Passengers just as liable as drivers

The Australasian Fleet Management Association (AfMA) has released a bulletin outlining the outcome of a recent Fair Work Commission (FWC) case, in which Fair Work Commissioner Danny Cloghan found that a passenger in a work vehicle has the same implied and statutory duty to observe safety signs and communications as the driver.

The finding relates to an incident in December 2014 whereby a Veolia Environment Services worker and colleague travelled to a Cockburn Cement site in Western Australia to perform cleaning services. The driver apparently ignored signs saying a loader operated in the area and that vehicles without a two-way radio were not permitted entry. Drivers were required to contact the loader operator by radio before entering.

The loader reversed into the truck and caused $6000 damage. The driver was fired by Veolia and a warning was issued to the passenger for failing to take reason for his own (and others’) safety.

The Australian Workers Union subsequently applied to the FWC on behalf of the disciplined worker arguing that the the warning was unreasonable.

The commissioner disagreed and found that the worker and his colleague completed a job hazard analysis, which identified the risk of vehicle collisions at the Cockburn site, just hours before travelling to the site, and the worker conceded that he would have alerted his colleague to the signage if he had seen it.

“The reason, according to [the worker’s] evidence, as to why he wasn’t paying attention is that he was having a drink and checking his mobile telephone for any ‘missed calls from family or work’,” Commissioner Cloghan said.

He said the worker initially argued that the signs were only there to warn drivers, and not passengers, but “ultimately agreed, in evidence, that the signs relate to any person who enters the [Cockburn] site”.

“[The worker] was correct to reassess his evidence because the signs are applicable to all persons who approach them... There is no difference in the responsibility of employees who are drivers or passengers in a workplace,” the commissioner said.

“While there may be some exceptions to this broad view, they are not relevant for the purposes of this incident,” he said, adding that a driver’s responsibilities only became “greater” than a passenger’s after a vehicle left a workplace and entered a public road.