In our last Transport & Logistics Newsletter, we outlined the proposed changes to the Heavy Vehicle Driver Fatigue Act 2006 and how it might affect your business.
The new laws impose obligations on all key players, including:
- transport companies;
- employers/prime contractors/operators;
- drivers;
- schedulers;
- consignors/consignees; and
- loaders/unloaders.
The new laws have been developed in several model bills produced by the National Transport Commission (NTC) after extensive consultation between industry stakeholders, the Commonwealth and state and territory governments. The aim is for each state and territory to adopt the model bills.
Work/rest options
Under the model bills, businesses will need to decide which ‘work/ rest option’ best suits their operations, including:
- Standard Hours;
- Basic Fatigue Management (BFM); and
- Advanced Fatigue Management (AFM).
Standard Hours will suit most businesses as it sets default limits for maximum work and minimum rest hours and contains basic record keeping requirements. If a business requires more flexible hours, they can consider applying for BFM or AFM in which operators must demonstrate greater accountability for managing fatigue risks.
Among other things, BFM and AFM standards require:
- all drivers, schedulers and those involved in managing driver schedules and the fatigue management system to demonstrate competence in managing driver fatigue, to be assessed by a Registered Training Organisation (RTO);
- drivers to be certified as ‘fit to drive a heavy vehicle’ by a medical practitioner according to the Assessing Fitness to Drive by Ausroads (or equivalent document approved by the Australian Transport Council). Examinations are to be conducted, as a minimum, once every three years for drivers aged 49 or under, and yearly for drivers aged 50 or over;
- work diaries to be used to record work/rest hours (irrespective of the distance travelled); and
- the policies and procedures of the company to meet audited fatigue management standards under the National Heavy Vehicle Accreditation Scheme (NHVAS).
Reasonable steps
The new laws ensure all parties in the supply chain take ‘reasonable steps’ to prevent fatigue. Under the model bills, a person is considered to have taken reasonable steps when he/she can prove that he/she did not know, and could not reasonably be expected to have known, of the contravention and either:
- he/she had taken all reasonable steps to prevent the contravention; or
- there were no steps that he/she could reasonably be expected to have taken to prevent the contravention.
Penalties for breach
Under the compliance and enforcement model bill, breaches are categories of minor risk, substantial risk, or severe risk. Penalties for a ‘severe risk’ breach by an individual range from $5,000 for a first offence to $10,000 for a second or subsequent offence (and include demerit points). Penalties for similar offences by a body corporate range from $25,000 for a first offence to $50,000 for a second or subsequent offence. Under the fatigue management model bill, there is an additional category - a ‘critical risk’ breach - which attracts a $10,000 penalty for both first offences and subsequent offences for individuals.
Certain contracts prohibited
Under the model bills, heavy penalties for a 'critical risk' offence apply if a person enters into a contract or agreement with a driver or other party in the chain of responsibility that would cause, encourage or provide an incentive to breach the driver fatigue laws or other road laws. This obligation affects not only parties in the chain of responsibility but their customers and other contracting parties too.
What next?
The new laws come into force in Victoria, South Australia, New South Wales and Queensland on 29 September 2008.
If you require further information about the new laws and how they impact on your business, please do not hesitate to contact Elizabeth Guerra-Stolfa, Partner, on +61 3 9608 2144 or e.guerra@cornwalls.com.au
