause 8.0 of the Policy lends itself to a different construction than that for which BHP contends and adds weight to the AWU contention. The comma has the effect of giving the word "Further" the same or similar meaning as the words "in addition to the foregoing". If the comma were removed, the word "Further" would be given its adjectival meaning by reference to the word following it namely, the word "refusal". We are of the view that there should be a form of disciplinary sanction available for appropriate use in cases where there is repeated refusal to undertake tests. This is particularly so when it is considered that the AWU has adopted a position in support of a testing regime per se.
19.33 For clarity, we recommend the removal of the comma after the word "Further" at the beginning of the second sentence of the existing clause 8. We otherwise make no recommendation for change to this clause. Again, however, we point to the need for considerable care to be exercised by BHP in the implementation of this aspect of the Policy particularly as to the reasons why an employee may refuse to undertake a test. A clear example of the inappropriate application of disciplinary sanctions is to be found in the decision of the Full Bench of the Western Australian Industrial Relations Commission in Larkin v Boral Construction Materials Group Ltd 2003 (WAIRC 07963, 20 March 2003). In that case, it was found that the employee's dismissal following a refusal to undertake a drug test was an oppressive exercise of the employer's right to dismiss and it seems to us that the case stands as others may also, as a clear statement of the need to approach the use of disciplinary sanctions within the context of the Policy with due care and caution.
19.34 Finally, we recommend that the Policy may be reviewed in 12 months upon an application to that effect.
224 Mr Hatcher rejected any suggestion that the Union's application prohibited random testing. Subject to proposed controls and safeguards, the policy does provide for random testing. 225 Mr Hatcher proposed that there be a period of 6 months for employers to implement the policy with any disagreement being dealt with under the disputes procedure. 226 Finally, Mr Hatcher submitted that the problem with the RTA's proposal was that it left to the employer's discretion whether a policy was used or not. This would defeat the purpose of any useful approach to drug and alcohol testing. 227 Mr Kimber submitted that the respondent accepted that there is a level of drug abuse amongst drivers which is unacceptable. He criticised the Union's proposal as inadequate in that it does not allow for random testing of drivers and requires any testing to be consensual. He proposed an alternative draft which attended to these matters (see exhibit 56). 228 Mr Kimber also submitted that there was no reason why drug and alcohol training need be carried out in conjunction with a Union representative. He also said it was inappropriate to provide scope for the Union to dispute the content of a drug and alcohol policy which could result in indefinitely delaying implementation of a policy. This was likely given the historical reluctance of the TWU to accept drug and alcohol policies at the work places of its members. 229 Mr Warren submitted that the Union's proposal would significantly weaken existing drug and alcohol policies, either in force or being constructed by transport operators in New South Wales which apply the provisions of Australian Standard AS/N25 4308 : 2001. This is the only recognised standard for such testing and collection in Australia. Mr Warren added that there was no standard in Australia for the Union's preferred method of saliva testing. 230 Mr Warren also criticised the Union's proposal based on it being only applied with the consent of the drivers. This would create a drug and alcohol regime which was unenforceable and virtually worthless. The Commission should not grant an application which would lessen a transport operator's ability to ensure a safe workplace in accordance with its responsibilities under the Act. 231 In oral submissions Mr Warren submitted that it would be a significant burden on small transport operators to have a drug and alcohol policy of the type considered in the Australian Workers Union v BHP case or that implemented by Patricks or Boral which applied the Australian Standard. The approach should be on a case by case basis. 232 We do not consider it could seriously be suggested that the requirement for all transport operators to have a drug and alcohol policy, which includes drug and alcohol testing, is not a highly desirable tool to combat the widespread use of drugs by employees in the road transport industry. In many ways, it is most surprising that the initiative in this regard has been from the Union. It is trite to observe that there has been a long held resistance from Unions on behalf of their members for drug and alcohol testing sought to be introduced by employers. 233 We would suggest that rather than criticising the proposal, the Union's acknowledgement of the need to address this issue should be welcomed. Such criticism, we think, is largely disingenuous. 234 We do not consider that the employers' criticism of the Union's proposal based on a failure to provide for random testing and an insistence on a preferred method of testing is sustainable from a strict reading of the draft proposal. We accept Mr Hatcher's submission that the draft proposal is not meant to be prescriptive and does not prevent random testing. We consider, however, that the policy should specifically allow for random testing. We also consider that the policy should also contain the following additional features:
(a) testing may be non-consensual; (b) para (viii)(d) of the provisions should also allow for urine testing;
(c) the provisions should specify what is to occur where a positive test result is recorded and verified. 235 We note that provision is made for any dispute concerning the development of an individual policy is to be dealt with according to the disputes procedure in the relevant industrial instrument. This should be sufficient in addressing any practical difficulty which might arise as to the policy itself or its application. 236 We would particularly reject the employers' objection to the proposal as placing an onerous burden on small transport operators. The evidence was abundantly clear, that if anything, the problems of drug taking by drivers is more acute and widespread in smaller transport operations where the delivery and costs pressures are greater.
