Courier Driver Fatal Accident

photo: www.stuff.co.nz

The death of a courier driver in Taranaki at first glance seems to draw together a number of threads that have otherwise been in the news recently – contractors vs employees (Hobbit actors dispute), employment health and safety (Pike River Mine), and road safety (everywhere).

Courier drivers are contractors, even though there are many conditions of their work which would classify them employees under the standard tests used by the courts.  This was a decision reached by the Court of Appeal in Cunningham v TNT Express Worldwide (New Zealand) Ltd [1993].  A consequence of the decision is that laws such as the Employment Relations Act don't apply to them, and the company they contract to can avoid many direct costs of employment such as ACC levy's, holiday and sick pay, and Kiwisaver.  It's a very competitive business and there doesn't seem to be any evidence that companies are making excessive profits from this model, it just drives the cost we pay for this service down (although there is anecdotal evidence that some courier companies have retained profit margins but reduced charges by squeezing the earnings of drivers).

One of the conditions which doesn't apply is the minimum wage.  It is alleged that drivers are driving for 13 hour days to “earn” $80 ($6.15 per hour – less than half the minimum wage).  As contractors, courier drivers are responsible for their own expenses – such as vehicle running costs – so the $80 figure would seem to be a simplification of the actual pay situation; perhaps it's the average net profit per day.  Nevertheless, let’s accept that it is a ballpark figure for earnings.

The cause and effect relationship which has been implied is that driver fatigue was a major part of the accident, that it was caused by working long hours - necessary to earn a minimal living.  While driver fatigue is one of the major causes of road accidents (594 accidents in the 2009 statistics), the argument doesn't necessarily stack up in this instance. 

The original accident pyramid as developed by W.H.Heinrich in 1931 showing ratios found in first workplace study

You can look at accidents as a pyramid.  At the very bottom are a large number of  “close miss” incidents, for every n of these is one injury or damage causing accident, for every n of these is one major accident, and for every n of major accidents is a fatality.  A lot of road safety campaigns – speed, drink driving, fatigue – is based on reducing the size of the base of the pyramid to eliminate the likelihood of serious injuries and fatalities at the top.  It was implied that a 12 hour day without breaks is “normal” for the industry and for this driver i.e. at the time of the accident he wasn't performing outside his normal working parameters.  If these long working hours were a factor in the accident, and they are the normal conditions, we would therefore expect to see courier drivers disproportionately represented across all levels of the pyramid as an incident/km driven statistic.  This doesn't seem to be the case in published statistics.  The 2009 statistics only lists 1 of the 594 fatigue factor accidents as being caused by exceeding driving hours.

One piece of legislation which can't be avoided by using contractors is the Health and Safety in Employment Act, which covers all people on a worksite, not just employees (and “worksite” is defined pretty broadly).  Fatigue is a hazard, so there should be controls in place to “eliminate, isolate or minimize” it.  The first of these is the legislative control on the amount of time spent driving without a break (30 minutes after five hours).  For large vehicles (over 6 tonne) log books are required to be kept to ensure this happens.  This isn't the case for smaller vehicles, however the legislation still needs to be complied with.  As the driver's day is largely controlled by their despatcher it will be hard to argue that their contracting company wasn't aware that drivers weren't complying i.e. as the Principal they have a responsibility.  The Act also requires people not to put themselves or others in danger by their actions, so there is an onus also on the driver to comply to minimize this hazard; therefore the economic argument that drivers ignore the law because they wouldn't earn enough otherwise is not a defense.

Until the coroner reaches a finding we won't know the full reasons for this tragedy.  It does seem disrespectful for someone to stand up at this point and try to give a dogmatic narrative for the cause of it, ignoring the driver’s responsibility to comply with the law and the lack of statistical evidence for an industry wide problem.  If we do accept their reasoning though, it leads somewhere more uncomfortable.  Courier service fees are partly driven by cost, but also driven by value – the amount people are prepared to pay for the service before they use it.  If the accident was caused by driver fatigue; caused by working long hours to earn a living; and the rate they earn (less than the minimum wage) is possible because of the contractor rather than employee model utilised in the industry; and no one is making unreasonable profits; then the end result of the value the consumers place on this service - if we accept this argument – is a life.