Increasing working hours and the risk of prosecution for employers

Many of us work longer hours these days. Working longer hours has its risks not only for the employee but also the employer.

In a recent decision of the NSW Industrial Relations Commission a director of a truck driving company was found guilty of breaching the Occupational Health and Safety Act when a truck driver employed by his company died as a consequence of driving when fatigued: Inspector Campbell v James Gordon Hitchcock [2004] NSWIRComm 87 (21 October 2004).

In addition to potential liability under the OH&S legislation, requiring staff to work long hours has other risks including the risk of prosecution for breach of an award or enterprise agreement.

Then there are the risks associated with fatigued employees; reduced productivity and quality of work as well as increased labour turnover.

In this bulletin we examine some of the risks for employers in allowing or requiring staff to regularly work long hours.

Are we working longer hours?

A survey by the Australian Bureau of Statistics showed that in November 2003, 37% of employees worked overtime on a regular basis. Of those who worked regular overtime, 33% were not paid for that extra work.

That survey followed a Saulwick Survey in 2002 which found 47% of full time employees regularly worked unpaid overtime each week. That survey found white collar workers worked unpaid overtime at an average of 7.4 hours per week.

Against this background, in 2002 the Australian Industrial Relations Commission granted the ACTU's application seeking a right for employees to refuse to work overtime when it would result in unreasonable working hours being performed by employees.

The occupational health and safety risks

The case of Inspector Campbell v James Gordon Hitchcock paints a sobering picture of the risk for long distance truck drivers driving when fatigued. It highlights the risk incurred by a haulage company which paid inadequate heed to the danger to its employed drivers, or other persons on the road, arising from driver fatigue.

Under the OH&S Act, directors are deemed to have committed the same offence as their corporation. In this case WorkCover alleged the director was liable because his company failed to:

• ensure the long haul drivers in its employ took sufficient rest stops when they were driving to counter fatigue;

• ensure that driving rosters were prepared which properly or adequately took into account the effect of fatigue and sleep depravation;

• ensure that driving hours of employees were properly recorded and audited to minimise the risk of employees driving when fatigued;

• adequately warn employees of the hazards of fatigue involved in long haul truck driving;

• adequately warn employees of the hazards of taking drugs to counter fatigue; and

• provide such information, instruction, training and supervision of its employees as may be necessary to ensure their health and safety.

In its judgement, the Industrial Relations Commission criticised the company for only using log books to monitor driving hours. The Commission also criticised the company for the excessive hours worked by its drivers: drivers loaded in the afternoons, drove at night to arrive "early in the morning", unloaded in the morning, drove to the next loading destination and then repeated the pattern until they arrived home on Saturday morning and took a 24 hour break before washing the truck and starting again on Sunday afternoon.

As a result of the breaches of the OH&S Act by his company, the director was found guilty of having breached the Act.

The NSW Commission will now decide the penalty to impose as result of the director's breach of the Act.

The employment risk

Requiring workers to regularly perform long hours is not only a safety risk, but may result in breaches of awards or enterprise agreements. The surveys discussed above identify a significant portion of overtime hours worked are unpaid.

Where a worker is covered by an award there will in most cases be an obligation to pay overtime. The failure to pay overtime will be a breach of the award and make an employer liable to a penalty of up to $10,000.

Agreeing to pay a worker higher than the award salary in exchange for extra hours of work will not avoid the obligation to pay overtime at rates prescribed by the award. The case of Russell v Adelaide Business Communications Pty Ltd [2001] SAIRC 22 illustrates the danger for employers. In that case, the award covered employee agreed to a higher hourly rate in exchange for working overtime when required. However, the employee regularly worked 89 to 100 hours a week at the agreed flat rate. The South Australian Commission held that the employer could not contract out of its award obligations. Despite the agreement between the employer and employee, the employer was ordered to pay $110,000 in unpaid overtime.

Where employees are covered by an award or enterprise agreement, the employer should also consider any award provisions which require a minimum break between shifts. Those minimum breaks should be observed at all times.

How to avoid prosecution

Some tips employers might like to consider to protect themselves against the risk of prosecution include:

• monitor hours worked by employees, with particular care being taken with those employees operating equipment or machinery;

• undertake risk assessments of the hazards associated with fatigue in the workplace and introduce effective measures to eliminate those hazards.

• promote a balanced work and family life in the organisation;

• be familiar with your award and enterprise agreement obligations and ensure rostering and pay complies with those obligations. If not, consider making an Australian Workplace Agreement; and

• educate and train managers and staff about the effects of fatigue on work and then implement policies and procedures to manage the risks associated with fatigue.

Conclusion

The case of Inspector Campbell v James Gordon Hitchcock should ring alarm bells for employers in industries where it is common for employees to work long hours over a number of days. Often in those industries overtime is expected because of the nature of work performed by the employee.

The message from this decision is that employers need to consider the risks associated with worker fatigue, and introduce steps to minimise those risks.