Increased charges…methods of overcoming driver fatigue… preventing breaches of work hours – these are all aspects of new and proposed legislation for the road transport industry which owners, managers and drivers need to understand.

Heavy Vehicle Registration Fee Increase
On 1 July 2007 registration fees for heavy vehicles increased by a maximum of either 3.5 per cent or CPI (whichever is lower).

Despite this increase, it is anticipated that heavy vehicle registration charges may potentially increase significantly in the future on account of the fact that road expenditure has increased 29 per cent and the regulators (being The Council of Australian Governments (COAG) and the Australian Transport Council (ATC)) are keen to ensure that heavy vehicles are charged according to their road usage.

The Third Heavy Vehicle Charges Determination will be implemented on 1 July 2008. The types of changes that have been mooted are a doubling if not a quadrupling of registration fees over time.

Proposed Road Transport Bill– Heavy Vehicle Driver Fatigue Act 2006 (“Bill”)
As part of the Third Heavy Vehicle Reform package, the ATC endorsed a legislative framework in February 2007 for fatigue management in the road transport industry. The rationale for the Bill is to legislate heavy vehicle driver fatigue as part of a system of nationally-consistent road transport laws.

“Heavy vehicles”
The Bill applies only to heavy vehicles, defined as a truck with a gross vehicle mass over 12 tonnes or a bus built to carry more than 12 passengers.

Who this Bill would apply to
The Bill proposes that from September 2008, any person who either:

• drives a regulated heavy vehicle (including employees or self-employed drivers);
  or
  
• influences the conduct of drivers of heavy vehicles while driving
  (eg. employers, prime contractors, schedulers, consignors and loading managers)
  is required to identify, assess and provide for the safe management of fatigue.
  

This Bill also proposes provisions to accommodate the Chain of Responsibility legislation, which came into force in 2005.

Fatigue obligations under the Bill
The Bill defines “fatigue” as feeling and/or behaving in a way that makes a person sleepy, or physically or mentally tired. It provides that a driver must not drive a heavy vehicle if impaired by fatigue. If they do they may attract a severe risk offence. In addition, it provides that a party in the Chain of Responsibility must also take reasonable steps to ensure a driver is not impaired by fatigue.

There are also specific duties outlined in the Bill for employers, prime contractors, operators, schedulers, consignors, consignees and loading managers.
For example, a person is prohibited from asking, directing or requiring a person to drive:

• while impaired by fatigue; or
  
• in breach of work/rest hours.

In addition, a person is prohibited from entering into a contract or agreement with a driver and a party in the Chain of Responsibility if the person knows or reasonably ought to have known that the driver is impaired by fatigue or in breach of their work/rest hours.

Fatigue modules
The Bill sets out three work/rest hour fatigue modules that a company or owner operator may choose to operate under. Each of
these fatigue modules provides its own specific requirements to ensure the safe management of fatigue:

• Standard Hours: In any period of 24 hours, a driver must not work more than 12 hours; or
  
• Basic Fatigue Management (BFM). In any period of 24 hours, a driver must not work more than 14 hours; or
  
• Advanced Fatigue Management (AFM). In any period of 24 hours, a driver must not work more than 16 hours.

Work diary obligations under the Bill
The Bill provides that irrespective of the fatigue module chosen, every driver must carry a work diary (either written or electronic) if:

• engaged in work within a radius of more than 100km from the driver’s base (‘100+ km work’);
  
• engaged in 100+km work in the last 28 days; or
  
• driving under BFM (14) or AFM (16) hours.

These work diaries will replace the current logbooks and must be kept for three years. Existing logbooks will be permitted for use under the proposed Standard Hours scheme for 90 days after the Bill comes into force. Work diaries will be issued by the relevant authority. There are infringement and court-imposed penalties for not recording the necessary information, falsifying records and/or tampering with electronic diaries.

BFM and AFM accreditation
Drivers and companies wishing to operate under either BFM or AFM, must be accredited, with an approved fatigue management system compliant with standards and business rules strictly set out under each of these regimes.
The National Transport Commission (NTC) has prepared a report entitled “Setting Standards for Knowledge and Awareness about Fatigue Management in the Heavy Vehicle Industry”, outlining the required competencies for all parties affected by the Bill. These standards indicate that as part of BFM and AFM accreditation, all personnel should be inducted and regularly updated in fatigue management policies and procedures.

Accreditation can be varied, suspension or cancelled by the relevant authority.

Reasonable steps defence
The Bill provides for a “reasonable steps” defence in circumstances where a person:

• has taken all reasonable steps to prevent a contravention; or
• could not reasonably be expected to have taken any steps to prevent a contravention.
  

The Bill sets out some examples of what would constitute taking reasonable steps, including:

• consulting drivers and reviewing driving and work schedules;
• reviewing loading and unloading times and allowing for some delays;
• regular health and safety audits; and
• a system for remedying problems of fatigue and work/rest hours

Penalties under the Bill
It is proposed that penalties will be enforced by an authorised officer or police officers and that proposed contraventions will be assessed by risk, ranked from minor to severe with breaches attracting penalties of up to $50,000.00 per offence and demerit points for drivers.

Transitional provisions
If a driver is accredited under the Transitional Fatigue Management Scheme (TFMS) the Bill allows affected parties under TFMS to transmit smoothly either to BFM or AFM. Current TFMS accredited operators who do not apply for BFM or AFM will transfer to the 'default' Standard Hours regime.

Proactive ways to ensure your company is safely managing fatigue

• analyse all current freight/bus routes undertaken and determine what fatigue management module works best for your
  business;
• write procedures on how your organisation carries out different freight/bus routes;
  
• maintain a register of all freight/bus routes and when and where your drivers should have rest breaks;
  
• ensure you have a fatigue management system as part of your induction program including all staff involved in the
  freight/bus task within your organisation;
  
• create procedures that will ensure drivers reach their home/sleeping quarters to prevent breaches of working hours with the
  proposed laws;
  
• if your organisation’s freight/bus routes are between states or territories, govern your fatigue management systems around
  the ‘worse case’ scenario to ensure compliance; and
  
• talk to your clients/suppliers to make sure they understand their responsibilities and obligations under the Bill.
  

 

For further information, please contact Elizabeth Guerra-Stolfa on +61 3 9608 2144 or e.guerra@cornwalls.com.au or Jody Freestone
on +61 3 9608 2110 or j.freestone@cornwalls.com.au

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