LEGAL IMPLICATIONS: Workers using their own vehicles for work purposes

Moderator Jerome Carslake E: jerome.carslake@arrb.com.au NRSPP Manager ARRB Group P: +61 3 9881 1670 E: jerome.carslake@arrb.com.au

Co - Moderator Darren Wishart Principal Professional Leader Safe Systems and Human Factors P: +61 7 3260 3525 E: darren.wishart@arrb.com.au

Today’s presenter Tania Leiman Associate Professor & Dean of Law College of Business, Government and Law P :+61 8 8201 3989 E: tania.leiman@flinders.edu.au http://www.flinders.edu.au/people/tania.leiman

Housekeeping Webinar is = 45 mins Question time = 15 mins + =

GoTo Webinar functions Please type your questions here

Disclaimer This webinar is intended only to provide a summary and general overview of matters of interest. It is not intended to be comprehensive nor does it constitute legal advice. The material in this webinar has been reviewed to attempt to ensure accuracy and currency, but its accuracy and currency are not guaranteed. You should seek legal or other professional advice before acting or relying on any of the material in this webinar.

Today’s Agenda Definitions & Context Areas of Risk Emerging Issues Grey fleet; Worker UK and EU Areas of Risk Work Health & Safety Workers Compensation CTP schemes Licensing of Drivers Liability HVNL Emerging Issues Share economy Data & privacy

Grey Fleet? Vehicles used by a business but not owned by the business owned and used by workers to conduct business hired occasionally and used for business purposes Caroline Fall, ‘Ground breaking grey fleet survey highlights the risk to organisations’, Fleet News 21 October 2016 http://fleetautonews.com.au/ground-breaking-grey-fleet-survey-highlights-the-risk-to-organisations/

Worker? Different definitions in different legal contexts Very expansive definition Work Health & Safety Act 2011 (Cth) s.7

Why should we care? 2003 - 2016 ‘3,414 workers lost their lives in work-related incidents’ ‘39% of worker fatalities due to vehicle collision’ 39% = 1330 people killed + many more workers injured https://www.safeworkaustralia.gov.au/statistics-and-research/statistics/fatalities/fatality-statistics#work-related-fatalities

Grey Fleet in UK & EU UK 40% of work vehicles are grey fleet 14 million grey fleet vehicles are in use 9 million vehicles are used for business journeys on a regular basis 62% of private car use is for work-related activity http://etsc.eu/wp-content/uploads/Grey_fleet_safety_final.pdf Not clear whether grey fleet use in Australia is comparable

Grey Fleet in UK & EU UK EU Corporate Manslaughter and Corporate Homicide Act 2007 s.1 explicit duty of care re use of any vehicle potential statutory liability for corporate manslaughter or corporate homicide EU European Framework Directive 89/391/EEC Requirement to undertake risk assessment http://etsc.eu/wp-content/uploads/Grey_fleet_safety_final.pdf

Grey Fleet in Australia No explicit legislative reference Other existing obligations Work Health & Safety Workers Compensation CTP schemes Licensing of drivers Common Law Negligence Heavy Vehicle National Law

www.nrspp.org.au/resources

www.nrspp.org.au/resources

Work Health & Safety Vehicle as a ‘workplace’ Person conducting business has duty to ‘ensure, so far as reasonably practicable’ health & safety of workers and other persons Implications: Maintenance of vehicles? Travelling times? Safety ratings and features? Driver training? Monitoring devices (e.g. alcohol interlock devices)

Workers Compensation ‘Employment-related’ journey Implications: Eligibility Employer knowledge re maintenance of vehicles? Travelling times? Safety ratings and features? Interaction with WHS & negligence claims? Unsafe systems of work

Emerging Issues… ‘Employment-related’ journeys and ride-sharing? What if … … a worker provided rideshare services to the public for fee whilst travelling in their own vehicle from one business location to another?

Questions

CTP schemes Schemes not nationally consistent Implications: Eligibility Proving fault Employer knowledge re maintenance of vehicles? Travelling times? Safety ratings and features? Interaction with WHS & WC claims?

Licensing of drivers P platers, conditional licences, international drivers’ licences Implications: Is licence appropriate? Is licence restricted? Is vehicle type appropriate?

Questions

Criminal & Civil Liability Director’s duties Foreseeability of harm Vicarious liability Implications: Assessing risk Managing risk & taking precautions Liability for worker’s actions Personal & Corporate liability

Emerging Issues… ‘Foreseeability’ and vehicle recalls? What if … … a business knew their workers used their own vehicles for work purposes and those vehicles were the subject of a vehicle recall but recall-related fixes had not yet been carried out?

Emerging Issues… ‘Foreseeability’ and vehicle data? What if … … a business required workers to keep data about the use of their own vehicles for work purposes and that data revealed a risk of harm?

Emerging Issues… Privacy and vehicle data? What if … … a business required workers to keep data about the use of their own vehicles for work purposes and that data revealed personal / confidential information about that worker?

Questions

Heavy Vehicle National Law Chain of responsibility ‘any person who can influence or control the transport chain’ Implications: Compliance Vehicle standards and maintenance Travelling times Driver fitness Safe practices

Grey Fleet Summary Liability dependent on jurisdiction, legal context & wording of specific legislative provisions Liability may differ across jurisdictions & contexts. ‘Workplace’ includes vehicle Employers have duties to workers and others Legislative definitions ‘reasonably practicable’ and ‘reasonable precautions’ can provide general guide for prospectively assessing risks of harm re grey fleet use

Top Take-away Now is the time to take grey fleet issues seriously… … before they are a problem

Questions