NSW Must I Sign Travel Management Plan under Employment Law?

[dan]

Hello everyone and thankyou in advance. I currently work in the mining industry. Recently, we have had a change in roster from 4 days on 4 days off, to 7 on and 7 off. I live 300 kilometres from the mine and during my working week I stay in a flat that I rent out of my own pocket. The mine doesn't supply any entitlements for travelling and living away from home, and I believe classifies me as a residential worker not a "drive in drive out worker".

This week I was given a "travel management plan" and was told I Have too sign it before going home, this plan has a list of "recommendations" that I have to agree I will follow, including having a minimum period of 4 hours sleep before travelling more then 100ks and not to drive if I have worked more then 14 hours. And also tick a box to say I'm compliant with the site fatigue management plan.

The fatigue management plan for our new roster is currently only in a draft state and not approved for publishing and as such I have not been able to have a copy of this but I'm supposed to be compliant with it.

I have also been told that if I don't sign it my "position with the company will be reviewed " and basically kept giving the impression if it's not signed in will be fired, do I have to agree to this document? And it's "recommendations"? Can I be dismissed for not doing so and can I have action taken against me for not signing it? Or if I was to sign it and still travel home, can they fire me or take disciplinary action under employment law?

 

[Tim W]

You're a miner?
Contact your union...?

 

[dan]

I'm not apart of a union and the mine isn't unionised, I believe only a small amount of people are in union.

 

[Tracy B]

Hi Dan,

I believe your employer is trying to implement a safer work environment as well as take reasonable measures to prevent accidents from occurring under the employer's duty. The reason the sleeping hours and fatigue management methods are mandated here is because if the mine's employees get into an accident and harm themselves or other people (or property) while "under employment" then the mine owner may also liable, especially if there is a systematic problem in its working environment that encourages or pressures employees to act unsafely. To minimise this liability, methods must be taken to minimise risk and checks and balances must be put in place (including getting employees to commit to a travel management plan).

Is there any particular reason you do not wish to comply with the travel management plan?

Is the travel management plan for all employees who travel or just those that are non-residential workers? If the latter, what is the definition of "residential worker" and how certain are you that you satisfy this classification?

 

[Rod]

Hi Tracy,

I agree with the probable intent by employers, however does that give them the right to insists on certain behaviours while an employee is not at work and there is no employer bashing in social media?

Employers do not 'own' an employee and the time outside of work is the employees own time. To fire an employee for refusing to sign the travel plan would seem likely to break unfair dismissal laws. Though I'm not an expert in this area.

A simpler way if the employer is really concerned, is to have the employee sign a waiver saying the employee is solely responsible for his own travel arrangements. Issues around the roster should be dealt with on their own merits and would include the employer providing temp accommodation in remote areas.

 

[Tracy B]

Hi Rod & Dan,

My understanding was that the Travel Management Plan only covered travel to/from work and between work hours.

However, if the employer was trying to regulate the way Dan lived in his personal time, then this may be problematic. Dan, I suggest you speak with the Fair Work Ombudsman about some preliminary advice and possible assistance with how to respond to/negotiate with your employer. There could be an unfair dismissal action if your employer terminates your employment on the ground you refuse to sign this plan.

Rod, a waiver might work between the employer and employee. However, it might not work against third parties who wish to claim against the employer for something their employee did during "work hours" under the general law principle of vicarious liability. I do not believe an employer can waive their duties under vicarious liability with a contractual waiver between employer/employee, unless this waiver is also entered into (tripartite) with said third party, as it will affect third-party rights without third-party input. Practically, third-party waivers wouldn't work for every (most) situation.

 

[Rod]

..... for something their employee did during "work hours" under ......

I can see your point if you are being paid while traveling to work. If you are not being paid while traveling and travel is to get to and from work, would vicarious liability still be applicable?

 

[Tracy B]

Hi Rod,

This is a good question and requires some case reading. I do not know the exact answer at the top of my head. However, employers will be liable for the negligence (and yes, driving while fatigued would constitute negligence; and possibly dangerous/careless driving) of its employee if (i) there is an employment contract between the parties; and (ii) the negligent act occurred "in the course of employment".

The main issue is what is the scope of "course of employment"? The courts have in the past adopted the "Salmond Test" which includes acts authorised by the employer or sufficiently close to acts authorised by the employer.

One leading case is New South Wales v Lepore in which Gleeson CJ said in paragraph 40 on vicarious liability: "Not everything that an employee does at work, or during working hours, is sufficiently connected with the duties and responsibilities of the employee to be regarded as within the scope of the employment. And the fact that wrongdoing occurs away from the workplace, or outside normal working hours, is not conclusive against liability." So work hours is not an essential element for vicarious liability. The courts have looked at "control" and "connection" between the negligent act and the authorised act when determining existence of vicarious liability.

It appears to me that driving to and from work is sufficiently connected to work responsibilities (i.e if you don't attend work at the work place, you will not be able to perform your obligations under the employment contract) and there is sufficient control by the employer (i.e. if you don't do this, you will likely be fired) for there to be vicarious liability here. As such, I understand why the employer would be asking employees to sign the travel management plan to prevent employees acting negligently in their travels to/from work and between work hours.