Today’s correspondent asks the following questions:

Are Ambulances “Commercial Vehicles” in WA?

They do carry passengers/patients on demand and for reward (Worksafe WA). Though St John is Not For Profit, some businesses are for profit such as Patient Transfer Vehicles.

The GVM of a Mark V1 Mercedes Benz Sprinter is approximately 3.9t.

If they are commercial vehicles, does it go to say that in WA ambulance drivers/ Paramedics are commercial drivers?

Where would that leave Volunteer Ambulance Officers who work for different business and then go and volunteer after a days work?

Or do both have exemptions?

Western Australia’s Department of Mines, Industry Regulation and Safety publishes a fact sheet on ‘Driving Commercial Vehicles’. That sheet says that ‘commercial vehicle’ means a:

* passenger transport vehicle, which means a vehicle used or intended to be used in providing a passenger transport service (carry passengers for hire or reward, including on-demand, tourism and regular passenger transport services)

* school bus, (equipped to carry more than 8 adults, principally transport children)

* mobile plant with Gross Vehicle Mass (GVM) over 4.5 tonnes (self-propelled or integrated) or

* any other motor vehicle with a GVM over 4.5 tonnes used or intended to be used for the carriage of goods for hire or reward.

Clearly dot points 2, 3 and 4 are not relevant. What about dot point 1? This is an example of where you do not rely on what the regulator says is the law, you look to the law. In making this publication and the Code of Practice: Fatigue Management for Commercial Vehicle Drivers 2019 (State of Western Australia (Department of Mines, Industry Regulation and Safety) the regulator is trying to explain the law – to write the law in plain English and to set out how they interpret and will apply the law. But if you want to know the law, go to the Act or Regulation. In this case the relevant law is found in the Occupational Safety and Health Regulations 1996 (WA).

Part 3 of the Regulations deals with specific workplace requirements.  Division 10 of Part 3 deals with driving commercial vehicles. The definition in r 3.130 says:

commercial vehicle means —

(a)        a passenger transport vehicle as defined in the Transport (Road Passenger Services) Act 2018 section 4(1); or

(b)       a school bus within the meaning of the Road Traffic (Vehicles) Regulations 2014 regulation 226; or

(c)        any mobile plant or motor vehicle with a GVM over 4.5 tonnes that is designed to carry, or is carrying, a large integrated item of equipment; or

(d)       any other motor vehicle with a GVM over 4.5 tonnes used or intended to be used for the carriage of goods for hire or reward;

We can see that paragraphs (b), (c) and (d) are reflected in dot points 2, 3 and 4 of the definition in the fact sheet. Paragraph (a) is reflected in dot point 1 but is more specific. In the fact sheet the Department is trying to explain what is a passenger transport vehicle and they do that by reference to the type of use (“carry passengers for hire or reward, including on-demand, tourism and regular passenger transport services”) but not by specific reference to the Transport (Road Passenger Services) Act 2018 but it is that specific reference that is important.

The Transport (Road Passenger Services) Act 2018 says that a passenger transport vehicle is a ‘a vehicle used or intended to be used in providing a passenger transport service’. A ‘passenger transport service’ is

(a)        an on-demand passenger transport service; or

(b)       a regular passenger transport service; or

(c)        a tourism passenger transport service; or

(d)       a prescribed passenger transport service;

An ambulance service is clearly not (b) nor (c). Ambulance services are not prescribed (ie listed in the regulations) as a ‘prescribed passenger transport service’ (Transport (Road Passenger Services) Regulations 2020 (WA) r 8). An ambulance service is also not an ‘on demand’ passenger transport service that is a service where, inter alia ‘in which the passenger or hirer determines or substantially determines the locations for the beginning and end of the journey and the time of travel’. That is certainly true for emergency ambulance services, less clear for non-emergency patient transport services.

My first conclusion is therefore that ambulances are not “Commercial Vehicles” in WA. If that is the case, I do not need to answer any of the other questions.

But if I’m wrong it does not mean that the drivers are commercial drivers. A commercial driver is

… a person who drives a commercial vehicle in the course of work and whose work time —

(a)        is more than 60 hours per week; or

(b)       for more than once per week — is more than 10 hours in any 24 hour period; or

(c)        for more than once per week — includes the period from midnight to 5 a.m.;

The work time is not just the rostered time, but the actual time driving and associate duties (r 3.130 and the the Code of Practice: Fatigue Management for Commercial Vehicle Drivers 2019).

This means that even if employed paramedics did fall within the definition, volunteers will not as they are not at ‘work’ and Western Australia has not yet adopted the model Work Health and Safety Act, it stills has an Occupational Safety and Health Act that focuses on employees and employers.

Of course that does not mean that the employer of a paramedic is not required to have a fatigue management policy. Such a policy would still be necessary to meet their general  obligations under the Occupational Safety and Health Act

Conclusion

In my view an ambulance is not a commercial vehicle in WA.