‘Having the appropriate licence does not demonstrate competence’


A decision in the Supreme Court of South Australia under Section 32 of the State’sWork Health and Safety Act 2011 could have national implications for employers in the transport and logistics industries.

The case related to the waste management company Cleanaway Operations. In August 2014, one of its vacuum trucks lost control on a steep section of Adelaide’s South Eastern Freeway and collided with other vehicles at high speed at an intersection, killing two people and seriously injuring two others.

The South Australian Magistrates Court of South Australia convicted Cleanaway on eight counts of offences. As the court said in its decision, Cleanaway had breached its duties under the Act to ensure, “so far is reasonably practicable, the health and safety of its workers, and of other persons”.

More specifically, the court found that Cleanaway had failed to ensure the competency of the driver in selecting the correct gear while driving a manual truck, particularly when descending the freeway. The company was fined $12 million.

Cleanaway appealed the decision to the Supreme Court. Although this court reduced the fine from $12 million to $3 million, it agreed with the lower court’s decision that it was “reasonably practicable” to assess the competence of the driver to drive down the freeway, even considering the driver had a heavy vehicle licence.

In his decision, Chief Justice Chris Kourakis said a heavy-vehicle licence ensured “a minimum, but not always sufficient, standard of competency”.

He added that the company recognised the need to assess drivers’ competence because it employed a person to assess the competency of new drivers.

In this case, the driver’s competency had been assessed only regarding automatic trucks, not manual trucks, even though the ability to make appropriate gear changes was an important safeguard against the risk of collision.

In essence, CJ Kourakis dismissed Cleanaway’s appeal to set aside counts one and two because of a failure to ensure driver competence to drive down the freeway in the vacuum truck; and a connection between the exposure of the risk and the breach of duty was proven as there were reasonably practicable measures available to Cleanaway that if adopted, would have materially reduced the risk.

So, what does this mean for employers in these industries? First and foremost, the Supreme Court decision means that having the appropriate licence does not demonstrate competence. And, if it applies in transport and logistics, it could also apply to other industries that have employees with high-risk licences.

Small businesses, in particular, could be particularly vulnerable. It’s probably fair to assume that most small business employers assume the competence of their operators by them having the appropriate licence.

But based on the South Australian decision, licencing only satisfies a regulatory obligation, and employers need to take an extra step of actually ensuring their employees are competent.

For large transport and logistics organisations, the requisite systems are likely to be in place.

For example, they might have an experienced operator “shadow” a new employee. As the Court said, Cleanaway had a system for verifying competence of its drivers. The problem was it was deployed irregularly.

For larger organisations, this may be feasible. For smaller operators, this may be impractical and overtly burdensome. But it is something they will now have to consider.

Employers outside South Australia also need to sit up and take notice – as I said it could have national implications.

First, a prosecution under the Commonwealth Work Health and Safety Act 2011 could use the South Australian Supreme Court reasoning to apply it to duty holders under the Heavy Vehicle National Law affecting all heavy vehicle operators.

Second, as a decision in a superior court, other jurisdictions will undoubtedly look to the Judge’s reasoning around what training and instruction it is reasonably practicable to provided licensed operators.

It could be a whole new ball game.

  • Liam Fraser, pictured below, is a partner at national specialist workplace law firm Kingston Reid.

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