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How ya gonna call? Drivers face cellphone ban Employers liable

01 Jul 2009

Is what your employee does in the privacy of their own car really your business? If they’re driving while holding a mobile phone during work hours, it soon will be. The government is about to ban the use of handheld devices while driving, which means an organisation may be liable for its employees’ phone conduct in the car. Paul Clearwater investigates.The pressure to stay connected while working – no matter where you are – often means that business people make or take a phone call while driving.You or your staff may soon be banned from using a mobile device in a vehicle under a proposed law change. Mobile users will be able to use a ‘hands-free’ device or Bluetooth earpiece, however. Two-way radios, often used in the transport industry, will also be exempt from the ban.This law change will have serious implications for employers and employees alike. A car is deemed a workplace, which means that health and safety issues for the country’s workforce will also change with the proposed law. The extra costs involved in buying your entire fleet of mobile workers a hands-free device could also be prohibitive, considering that many are looking at reducing costs.New Zealand has one of the highest car ownership rates in the world, with around 560 vehicles per 100 people. Many of those who own a car, or are supplied a company car, will use their vehicles for work. Coupled with the fact that New Zealand, like many countries, has a mobile penetration rate of over 100% and that our workforce is largely mobile, New Zealand’s current position is a recipe for disaster in terms of accidents.According to the New Zealand Police however, crashes caused by the diversion of a mobile device are actually quite low. In 2004, for example, there were 59 crashes resulting in injury. In 2006 there were 93, while last year there were 116 reported cases. Fatal crashes involving the diversion of a mobile device have dropped, however. In 2004, there were five fatal crashes that involved the diversion of a mobile device. In 2008, there was only one case.These figures may not paint the whole picture; many drivers involved in an accident might not want to admit that they were using a mobile device. An admission of guilt could cost some people their jobs if they have a contractual compliance clause banning mobile use while driving.While these accidents may only involve scrapes and dents or reckless driving, many cases may never even be reported. The NZ Police does not have statistics on crashes while using a mobile phone that have not resulted in injury.Under the proposed law change, drivers caught using a mobile device while driving will receive an instant fine of $50, or more telling, 25 demerit points. It would only take four occasions for a driver to be caught to lose their licence. This is not as bad as in some countries; in Ireland, which is often used as a statistical comparison for New Zealand, offenders can be jailed for three months for a third offence. In the Netherlands, offenders can be fined nearly $6000 or face two weeks in jail if caught using a mobile device behind the wheel. Still, if a New Zealand worker is caught using their mobile device while driving, then it could be catastrophic for those who rely on their vehicle for their living – like taxi drivers, travelling salespeople or courier drivers.The Health and Safety Employment Act 1992 clearly states that employers and people in control of places of work have the primary responsibility to manage workplace health and safety issues. Employees are supposed to take “all practical steps” to prevent people being harmed. This inadvertently involves staff while driving, because a car is an extension of the workplace. The Department of Labour takes the view that driving while talking on a mobile phone to be a “very poor safety behaviour”.With this veiled threat in mind, it appears that mobile phone use while driving during working hours is already risky behaviour in terms of an employer’s commitment to uphold health and safety laws.It appears that many companies already have a protocol in place for mobile usage while driving, but a question yet to be addressed is, how will an employer or even the authorities be able to police this policy? Many workers, especially those who have grown up with mobile phones, are very much accustomed to using their device while driving. Coupled with the pressure of trying to stay connected at any given moment, there will need to be a significant change in behaviour and company policies in the months to come.Mobile company Vodafone has a strict corporate policy of not using mobile devices while driving. The company began a public awareness campaign last year to make sure that those who use mobile devices while driving use a hands-free kit or a Bluetooth earpiece. The biggest bee in Vodafone’s bonnet is drivers who text, picture-message or email while driving.Vodafone spokesperson Paul Brislen says that many of Vodafone’s corporate customers already have a ‘no mobile while driving’ policy in place.Vodafone recommends drivers to turn off their mobiles if possible, but that if drivers need to use their device, they should pull over to the side of the road. The company believes that hands-free kits are helpful, but urges drivers to keep calls short. Vodafone also says we should make use of voicemail.Telecom