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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Fatigue Management Obligations


Heavy Vehicle National Law (HVNL) applies in New South Wales, and contains provisions for offences related to fatigue management. Under the legislation, the core duty of a driver is that they must not drive a fatigue-regulated heavy vehicle on a road while impaired by fatigue.

Fatigue-related heavy vehicles

The laws apply to “fatigue-related heavy vehicles”, which are:

  • any vehicle with a Gross Vehicle Mass (GVM) of more than 12 tonnes;
  • a combination that creates a GVM of more than 12 tonnes;
  • buses with a GVM of more than 4.5 tonnes, fitted to carry 12 adults (including the driver);
  • a truck or a combination including a truck, with a GVM of more than 12 tonnes with a machine or implement attached.

Heavy vehicles such as bulldozers, and motorhomes designed for permanent living, do not fall within the classification.

Work time and rest time

HVNL requires that work time and rest time be measured in a specific way in order to prevent driver fatigue. Work time is time spent operating a fatigue-regulated heavy vehicle. It includes:

  • loading and unloading;
  • inspecting, servicing and repair work;
  • attending to the load or passengers;
  • cleaning or refuelling;
  • instructing or supervising a driver;
  • recording information.

Rest time is time that is not work time. There are HVNL rules that enforce rest breaks after certain periods of work time.

HVNL sets out three work and rest options: standard hours, Basic Fatigue Management (BFM) and Advanced Fatigue Management (AFM). Standard hours are the maximum work hours and minimum work hours under the HVNL; BFM allows flexible work and rest hours; and AFM allows a person to work their own hours in a compliant fatigue management system.

Record keeping

Specific information must be recorded by an employer, accredited operator or driver, to comply with HVNL. The information includes:

  • driver details;
  • fatigue-related heavy vehicle details;
  • dates the vehicle was driven;
  • the total work and rest hours for each driver for each day;
  • driver rosters and trip schedules;
  • driver timesheets and pay records.

The records must be kept for three years, in an easily-read format, and in a location accessible for an authorised officer.

Work diary

Any driver who travels more than 100km from their home base, under any of the three work and rest options, must carry and complete a National Driver Work Diary to demonstrate compliance with HVNL and that fatigue is being managed.

Chain of Responsibility

HVNL contains Chain of Responsibility (COR) laws to ensure all parties in the supply chain share responsibility for HVNL compliance, including fatigue management. Parties are:

  • employers;
  • prime contractors (if the driver is self-employed);
  • operators;
  • schedulers;
  • loading managers;
  • consignors and recipients;
  • loaders and unloaders.

COR may apply when an unrealistic direction, requirement or demand is given to a driver that causes or encourages them to drive while fatigued.

Exemptions

Operators and drivers can apply for exemptions to work and rest hours, work diary and record-keeping if they cannot reasonably work within the fatigue management laws. The exemptions allow those operators and rivers to comply with the objectives of HVNL while maintaining road safety. The National Heavy Vehicle Regulator has strict criteria for exemption applications.

Penalties

The maximum penalties for work and rest hours offences depend on the risk category of the offence. There are four risk categories:

  • minor: $4470;
  • substantial: $6740;
  • severe: $11,210;
  • critical: $16,830.

Severe risk and critical risk offences also incur demerit points. Offences are categorised by the length of time a person worked above their allowable work hours or below their allowable rest hours. Whether the person was actually fatigued is irrelevant; an offence is determined solely by contravention of the laws governing work and rest hours.

The maximum penalty for driving a fatigue-related heavy vehicle when impaired by fatigue is $6850 and three demerit points.

Defences

The defences available will depend on the type of offence and a person’s position in the COR.

Drivers

If a person is charged with driving while impaired by fatigue, the prosecution will need to show:

  • the person was driving a fatigue-related heavy vehicle;
  • the person was fatigued; and
  • the fatigue affected the person’s ability.

Evidence would normally be called to show the driver took sufficient breaks, did not appear to be fatigued, and any problem driving could be due to another reason.

COR

A person charged as a party in the COR may rely upon a “reasonable steps” defence. They will need to show:

  • they did not know, and could not reasonably have been expected to have known, of the contravention; or
  • they either took reasonable steps to prevent the contravention or there were no such steps available.

The court will consider factors such as training given to employees to ensure compliance and action taken to remedy similar compliance problems.

For advice or representation in any legal matter, please contact Armstrong Legal.

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