Employers may be inclined to think that when their employees are on the road, the law of road use – not health and safety legislation – exclusively governs the safety of drivers and other road users.

However, the legal case of Downer EDI v The Queen (2017), which followed on from DPP v Downer ED (2015), has dispelled that idea.

Under health and safety law, any place where work is undertaken is a workplace, so health and safety law applies.

In the Downer cases, a traffic controller died when a street sweeper reversed over him.

Both VicRoads and Downer argued in the first instance that the death was caught exclusively by the Road Safety Act 1986, so health and safety legislation did not apply.

The matter was referred to the Victorian Appeal Court of the Supreme Court (ACSC). The ACSC rejected the argument, making it clear there would need to be express provisions within any legislation to exclude health and safety law from being applicable, which the Road Safety Act 1986 did not do.

Downer subsequently argued that the allegations against it – that it was required to have provided the driver of the street sweeper with training and instruction – was not a proper claim.

The ACSC held that the issue of whether the failure to provide training and instruction caused the death was not relevant for the breach of the primary health and safety duty to provide a safe workplace.

All the Crown had to prove was that training and instruction were reasonably practicable to prove a breach of the primary duty. In this case it was reasonably practicable.

3 key lessons for employers

Employers that have people working away from their principal site can learn the following:

1. Wherever someone works is a workplace and must be covered by the employer’s safety system.

2. A safety system involves a strategic safety plan that:

• identifies hazards with the highest risk, allocates resources and makes people accountable for the control of those risks;
• is documented;
• creates training with a frequency consistent with identified risk and ensures competence;
• has supervisors and managers who are aware of the risks and familiar with documented systems and safety law to supervise and enforce the system and law;
• is monitored to ensure systems are being followed and that there is reporting against the system through the governance structure of the organisation; and
• ensures training and instruction is focused on the risks experienced by the business’s workers.

3. It is a breach of your primary health and safety duty not to have a safety system in place, even if no one is injured.

In the event of injury or death, the regulator will examine that failure and prosecute. The court will determine whether that failure was causative or partly causative, and such a finding of causation will increase the penalty.

Employers must always take reasonable practicable steps

You must consider where your workers will work, have a method of assessing the hazards that exist there, determine the risks of each hazard and institute controls to provide a safe place of work.

That is what health and safety law calls ‘reasonable practicability’.

Workplaces are always changing and with the changes come different hazards. As a result, you must train your managers to undertake risk assessments of any new site and ensure that safety systems meet the risks created by the hazards.