17 May 2022
The National Heavy Vehicle Regulator (NHVR) has just released a new regulatory guidance note on managing the risks associated with alcohol and other drug use impairment in the workplace. This follows the NHVR’s first regulatory advice notices on managing the risk of transporting freight in shipping containers and managing the risks of light to medium heavy vehicles.
The main safety risk is the hazard posed by workers that are impaired through drug (whether that be illicit or prescription/over-the-counter) or alcohol use (including alcohol consumption below drink driving limits) to themselves, their colleagues, road users and the general public. Adversely impaired workers are more likely to fail to perform their duties in a safe and compliant manner due to their decision-making, physical skills or perception and reflexes being impaired.
Fitness for duty is a fundamental aspect of a worker’s ability to perform their duties properly and safely. Therefore, managing drug or alcohol use and detecting any adverse impacts of such use is essential to managing fitness for duty.
The NHVR argues that fitness for duty also forms part of a business’ primary duty under the Heavy Vehicle National Law (HVNL), being to ensure so far as reasonably practicable the safety of its transport activities. This aspect of the HVNL hasn’t been tested in court so far. Existing decisions focus more on a lack or deficiency in safety management practices or a failure in the implementation of such practices, rather than focusing on a lack of fitness to perform those tasks safely. Despite this, we can expect the NHVR to push this notion in court in an appropriate case. Given that the concept is firmly established in general work and health and safety law, it is reasonable to expect that it may be recognised under the HVNL.
Parties in the Chain of Responsibility (CoR) have a duty to manage these risks. As such, the executives of parties in the CoR also have an independent duty to ensure that these risks are being managed effectively. This includes ensuring that sufficient financial, human and other resources are made available within the business to address these risks and that they are being implemented and monitored effectively.
The regulatory advice recommends the implementation of a drug and alcohol management plan that may include the following:
Author: Nathan Cecil
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