Duties of rail safety workers

Fact Sheet 2 – January 2015

Further information: Call: 08 8406 1500 Email: contact@onrsr.com.au Visit: www.onrsr.com.au

Rail safety workers have prescribed safety duties under the Rail Safety National Law (RSNL).

Who are rail safety workers?

A rail safety worker (RSW) is any individual (whether employee or contractor) who has carried out, is carrying out, or is about to carry out, rail safety work (s.4).

‘Rail safety work’ is defined in section 8 of the RSNL and is further clarified in the ONRSR guideline Identifying rail safety work under the RSNL.

Duties of rail safety workers

Rail safety is a shared responsibility (s.50) and the RSNL places specific rail safety duties on certain persons to minimise risks to safety associated with railway operations.

These duties cannot be transferred and more than one person can have the same duty concurrently (s.51).

S.56 prescribes the particular duties to be fulfilled by RSWs, relative to the capacity they may have to control, eliminate, or mitigate risks.

Reasonable care (s.56(1))

When carrying out rail safety work, RSWs must take reasonable care:

˃ for their own safety; and

˃ that their acts or omissions do not adversely affect the safety of others.

What constitutes ‘reasonable care’, is determined by the extent of knowledge the RSW might have had about relevant circumstances (s.56(4)).

Reasonable instruction (s.56(1)(c))

RSWs must comply, so far as they are reasonably able, with any reasonable instruction by the rail transport operator (RTO) to allow them to comply with the RSNL.

Whether an instruction is ‘reasonable’ will depend on several factors, including whether it is lawful and clear, and whether it is consistent with safety requirements.

Intentional, wilful, or reckless behaviour (s.56(2))

When carrying out rail safety work, RSWs must not:

˃ intentionally or recklessly interfere with or misuse anything provided by the rail transport operator in the interests of safety or compliance with the RSNL; or

˃ wilfully or recklessly place the safety of another person on or in the immediate vicinity of rail infrastructure at risk.

Penalties for failing to comply with safety duties (ss.58-60)

Any person may be penalised for failing to comply with their safety duties.

The most serious category of offences relates to reckless conduct involving a risk of death or serious injury, carrying potential penalties of up to $300,000 and/or up to 5 years imprisonment.

Duties of rail transport operators

RTOs also have duties under the RSNL (s.52), including a fundamental obligation to provide safe systems of work, infrastructure, and equipment, while ensuring that rail safety workers are:

˃ of sufficient good health and fitness to perform their duties safely;

˃ competent to undertake their tasks safely;

˃ not impaired by drugs, alcohol or fatigue whilst on duty; and

˃ provided with relevant information, instruction, training and supervision to be able to undertake their tasks safely.

Safety management systems

RTOs must develop and implement a safety management system (SMS) for their operations in consultation with relevant RSWs, and other affected persons, in order to manage the risks associated with rail safety work (s.99).

The SMS must include specific components to cover RSWs, including:

˃ a health and fitness management program (s.114);

˃ a drug and alcohol management program (s.115); and

˃ a fatigue risk management program (s.116).

RSWs must comply with this SMS as part of their duty to follow reasonable instructions by the rail transport operator.

Rail safety worker identification (s.118)

RTOs must ensure that RSWs have identification that enables a rail safety officer to check the worker’s training and competency.

RSWs must produce this identification when requested by a rail safety officer or incur a penalty of up to $2,500.

Drug and alcohol use

The use of drugs and/or alcohol by RSWs before or during work is a serious matter under the RSNL.

A RSW must not undertake rail safety work (s.128):

˃ with any alcohol in their blood;

˃ with a prescribed drug present in their oral fluid or blood; or

˃ under the influence of any drug that affects their ability to effectively perform their duties. This may include over-the-counter or prescription medications that may result in side effects, such as drowsiness.

Prescribed drugs include:

˃ delta-9-tetrahydrocannabinol (cannabis);

˃ Methylamphetamine (methamphetamine/’speed’); and

˃ 3,4-Methylenedioxymethylamphetamine (MDMA/’ecstasy’).

RSWs must notify their rail transport operator, or a nominated person, if their ability to undertake rail safety work, or the ability of another worker, may be impaired by alcohol or any other drug.

Drug and alcohol testing (ss.123-127)

RSWs may be tested for drugs and/or alcohol by either a rail transport operator or an ‘authorised person’ (a person authorised by the Regulator or a police officer).

This activity is carried out under the RTO’s drug and alcohol management program, part of the safety management system (s.115, Regulation 28).

The Regulator may also undertake testing at any time (ss.123-127).

It is an offence for a RSW not to comply immediately with a direction given by an authorised person for the purpose of conducting a drug or alcohol test.

More information

Rail safety workers are encouraged to discuss any questions or concerns with their rail transport operator or contact the Office of the National Rail Safety Regulator (ONRSR).

A copy of the RSNL and National Regulations, and other guidance is available from the ONRSR website at www.onrsr.com.au