Fleet managers’ guide to the Health and Safety at Work Act

The Health and Safety at Work Act has implications for fleet managers and companies that own and operate vehicles on the road or on private property. The following article advises company owners and managers who want to ensure they comply with HSWA directives. It does not cover the specifics of carrying dangerous goods on the road, but applies to car and heavy vehicle drivers and motorbike riders that use a vehicle for work.

The full text of the Health and Safety at Work (General Risk and Workplace Management Regulations) is here, and the Health and Safety at Work Act 2015 is here (all 63,000 words). Below we’ve identified the specific clauses which impact a health and safety manager in under 2000 words. Also, this document doesn’t constitute legal advice about the Health and Safety at Work Act and related documents; it is an interpretation to be used by fleet managers to help them determine the best course of action for training their drivers in order to reduce the risk of accidents.

The Health and Safety at Work Act

Purpose

A PCBU (person conducting a business or undertaking) must ensure the safety of their workers in workplaces by eliminating and minimising risks. This is done through education, training, personal protective equipment, setting policies and establishing safe working practices.

Interpretation

There are some specific defined terms which have implications for workers using a vehicle for work.

Engage in conduct: to do or not do something

Hazard: includes a person’s behaviour where that behaviour has the potential to cause death, injury, or illness to a person (whether or not that behaviour results from physical or mental fatigue, drugs, alcohol, traumatic shock, or another temporary condition that affects a person’s behaviour)

Health: includes both physical and mental health

Plant: includes vehicles as well as equipment

Worker: includes employees, contractors, subcontractors, outworkers (including those that work at home), apprentices and trainees and those on work experience, and volunteers (in certain circumstances).

Meaning of workplace

The definition of a workplace includes vehicles.

Section 20 defines this: If your workers a using a vehicle for work, even if it’s just nipping to the dairy for a bottle of milk, they are included within the Health and Safety at Work Act definitions.

Meaning of reasonably practicable

The phrase reasonably practicable is used in relation to how far you should go to protect your workers.

The PCBU must weigh up whether they can do something to mitigate a risk, and section 22 takes it step by step:

• “The likelihood of the hazard or the risk concerned occurring”: According to various Government sources, 33% of fatal workplace accidents are vehicle related, 30% of all vehicle accidents are workplace related, around 25% of all fleet vehicles are involved in some kind of accident each year. Therefore, the likelihood is high.
• “The degree of harm that might result from the hazard or risk”: The highest degree of harm is death, and more than 30 people die per year in workplace-related vehicle accidents.
• “What the person concerned knows or ought reasonably to know”: As very few people engage in ongoing driver training, and as there’s no requirement by NZTA for it, due to memory decay we would reasonably be expected not to know a large number of specific road rules.
• “The availability and suitability of ways to eliminate or minimise the risk”: There are cost-effective, broadly available ways to mitigate the risk, such as our Fleet Driver Training Plan, practical driver assessments, etc
• “…whether the cost is grossly disproportionate to the risk”: In the case of online driver training, the cost is not disproportionate.

Meaning of notifiable injury or illness

Certain types of injury sustained while at work are notifiable.

Section 23 states that if one of your workers has a vehicle accident and suffers certain injuries, the injuries must be reported.

This is also partly covered in sections 24 and 25 under notifiable incident and notifiable event.

Insurance against fines unlawful

You can’t insure against your own lack of action. 

Fines are up to $250,000.

Health and safety duties (part 2)

You have to manage the risks and the PCBU is ultimately responsible.

Sections 30-35 define the duties and responsibilities in relation to managing risks.

Primary duty of care

So far as is reasonably practicable, a PCBU must ensure the health and safety of both its workers AND workers who are influenced or directed by the PCBU (this includes contractors).

The definition of workers is broad, and this section (section 36) is the critical section for defining your obligations to provide a workplace that is as free of risks as possible. We suggest you read section 36 in detail because it covers the work environment (which includes vehicles).

Duty of a PCBU who manages or controls a workplace, fixtures, fittings or plant

Sections 37 and 38 mention ‘plant’ and ‘workplace’ several times. This relates to vehicles.

Plant and workplaces must be maintained as to not cause risks to workers.

Duty of a PCBU who supplies plant, substances or structures

There’s the possibility of interpreting this as if you hire or lease vehicles then you must provide adequate options for training or risk awareness.

Section 42 states “The supplier must, so far as is reasonably practicable, ensure that the plant, substance, or structure is without risks to the health and safety of persons.” Vehicles are not without risks. However, as a company that hires equipment, there could be a legal challenge to this to prove that it wasn’t a greater responsibility of the hiring company to provide drivers who were capable. Still, it’s something to be aware of.

Duties of workers

Workers are required to take reasonable care; they can’t have reckless disregard for safety.

Sections 45 and 46 cover worker obligations. In the case of a driver speeding and having an accident, it could be argued that there was reckless disregard. However, many accidents are not a result of speeding, simply choosing the wrong speed for the conditions. In this case, the worker could argue that they had taken reasonable care in their own opinion.

Offences relating to duties

Fines of up to $3 million could be levied on companies and individuals not complying with the duty of care if it results in a person losing their life or suffering severe injuries.

