Judge says Cleveland Freightlines’ breaches should never have been tolerated and were always preventable
Cleveland Freightlines has seen its initial $27,000 in total fines, for nine driver record-keeping breaches and six work hours breaches, raised to $58,000 on appeal in the Supreme Court Of Western Australia.
The South Australian firm that transports goods to Western Australia and the non-compliance came to light during driver safety operation by WA authorities in early 2015.
The offences occurred between January 13 and February 25, 2015, and began less than a week after the company had been convicted of and fined for similar offences.
In the earlier case, a magistrate had fined the company $23,000 in total for four record-keeping breaches and 21 work-hours breaches.
Consequently, it came to be sentenced for each offence as a ‘subsequent offence’ under the relevant penalty provision and was liable to a maximum penalty of $62,500 for each offence.
Eighteen months later, the company pleaded guilty in a WorkSafe WA prosecution and was fined $9,000 for the nine record-keeping breaches and $18,000 for the six record-keeping breaches.
It was also ordered to pay $1,335.60 in costs.
The magistrate noted that the total sum of the fines imposed and the costs ordered, “in the context of a small, private company, is a significant amount of money”.
WorkSafe WA appealed, saying the magistrate erred in appreciating Cleveland’s size and that the fines were inadequate to act as a personal deterrent in light of the previous conviction, the seriousness and extent of the offending and the amounts usually ruled for such offences.
Judge Bruno Fiannaca found the company size argument was allowed but dismissed, the deterrence argument was allowed and successful, and, because of that, the final argument was deemed superfluous.
The findings note that earlier evidence from the prosecution noted that taking measures such as scheduling rest-breaks, booking accommodation and providing a timetable for its drivers “was simply a matter of organisation” for the company.
And while it had been argued that “there was not a lot the respondent could do about the information put in the timesheets by the individual drivers”, it is a principle of the law of Occupational Safety and Health that a responsible person cannot delegate their duty, and certainly not to an employee to whom they owe the duty, and that the company “had demonstrated it had the capacity to check work diaries for compliance and accuracy, as evidenced by the statement it provided to the court about how it checked work diaries”.
In mitigation, the company’s lawyer submitted that the company had implemented mandatory stops at Ceduna and Norseman, employed moe drivers to allow two-up operations,
implemented GPS tracking on some trucks, and had an ‘impeccable safety record’, having been in business for almost 40 years without a ‘fatigue related accident of any kind’.
However, it was acknowledged that one could not say whether that was the result of ‘good luck or good management’, but noted that the respondent had had a fatigue management policy in place even before the regulations had come into force.
“The significant mitigating factors are that the respondent pleaded guilty, demonstrated remorse and has taken significant remedial steps to prevent non-compliance with the Regulations in the future,” the findings read.
“Although somewhat belatedly, it has shown an appreciation of the seriousness of noncompliance and the risk it posed to the safety of its drivers and the public generally.
“While there is no evidence of the financial cost of the remedial measures, I accept it has been significant and demonstrates the respondent’s commitment to future compliance.
“However, I do not regard the financial burden of such measures as a mitigating factor, given that it is incumbent on the respondent to take all necessary measures to comply with the Regulations if it is going to be in the business of operating heavy haulage commercial vehicles for profit.”
Against that, the judge found three main aggravating factors:
- the offending involved non-compliance that was widespread, involving a large number of drivers
- the consistent pattern of the drivers’ records was that they understated the number of hours they were driving over any particular period, so that the increased risk of fatigue was being concealed
- the offending occurred against a background of prohibition and improvement notices over a period of many years and soon after convictions for similar offending.
“The offending demonstrated a failure by the respondent, for a significant period of time, to acknowledge the seriousness of its noncompliance with the Regulations and the risks that were being created as a result of that noncompliance,” the judge states.
He adds that: “In my opinion, the changes the respondent has implemented since January 2015 demonstrate that the breaches should never have been tolerated and were always preventable.
“The magistrate accepted that the drivers could not always be under management’s gaze, but that was always known, and it made all the more urgent the need for changes to be made when non-compliance by drivers came to the respondent’s attention.”