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Health and safety risks when workers travel – when is a PCBU responsible?

March 16, 2021

Grant Nicholson Partner
Olivia Welsh Senior Associate
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Having to travel to and from work is a reality for just about every worker in New Zealand. What then is the extent of an employer (or PCBU’s) obligations to ensure the health and safety of workers when travelling to, from, or for work?

 

The general rule on responsibilities for worker travel

Under the Health and Safety at Work Act 2015 (HSWA), the starting position is that PCBUs generally have no health and safety duties in relation to a worker’s daily commute to and from work. This is because it is typically an ordinary journey, made by millions of people every day, from one’s place of abode to their place of employment. It is not considered “work” for which a PCBU is responsible. 

 

However, the New Zealand courts have demonstrated that there will be certain exceptional cases where a PCBU’s obligations to ensure the health and safety of workers does extend to the worker’s journey to or from work. Often this will depend on the distinction between travelling “to” work and travelling “for” work. 

 

Travelling for work

In Sarginson v Civil Aviation Authority, one person was killed and another seriously injured when a helicopter crashed on route to a high country station. The pilot, Mr Sarginson, and his passenger, were partners in an earthmoving business that was engaged to undertake work at Mount Algidus Station. At the time of the crash the pair were travelling to the station by helicopter as this was the most efficient means for them to access the property.

 

In his appeal to the High Court against conviction for breaches of the HSWA, Mr Sarginson argued that the District Court was wrong to convict him as any HSWA duties did not apply to the helicopter journey, as neither he nor his partner were at work at the time.

 

The High Court upheld the ruling of the District Court that Mr Sarginson and his partner were travelling for work at the time of the accident and that the obligations under the HSWA applied. The Court saw this situation as differing from a worker’s typical commute to and from work, for which no HSWA duties arise.

 

The High Court noted that once a link between work and travel has been established, the risks arising from the travel will arise from the work as well. This is the case even when those risks are generic in regards to the work undertaken. Justice Mander stated:

 

“It would be inconsistent with the objectives of the [HSWA] to hold that health and safety risks in a work situation that could be eliminated or minimised by various duty holders, are not risks arising from work, because they arise from activities that are not exclusive to the PCBU’s work or business, or are not confined specifically to a work activity.”

 

The extent of the duty will still be regulated by what is reasonably practicable. To illustrate this, Justice Mander used the examples of a co-worker using their private vehicle to drive the victim and a licenced passenger carrier. The first example requires the PCBU to check the licence of the co-worker and warrant of fitness on the vehicle in order to carry out their duty. By contrast, if the employer books a flight for an employee with a licenced carrier, in the second example they have implicitly performed their duties. Overall, it is a context specific analysis. 

 

Work impacting fitness to travel

Michael Vining Contracting Limited (MVCL) was convicted for failing to ensure a worker was kept safe when driving a tractor home after a 16.75 hour shift. The worker had worked a total of 150+ hours in the fortnight leading up to the incident. Due to the detrimental effects of fatigue the victim was killed after falling asleep at the wheel of the tractor and crashing. 

 

The Court found that it was reasonably practicable for MVCL to have:

  • implemented an effective fatigue management system
  • monitored and assessed specific fatigue-related hazards
  • developed guidelines on maximum work hours and minimum breaks
  • had a system to report concerns surrounding fatigue
  • ensured regular breaks were taken
  • known that when workloads were to increase it would need a system of fatigue control
  • educated workers in understanding and managing fatigue.

 

It was accepted that the victim was travelling home from work, a journey which would not usually impose health and safety obligations on the employing PCBU. However, in this case, the PCBU’s failure to manage the risk of fatigue while the victim was at work in the business meant that the journey home was one for which the PCBU had responsibilities. Effectively, the Court held the PCBU’s failure to manage fatigue risks detrimentally impacted the victim’s ability to safely work and to then drive home.

 

What’s happening in Australia?

The Australian courts are taking a similar approach to New Zealand and finding limited carve outs to the general rule that a PCBU will not be responsible for a workers journey to and from work.

 

In a recent case, a State Department of Planning, Industry and Environment procurement officer was refused compensation for an incapacitating lower back injury. The onset of the injury came about during an eight hour drive from his home to an office he worked in on Monday and Tuesday every week. It was said to be no different from a normal commute to work. 

 

On appeal, the arbitrator was found to have been wrong in seeing the trip as analogous to any other journey to work. In answering the question whether the worker began his employment from the moment he left his home, it was held the destination was one stop in his overall route for the entire week. Therefore, the injury was sustained in the course of his employment. We agree, and expect a similar result would occur here if an accident occurred during the journey.

 

If you have any questions, or would like advice about how your organisation should fulfil its duties to workers travelling for work, please get in touch with our team of health and safety experts. 

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