It’s worth reading sections 47-49. If you don’t provide training, supervision and monitoring to your drivers, and something happens which could have been prevented, then the minimum fine starts at around $100,000, and the maximum is $3 million. You should also read sections 50-52 to determine the liability of certain office holders, and ensure that you understand section 54 which states that if you are charged for an offence, your lack of intention in neglecting your duties is not a defence (i.e. ignorance is not innocence).

Authorisations

Sections 203-208 explain that a workplace must be authorised for use by a worker, and that authorisation can be as simple as giving consent, but also includes authorisations based on legislation and regulations.

This essentially means that you need to have a system for giving permission to workers to use vehicles, ensure that workers that are not authorised don’t use vehicles, and ensuring vehicles are maintained and kept ‘legal’ for the road. ‘Not authorised’ could include things like being disqualified, not having the correct class of licence and not having the correct licence endorsements for the vehicle in question. It also covers vehicles that are not up to WoF standard, or where the RUC, registration or CoF has lapsed.

Fines are up to $250,000.

Regulations

The following relates to the Health and Safety at Work (General Risk and Workplace Management Regulations) document.

Duty to identify hazards

Driving is dangerous and presents a risk to employees and contractors, therefore risks must be mitigated.

Driving-related accidents comprise 30% of all vehicle accidents, and this rises to 50% if you include people driving to and from work. Deaths in vehicle-related accidents account for one-third of all workplace deaths.

Therefore, driving is the one of, if not the, most significant risks for a company that has a vehicle fleet, and therefore the onus is on the company to mitigate these risks.

Hierarchy of control measures

If you can’t eliminate risks, you must take actions to minimise them.

Section 30(1)(a) and (b) says that you must eliminate risks to health and safety, so far as is reasonably practicable and if it is not reasonably practical to eliminate them, to minimise those risks so far as is reasonably practical.

It is impossible for a company to eliminate all risks related to driving. The Act (Section 6(4) and 6(5)) says that you must implement administrative controls and provide suitable personal protective equipment.

Duty to review control measures

When things change that affect risks, you must evaluate what you’re doing to mitigate the risk.

Section 8 says that if anything changes in the workplace, or in anything that affects the workplace, then you need to evaluate your risk. Changes that could have an effect include:

• Changes to road rules
• Upgrading your vehicle fleet to vehicles with new technology that might not be understood
• Your internal systems, processes or procedures have changed.

Duty to provide information supervision, training and instruction

You must ensure that your drivers understand the risks of driving and are given the opportunity to know the road rules and information about their vehicle.

Section 9 is the main section that affects your employees because it says that every worker who carries out work of any kind or uses plant (i.e. vehicles) of any kind must have adequate knowledge of its use and must be trained in the safe use of it.

The Act is very clear in stating that training must be readily understandable by any person to whom it is provided.

The training must cover the nature of the risks associated with the work (i.e. road rules, safe driving, safe operation of the vehicle, etc).

Fines are up to $50,000 for contravening the regulations.

Duty to provide first aid

It may be advisable for you to put a first aid kit in your vehicles.

Section 13 states that you must ensure that adequate first aid equipment is provided for the workplace. A vehicle is a place of work.

Fines are up to $50,000 for contravening the regulations.

Duty to prepare, maintain, and implement emergency plan

You may need to consider an emergency plan for your vehicles.

Section 14 would include vehicles that are driven in dangerous conditions. The requirements for the contents of the emergency plan are stated in the Act.

General duty of PCBU to provide personal protective equipment

Your drivers may need to be supplied hi-vis gear and protective equipment, depending on what type of driving and working in/around vehicles they do.

While section 15 puts the onus on the company to provide the equipment, section 16 states that a worker can provide their own equipment voluntarily. Section 17 defines the requirements around personal protective equipment and sections 18-20 defines that a worker and other persons must wear personal protective equipment they’ve been supplied.

Fines are up to $50,000 for contravening the regulations.

Managing risks associated with remote or isolated work

If your drivers are out on the road or in remote or isolated places then you must provide a system of work that includes effective communication.

Section 21 covers drivers in situations like working on forestry blocks but the wording is broad enough to cover drivers driving between clients.

Fines are up to $50,000 for contravening the regulations.

Raised objects

If your drivers are dealing with loading and unloading, then they must be aware of risks associated with working around raised objects.

Section 24 relates mostly to truck drivers who might be tarping tall loads, working around a truck-mounted crane, unloading using a forklift, etc.

Fines are up to $50,000 for contravening the regulations.

Managing risks associated with loose but enclosed materials

The wording does NOT include mention of carrying unrestrained goods as these are covered under various land transport regulations.

Health monitoring

Sections 33-41 relate to health monitoring, and companies should be aware of fatigue.

The main concern as a company is that your drivers may be performing a very sedentary role and should be made aware of this, plus the impact of sleep and diet on their general health and wellbeing.

Young persons at workplace

Section 47 states that young people (under 15) must not drive a vehicle or ride on one that’s drawing an implement, has an implement attached or rides on an implement, unless it’s connected with agricultural work. 

Mitigating your risk

You can go a long way to covering your Health and Safety at Work Act obligations by purchasing online training for each of your drivers. Click here to view our driver and operator training courses.