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Little common ground between TWU NSW and Fairfield

Clarity hard to come by in case of fined agitator driver and safety call to council


The Transport Workers Union of New South Wales (TWU NSW) and the Fairfield City Council (FCC) are at loggerheads over issues surrounding a concrete agitator driver who was fined for unsafe parking.

With efforts to contact a representative of the driver’s contractor, Holcim Australia Readymix (Holcim), proving futile, that avenue for clarification is presently closed.  

What is plain is that FCC is unready to accept it is exposed in any way to TWU NSW charges that it had a responsibility to provide a traffic management plan that would have avoided the outcome where a council ranger fined the driver.  

“The infringement notice was issued due to the positioning of the truck on the road, which posed a safety risk for the public and traffic,” an FCC spokesperson says.

“The contractor was pouring concrete for an independent worksite, not a council worksite.

“Council takes work place and traffic safety seriously.”

Asked for details of the situation, the spokesperson would only indicate that, as far as FCC is concerned, Holcim   was not fulfilling a contract with FCC and it had control of the site, not the council. Therefore, it was up to Holcim to ensure any traffic management issues were organised.  

The spokesperson is yet to respond to the reported comments of the magistrate who withdrew the fine.

Read how the TWU NSW complaint was raised, here

The union is not to be swayed from its position, however.

“Council must also ensure that when it comes to safety for the transport industry, they do not walk away from the problem by placing the blame into the hands of a contractor,” a spokesperson says.

“Fairfield City Council, as the TWU understands it, was the ‘economic employer’ in this case.

“The TWU understands that according to our driver the pour was for a Fairfield City Council job.

“We understand the worksite was theirs, for a project that was theirs (roadworks) whether or not they engaged a contractor. 

“On behalf of members we would expect that council could explain to us what requirements were put in place by them for the said contractor to provide traffic management.

“We would ask that council explain to us how they were enforcing any such traffic management plan, which would mean the site was controlled and as a result, truck drivers were given safe and well thought out directions as to where to safely place heavy vehicles.” 

The union says it does not accept that proper enforcement is defined by sending an officer to photograph and subsequently penalise the truck driver. 

“The TWU appreciates that Council takes work place and traffic safety seriously, however the TWU is concerned that the Council may have breached Work Health and Safety Legislation,” it adds. 

“The above are questions that the state secretary, Richard Olsen, would ask of any council that has trucks visiting worksites.

“Our members must be safe at work, safety is a shared responsibility.” 

In terms of the court hearing, is says the lawyer engaged for the driver wrote to it saying: “I also referred His Honour to the incredulous situation of the TWU member being issued the infringement by Fairfield City Council, given that Holcim had been engaged by the council to complete the roadworks.

“After reading the mitigating material, His Honour indicated that he had familiarised himself with the file before Court that morning.

“He too agreed that it was an unusual situation that the council was both the prosecutor and also the client for the works completed by the defendant company. Referring to s.10(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”), His Honour opined with words to the effect: ‘I cannot think of a more appropriate situation than this matter where s.10(3) of the Sentencing Act would be invoked in relation to the trivial nature of an offence.’ “

Responding to the union invoking the National Heavy Vehicle Regulator (NHVR), a spokesperson tells ATN it has very little exposure to the case at hand.

A spokesperson would only say: “The NHVR takes issues of safety and compliance very seriously, right across the supply chain.

“Amended Chain of Responsibility laws introduced in late 2018 make it clear that every party in the chain of responsibility is responsible for the safety of other road users.

“We have recently commenced our first prosecution under these amended laws, laying charges against a company director for failing to exercise due diligence to ensure the company complied with its safety duty.

“If any driver ever feels that they have been asked to do something by their employer or someone else in the supply chain that creates a safety risk they can make a free, confidential report to the Heavy Vehicle Confidential Reporting Line on 1800 931 785.”


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