supports any legislative move to ban or restrict hand-held use of mobiles in cars. Telecom’s policy internally and externally is for mobile users to pull over, stop the engine and make a call. If a phone call must be made or received, a hands-free kit should be used. The company advises its staff and contractors to avoid the distraction of a phone while driving. This means never texting, emailing, or taking photos or video with a mobile device while driving a vehicle.The new mobile company 2degrees, which will launch in August, agrees with both Telecom and Vodafone’s policies. “We support the ban and hope that the media interest in this will help to highlight the risks of using phones whilst driving. If you need to make a call, then pull over and call safely,” says a company spokesperson.Fonterra, which is one of the biggest New Zealand companies, has around 2000 staff with mobiles in the country and a sales force of around 1500 people in Asia and the Middle East. Because of the size of its mobile workforce, the company has had a policy in place for using mobiles while driving since December 2006, says GM global health and safety, Dean Young.He says Fonterra will not need to make any changes to its policy after the law change because it already “set the tone” 18 months ago.Fonterra’s mobile workforce is supplied with hands-free kits, which sell for around $150, and many staff who travel internationally always carry their hands-free devices as part of their luggage, says Young.The company’s policy, which is part of staff contracts, states that mobile use includes the use of smart phones, mobile devices and any personal handheld device. If staff make or receive calls, they must use a hands-free kit or an earpiece. If no hands-free kit is available, then staff are advised to turn their mobile devices off while driving. Text or emails are prohibited while driving.Young says although there have been no cases to date, if an accident involving a mobile occurs, disciplinary action will result.A company of Fonterra’s size makes it hard to police the policy, admits Young, but non-compliance will always be dealt with in a consistent manner.While health and safety compliance measures will need to be implemented for many companies, insurance coverage will also be an important issue to consider.Insurance companies’ motor policies generally cover claims where a driver has committed a driving offence, subject to all other aspects of the claim being above-board.Insurance company IAG says it has yet to draft a particular policy pertaining to the law change, but it will eventually be reflected in both its personal and commercial policies in the near future.The Automobile Association (AA), which represents a number of New Zealand businesses along with private vehicle owners, strongly believes that a large number of drivers we see on the road who cross lanes or who drive recklessly, are actually driving while using their mobile device.AA’s GM Mike Noon is outspoken about the proposed law change. Seventy-six percent of AA’s members actually support the proposed banning of mobile device usage in vehicles.Noon urges any drivers to simply pull over whether they need to place a call, send a message or answer a call. “If you get in your car, turn your phone off,” he says.Noon even goes so far as to say that mobile users should start changing their voicemail to inform callers that they may be driving, as a way to get the message across to others.Noon also agrees with the line of thought that hands-free devices are distracting, but he says realistically, people should keep their calls short and to a minimum while using hands-free units.Despite supporting a ban, the AA thinks the proposed 25 demerit points is too harsh. “We would prefer 10 demerit points,” Noon says.The AA would also like to place more emphasis on educating the public about the detrimental effect that using a mobile device has on drivers’ attention. Noon says this should be similar to the earlier emphasis on educating drivers on the importance of wearing seatbelts. Some advertisements, which are reminiscent of the ‘buckle up’ seat belt campaign last century, have begun to appear on prime time television.Under the proposed law change, mobile users will be able to use a hands-free unit. A range of epistemological studies carried out by the George Institute in Australia found that a driver’s use of a mobile phone was associated with a four-fold increase in the likelihood of crashing, irrespective of whether they were using handheld or hands-free devices.Based on the results of the Australian study, an estimated 45,000 drivers have crashed while using a mobile phone, and over the past year more than 145,000 drivers have experienced a ‘near miss’ due to talking on the phone, says Dr Suzanne McEvoy, Senior Research Fellow at The George Institute.If studies like these are taken on board by governments worldwide, hands-free kits could eventually be banned, but this seems to be an impractical approach.The proposed law change follows a public submission period, which drew a lot of interest from a range of individuals and groups. The Minister of Transport, Steven Joyce, is expected to make a decision nearer the end of the year. In the meantime, however, you should look at changing the way you think about using mobile devices while driving. You may even want to take on the AA’s advice and adopt a company policy of turning your mobile off when you get behind the wheel.