Fatigue Management Obligations
The driver fatigue rules are some of the most stringently enforced laws relating to truck drivers. Almost every person involved in the trucking industry is subjected to fatigue management obligations and can be charged with an offence where a breach occurs. The penalties are significant, being large fines and demerit points.
Unfortunately, the laws are also very complicated.
What Vehicles do the Driver Fatigue Laws Apply to?
The driver fatigue laws apply to any “fatigue-regulated heavy vehicle”. This is defined as:
- Any motor vehicle with a GVM of more than 12 tonnes.
- Any combination (i.e. motor vehicle towing 1 or more trailers etc) with a GVM of more than 12 tonnes
- A bus with GVM or ATM of more than 4.5 tonnes and is built or fitted to carry more than 12 adults (including the driver)
There are some exceptions to the above. The following vehicles are not “fatigue-regulated heavy vehicles” even if they otherwise meet the above criteria:
- A motor vehicle built to operate primarily as a machine or implement off road
- A motor home
- A vehicle that is not capable of carrying goods or passengers by road
Who in the Chain of Responsibility has to Comply with the Fatigue Rules?
The driver fatigue rules fall within the “Chain of Responsibility” regime. This means that a range of people within the trucking industry can be charged with the offence, even if they are not the driver.
The following people are required to ensure compliance with the fatigue rules:
- Prime contractors
- Loading managers
Duty to Prevent Actual Fatigue
It is a crime to drive a fatigue-regulated heavy vehicle on a road while impaired by fatigue. Being impaired by fatigue means that the driver’s ability to drive the vehicle safely was affected by fatigue.
The maximum penalty for a driver is $6,300 and 3 demerit points (as at April 2016).
Each person in the Chain of Responsibility must take all reasonable steps to ensure that another person does not drive a fatigue-regulated heavy vehicle while impaired by fatigue. The specific obligations vary depending on the person’s role. A person can be found guilty of this offence even if no one actually drove while fatigued.
The maximum penalty for a party to the Chain of Responsibility is $10,490 (as at April 2016)
Duty to Comply With Prescribed Work and Rest Hours
The maximum penalty for work and rest hour offences depends upon the risk category of the offence. There are four categories:
- minor risk breach – maximum penalty $4,200
- substantial risk breach – maximum penalty $6,300
- severe risk breach – maximum penalty $10,490
- critical risk breach – maximum penalty $15,750
Severe risk and critical risk breaches also carry demerit points.
(All penalties are correct as at April 2016)
The risk categories are determined by how many minutes a person worked above their allowable work hours or below their allowable rest hours. In determining the categories no consideration is given to whether the person was actually fatigued, whether there was an accident etc. It is based entirely on the hours worked.
What are a Person’s Work and Rest Hours?
A drivers’ work and rest hours vary depending on whether they are driving under standard hours, BFM hours or AFM hours.
The hours are set out in the front of the work diary. You can download a copy here https://www.nhvr.gov.au/files/nhvr-national-driver-work-diary-08-2013.pdf
Counting Work and Rest Time
Counting your work periods from the incorrect point in time is one of the most common mistakes leading to breaches of the fatigue hours.
Many drivers believe that their 24 hour period is counted from midnight to midnight (i.e. a calendar date). No doubt this is because the work diary pages are formatted in this way. However this is not correct.
Where the relevant period requires a ‘major rest break’ (i.e. a break of 5 or more continuous hours) the period is counted from the end of a relevant major rest break.
For example if a driver is required to take a continuous 7 hour break in any 24 hour period, the 24 hour period will commence at the end of a 7 hour break. So if the driver finishes a 7 hour break at 6:30 am and begins driving, their 24 hour period will run from 6:30 am to 6:30 am the next day. They must make sure not to work more than their allowable hours and to have all necessary breaks in that time.
However, if the person has another major rest break within the period this will not “restart the clock”. The person will now have two separate 24 hour periods running. They must ensure to comply with the rest and work hours for both of those 24 hour periods.
Where the required break is less than a major rest break, the period of time commences at the end of the relevant period of rest time.
Defences to Driver Fatigue Charges
There are a number of defences available when you are charged with a driver fatigue offence. These defences will depend on what type of offence you have been charged with and what role you play in the Chain of Responsibility.
Defences for drivers
If you are charged with an offence of driving while impaired by fatigue the prosecution will need to show that:
- You were driving a fatigue-regulated vehicle
- You were fatigued
- That fatigue affected your ability to drive the vehicle safely
The most common defences will be that you either were not fatigued or that your ability to drive safely was not affected by fatigue. In raising this defence, you would usually call evidence to show that you had taken sufficient breaks, that you did not appear to be fatigued (for example by appearing sleepy etc), and that any issues with your driving could have another explanation.
Defences for people in the Chain of Responsibility
A person who is charged with a work or rest hours offence as a member of the Chain of Responsibility (i.e. other than the driver) may rely upon a “Reasonable Steps” defence.
In order to succeed on this defence, the person must show that:
- They did not know, and could not reasonable be expected to have known, of the contravention; and
- They either took all reasonable steps to prevent the contravention or there were no such steps available.
There are a range of factors that the Court will consider when deciding whether the person has taken “all reasonable steps”. Some of these are:
- the steps taken to prevent or minimise the likelihood of the contravention occurring
- the measures taken to include compliance assurance provisions in commercial arrangements.
- training given to employees to ensure compliance
- steps taken to remedy similar compliance problems
WHERE TO NEXT?
In NSW, traffic offences are treated seriously. Therefore, it is important to get competent legal advice as early as possible, whether you have received a penalty notice, had your licence suspended or been charged with a serious offence. Our lawyers are highly experienced and understand the difficulties you face without a licence. We can guide you through the process while dealing with the various authorities related to your matter.