3.7.5 Drink/drug driving reductions

Workers who are injured as a result of drink or drug driving in or out of the course of employment may have weekly payments reduced, if the worker is convicted and/or found guilty of an offence. The reduction to weekly payments due to drink driving will be one-third or two-thirds depending on the worker’s blood alcohol concentration (BAC Blood Alcohol Concentration). The reduction to weekly payments due to drug driving will be one-third.

Workers who are required to have a BAC of 0.00 while working

If a worker is a person described in s52 of the Road Safety Act 1986, they are required to have a BAC of 0.00 while working.

S52 of the Road Safety Act 1986 applies to the following categories of workers/people:

• drivers without a full licence (learner and probationary drivers)
• drivers of a ‘large vehicle’ (eg trucks) as defined by the Road Safety Act 1986
• drivers who have a conditional licence where they are required to drive a vehicle with an alcohol interlock device. This is a device that will test the person’s breath and automatically stop the person from starting the vehicle if it detects alcohol in the sample
• taxi drivers
• commercially-operating driving instructors, while in charge of a vehicle and teaching a learner driver to drive
• Motor cycle drivers within the first year of holding the licence or shorter period as determined by VicRoads.

If a worker falls into one of the categories described above and is injured in a work-related An injury/disease is work related if it arose out of or in the course of employment and the scope of employment. transport accident Transport accident means a transport accident within the meaning of section 3(1) of the Transport Accident Act 1986 while driving with a BAC of more than 0.00 and is convicted and/or found guilty of an offence, the worker’s weekly payments may be reduced in accordance with the following:

1. by one-third, if the BAC is more than 0.00 and less than 0.12 and
2. by two-thirds if the BAC is 0.12 or more and less than 0.24 and
3. if the BAC is 0.24 or more the worker is not entitled to compensation.

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Workers who are required to have a BAC below 0.05 while working

If a worker is not a person described in s52 of the Road Safety Act 1986, they are required to have BAC below 0.05 while driving. If the worker is injured in a work-related transport accident while driving with a BAC of 0.05 or more and is convicted and/or found guilty of an offence, the worker’s weekly payments will be reduced in accordance with the following:

1. by one-third, if the BAC is 0.05 or more and less than 0.12 and
2. by two-thirds, if the BAC is 0.12 or more and less than 0.24.

If the BAC is 0.24 or more the worker is not entitled to compensation.

Workers driving whilst under influence of drugs

If a worker is injured in a work-related transport accident while driving with any concentration of a prescribed illicit drug in his or her oral fluid or blood and is convicted and/or found guilty of an offence, the worker’s weekly payments will be reduced by one-third. A ‘prescribed’ illicit drug is marijuana, amphetamines or MDMA (ecstasy).

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3.7.6 Exemptions to drink/drug driving reductions

Severe injury or death

If the drink or drug driving relating to the work-related transport accident results in the worker’s death or ‘severe injury’, the worker’s weekly payments must not be reduced.

See: Serious and wilful misconduct

BAC or drug concentration did not contribute to the injury

If the worker can satisfy the Agent on the balance of probabilities that the alcohol or drugs did not contribute to the injury, the worker’s weekly payments must not be reduced.

The Agent is not required to assess whether the worker’s BAC or drug level contributed to the injury, it is only where the worker relies on the defence that his or her concentration of alcohol or drugs did not contribute to the injury.

For example The injury occurred while the worker (a bus driver) was parking legally in a parking bay at the bus depot and is able to prove that the BAC did not contribute to the transport accident occurring when another driver ran into the bus.

Worker is a train or tram driver

If a worker is injured whilst driving a train or tram the exception does not apply. This is because the drink/drug driving offences originate from the Road Safety Act 1986 which excludes trains and trams from the definition of ‘motor vehicle’.

The Agent must consider whether the serious and wilful misconduct provisions are applicable instead of the reduction provisions.

See: Recovery for wrongful termination

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