NATURE OF INDUSTRIAL INSTRUMENT 237 As we observed in Re Transport Industry - Mutual Responsibility for Road Safety (State) Award and Contract Determination (2006) 152 IR 140 at paras [20] to [22]: 20 It must be accepted that the industrial regulation of the transport industry in this State, and the legislation underpinning that regulation, has had to take cognisance of the fact that the industry utilises two primary forms of working arrangements: on the one hand, the relationship of employer and employee, and on the other, of principal contractor and subcontractor or independent contractor.
21 Often an employer who employs employees will also utilise independent contractors; others will compete with one company using only employees against another using only subcontractors; and others may use a combination of both.
22 The different forms of industrial regulation have been a response to the way the different forms of "employment" in the transport industry have developed in New South Wales during the twentieth century. In this case, without determining the correctness or merits, or otherwise, of the TWU application, it is plain that the issue at the core of the application - the safety of drivers - is not limited to one sector of the industry but is an industry wide issue. To uphold the jurisdictional argument of the respondents at this stage of the proceedings would, in our opinion, artificially constrain the orderly presentation and testing of the evidence in what may be a very significant case; particularly, as we have observed, because many operators appear to use two forms of regulation. 238 While it hardly needs restating, the issues we have identified in this case are not confined to a particular sector of the industry or class of driver, be they employees or contract carriers. 239 That being so, it would be illogical not to incorporate the proposals we have approved in this decision in both an Award made under s 10 of the Act and a Contract Determination under s 316. We therefore will make orders and award accordingly.
ORDERS AND DIRECTIONS 240 The Full Bench of the Industrial Relations Commission makes the following orders and directions:
Professor Michael Quinlan - Professor of the School of Organisation and Management at the University of NSW
Associate Professor Anne Williamson - Deputy Director of the NSW Injury Risk Management Research Centre, University of NSW
Mr Richard Olsen - TWU South Coast and Southern Sub Branch Secretary
Mr Mark Crosdale - TWU Newcastle and Northern Sub Branch Secretary
Associate Professor Michael Belzer Associate Professor of Wayne State University, USA
Mr John Watson - General Manager of the Occupational Health and Safety Division of WorkCover
For Australian Business Industrial, Roads and Traffic Authority and Toll Transport
Mr Rod Grace - (NSW) RTA Employment Relations Manager
Mr Phillip Crook - General Manager Industry Liaison - On Road Compliance for Toll Networks Division
Mr Hugh McMaster - (NSW) RTA Corporate Relations Manager
Mr Martin Green - TNT National Road Linehaul Manager
Mr Aaron Leach - New Zealand Transport Manager for Linfox Australia
Mr George Wolstenholme - JW Express Managing Director
Mr Ross Coleman - General Manager, Coastal Transport Services, Warenvale
Mr Colin Hancock - TNT Vehicle Logistics National Operations Manager
Mr Tony Yule - TNT Logistics Regional Transport Manager
Mr David Arnel - Director of Corporate Services of Labourforce Solutions
Mr Bob MacKenzie - TNT Australia National Manager, Industrial Relations
Mr Don Hughes - NSW Grocery Manager for Toll Food and Beverages
Mr Nigel Ward - General Manager Human Resources and Employee Relations for Australian Construction Materials Division of Boral Ltd
Mr Phillip Robertson - Readymix Transport Manager - Raw Materials
Mr Douglas Harris - Boral Transport Limited, Southern NSW Regional Manager
