|Offender||T.S. & D.E. Cowcher Farms Pty Ltd (ACN 008 935 055)|
|Trading Name||Derek Murray and Co|
|Charge||Charge Number||Offence Date||Date Convicted||Regulation||Section||Penalty Provision||Penalty Imposed||Date Sentenced|
|1||AR9287/10||Between 28/10/2007 and the 1/12/2007||7th June 2011||3.131(1)(a)||1.16(2)(b)(i)||$5,000.00||7th June 2011|
|2||AR9285/10||Between 28/10/2007 and the 2/02/2008||7th June 2011||3.134(1)||1.16(2)(b)(i)||$3,000.00||7th June 2011|
|Description of Breach(es)||
Charge 1- Being a responsible person at a workplace failed to ensure that a record conforming to the requirements of regulation 3.134(2) of the Occupational Safety and Health Regulations 1996, and being in respect of the work time, breaks from driving, and non-work time of each commercial vehicle driver who is required to drive a commercial vehicle that forms the whole or part of the workplace was established and kept current; contrary to regulation 3.134 (1) of the Occupational Safety and Health Regulations 1996, made under the Occupational Safety and Health Act 1984.
Charge 3- Being a responsible person at a workplace failed to ensure that a commercial vehicle driver who was required to drive a commercial vehicle (without a relief driver) that formed the whole or part of the workplace did so in accordance with regulation 3.132 of the Occupational Safety and Health Regulations 1996; contrary to regulation 3.131 of the Occupational Safety and Health Regulations 1996, made under the Occupational Safety and Health Act 1984.
The Accused carried on a commercial bulk haulage transport business, which operated from premises located in Kelmscott. The business operated seven days a week.
Commercial drivers employed by the Accused transported agricultural loads such as corps and fertilisers in vehicles of Gross Vehicle Mass ("GVM") in excess of 4.5 tonnes. The commercial drivers drove pocket road trains which have a Gross Vehicle Mass of 92.5 tonnes.
The commercial drivers, operated as solo drivers (that is they did not drive with a relief driver). They received a 20% commission on the charge of each load they transported. At the time they were also paid an hourly rate both for loading and unloading their vehicles, and for maintenance work carried out on those vehicles at the business premises.
The General Manager of the Accused's commercial transport business, was responsible for the overall supervision and control of the Accused's workplace on a daily basis.
The commercial drivers used two types of sheets to record their driving hours. A worksheet recorded the type of load, destination and weight of each job and a trip sheet recorded the hours worked by the driver.
Charge 1 - During the relevant period the Accused failed to implement a system to accurately record the work time, breaks from driving, and non-work time of the commercial vehicle drivers it employed.
A series of inconsistencies appeared between several drivers' time sheets and worksheets. For example, even though a worksheet noted that driver had engaged in work time as defined by the Occupational Safety and Health Regulations 1996 (WA) ("the Regulations"), that driver's time sheet did not record that time. In the course of an investigation conducted by WorkSafe officials, the general manager employed by the Accused admitted that 'trip sheets' maintained by the commercial drivers did not record all the hours they had worked as required by the Regulations, but only the hours they drove.
Some drivers indicated that the way that they completed their worksheets and timesheets was usually determined by the individual driver. Interviews conducted with commercial drivers employed by the Accused confirmed that only driving hours, and not all working hours were recorded on 'trip sheets'. This is contrary to the relevant Regulations. Additionally, a number of commercial drivers stated they would on occasion record hours worked on one day against the trip sheets for different days.
Charge 3 - Records provided by the Accused to Worksafe during the course of the latter's investigation revealed that a commercial driver had, during the relevant period, worked in excess of the maximum hours permitted by the regulations. The written records supplied for one commercial vehicle driver recorded that he received only 2 days off work between 28 October 2007 and 1 December 2007 (exclusive). While his trip sheets show that he worked every day in this period apart from 11, 17 and 25 November 2007, his worksheets show that he was actually undertaking maintenance work on his vehicle on the 11 November 2007 (which is defined as work time under the Regulations) and the worksheets also showed that he undertook driving activities on the 17 November 2007.
It was the Prosecution's case that after questioning the commercial vehicle driver as to these inconsistencies between the trip sheets and the worksheets, it was agreed that between 28 October 2007 and 1 December 2007, he had worked every day apart from 18 November 2007 and 25 November 2007.
The regulations require (amongst other things) that in a 14 day period, which for present purposes was between 28 October 2007 and 12 November 2007, the driver must have at least 2 periods of 24 consecutive hours non-work time. Alternatively, the driver must have 4 periods of 24 consecutive hours non-work time in any 28 day period, which for present purposes was between 28 October 2007 and 26 November 2007. In the Prosecution's view, the commercial vehicle driver did not have 4 days off in the 28 day period: he only had two days off. In the Prosecution's view, the commercial vehicle driver did not have 2 days off in the 14 day period as he had worked every day in the relevant 14 day period. Accordingly, there is a breach of the regulations.
When Worksafe investigators questioned the commercial vehicle driver about this apparent breach of the regulations during an interview he stated: "We were obviously very busy." and when questioned as to whether the general manager monitored the hours, he stated: "its really up to us to say that we are out of hours".
The Accused entered a late plea of guilty to 2 charges.
|Court||Magistrates Court of Western Australia - Perth|
|Costs||Parties to bear own costs|
Please note that the charges have a global fine. While a penalty is imposed on each charge it is for the global fine and not a separate amount for each charge.
Search the records of all successful prosecutions taken by WorkSafe under the Occupational Safety and Health Act 1984 and Occupational Safety and Health Regulations 1996 since 1st January 2005. Searching and indexing of this database is limited to convictions for offences against the Occupational Safety and Health Act 1984 and Occupational Safety and Health Regulations 1996 committed on or after 1 January 2005, when the statutory offence and penalty regimes were significantly amended.
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