Mr Leo Upton - Projects Manager for Patrick Autocare
Mr Andrew Simpson - National Linehaul Manager for Patrick Corporation
Mr Norman Marshall - Chairman of Australian Drug Management and Education
Mr Brian Warry - Woolworths Limited, National Transport Consultant
Annexure B Safe Driving Plan (Example) Delivery Period and PUD Details Remuneration Operator/Consignor Identification How Work is Remunerated having regard to health and safety Kilometre rates for driving and hourly rate for loading/unloading/queuing time Pick Up Location: XYZ Toll Minchinbury Distribution CentreRemuneration Method and Rate: Consignor: Transport Industry (State) Award - Grade 7 Long Distance Rates (29.54 cents per km) plus Hourly rate of ($17.25 base) for all time loading/unloading/queuing. Delivery Location: Transport Operator: Toll XYZRemuneration Monitoring/Measuring Systems: GPS, On Board Computer, Auditing cross checks of pay, log book, timesheet, consignment note, GPS & Engine Records, SDP Period:
12.30 pm Delivery WindowMeans to Limit Work Hours and Work Contact with manager () for reporting unexpected delays and rescheduling journey if necessary
Planned Application of Hours Planned Total Trip Time: 11.75 hours 7am - 15 minute pre-trip inspection 7.15 am to 12.00 pm (Minchinbury - Wagga Wagga) 4.45 hrs driving 30 minutes break prior to unloading 12.30 - 1.30 pm loading unloading 1.30pm to 4.15pm (Wagga Wagga/Marulan) 30 minutes Marulan (4:45pm) 4.45 - 6.45 Marulan - Minchinbury 2 hours Confirmation that driver has been inducted and trained in OHS policy Confirmation that driver has been inducted and trained in company D&A policy
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Australian Workers Union, New South Wales v BHP Steel (AIS) Pty Limited [2003] NSWIRComm 461 Beacham v Interface Manufacturing Pty Ltd and Another [2005] NSWIRComm 123 CFMEU v Newcrest Mining Limited (2005) 139 IR 50 Engine Drivers et (South Maitland Railways Ltd) Conciliation Committee, Re [1938] AR (NSW) 266 Ex parte McLean (1930) 43 CLR 472 Glass v Flexible Packaging (Australia) Pty Limited (2005) 144 IR 385 Glass Makers (State) Conciliation Committee, Re [1944] AR (NSW) 292 NAQF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781 Operational Ambulance Officers (State) Award, Re (2001) 113 IR 384 Pastoral Industry (State) Award, Re (2001) 104 IR 168 Regina v Randall John Harm, Unreported, District Court of New South Wales, 26 August 2005 CASES CITED: Secure Employment Test Case (2006) 150 IR 1 Shop, Distributive and Allied Employees Association v Retail Traders' Association of Victoria (1998) 83 IR 352 Social and Community Services Employees (State) Award, Re (2001) 117 IR 458 Steel Works Employees (Broken Hill Pty Company Ltd) No.2 Award [1964] AR (NSW) 696 T and M Industries (Aust) Pty Ltd and Anor v WorkCover Authority (NSW) (Inspector Sequeira) (2006) 151 IR 130 Transport Industry - Cash in Transit (State) Interim Award [2001] NSWIRComm 220 Transport Industry - Mutual Responsibility for Road Safety (State) Award and Contract Determination, Re (2006) 152 IR 140 Transport Industry Motor Bus Drivers and Conductors (State) Award (2005) 353 IG 760 Unions NSW v Carter Holt Harvey (2006) 149 IR 361 WorkCover Authority (NSW) v T & Y Pty Ltd (2005) 146 IR 458 WorkCover Authority of New South Wales v Hitchcock (2004) 135 IR 377 WorkCover Authority of New South Wales v Hitchcock (2005) 139 IR 439
(2005) 139 IR 50
(1930) 43 CLR 472
(2005) 144 IR 385
(2001) 113 IR 384
(2001) 104 IR 168
(2006) 150 IR 1
(1998) 83 IR 352
(2001) 117 IR 458
(2006) 151 IR 130
(2006) 152 IR 140
(2006) 149 IR 361
(2005) 146 IR 458
(2004) 135 IR 377
(2005) 139 IR 439
(2004) 139 IR 439
(1999) 101 IR 239
(2000) 201 CLR 520
(1989) 168 CLR 242
(1978) 140 CLR 470
(1981) 26 SASR 535
(2003) 130 IR 284
(2002) 76 ALJR 1601