New heavy vehicle driver fatigue laws for Victoria

By Luke Connolly.

Key Points:
Prudent operators will review their fatigue management policies and procedures now to ensure a smooth transition when the proposed laws are implemented, and also to comply with their current obligations under road transport and occupational health and safety laws.

In 2004, Ministers of the Australian Transport Council ("ATC") approved the development of national laws to manage heavy vehicle driver fatigue.

The National Transport Commission ("NTC"), in consultation with key stakeholders including transport agencies and the road transport industry, was charged with the task of developing model laws for implementation by New South Wales, the Northern Territory, Queensland, South Australia, Tasmania and Victoria.

The model laws were designed to provide a level of consistency with Western Australia, whose occupational health and safety legislation already specifically deals with issues of fatigue management.

The model laws were approved by the ATC in February 2007, and are consistent with current obligations under the Occupational Health and Safety Act 2004 (Vic) ("Vic OHS Act") that require employers to provide working environments that are, so far as is reasonably practicable, safe and without risks to health, and employees to take reasonable care for their own health and safety.

The Road Legislation Further Amendment Bill implements the NTC's model laws in Victoria, and primarily amends the Road Safety Act 1986 (Vic).

When do the new laws commence?

The NTC worked with the States and territories to agree a common implementation date in September 2008. Most of the Bill's commencement provisions reflect this agreement.

Who is affected?

• Drivers
• employers
• operators
• schedulers; and
• users and customers of road transport.

The new laws apply to trucks of greater than 12 tonnes gross vehicle mass and buses which seat more than 12 adults (including the driver).

Key components

The Bill includes:

• A general duty to manage fatigue, consistent with the Vic OHS Act
• Chain of Responsibility provisions, which extend to all parties in the supply chain whose actions, inactions or demands influence on-road conduct, including:
• drivers
• operators
• employers
• directors and senior managers
• loaders
• schedulers; and
• consignors and consignees.
• A greater emphasis on opportunities for sleep and rest
• Strengthened record-keeping provisions, including replacement of log books with driver work diaries
• Risk-based categorisation of offences and a revised range of sanctions
• Enhanced enforcement powers; and
• Three fatigue-management options, which provide alternative drive, work and rest hour requirements with variable levels of flexibility in return for increased fatigue management and compliance responsibilities on operators and drivers. The three scheme options are:
• A Standard Hours option, which is a default option prescribing minimum rest and maximum working hours, namely 12 working hours per day
• A Basic Fatigue Management option, which allows additional working hours while imposing increased fatigue management and compliance responsibilities on operators, namely 14 working hours per day with accreditation; and
• An Advanced Fatigue Management option, which allows more flexible working hours based on risk management, alternative compliance and quality assurance approaches.

Penalties for non-compliance

Under the new laws, VicRoads inspectors will have the power to issue written notices to drivers to take a rest or stop work immediately if they are found to be working in excess of permitted working hours. Inspectors will also have the power to issue Improvement Notices to operators and drivers.

Offences under the Bill are categorised according to whether the offence was based on a minor risk, a substantial risk, a severe risk, or a critical risk. Penalties for a first, minor offence are $5,506 for a corporation and $1,101.20 for individuals. Penalties for a first, critical offence, however, are $55,060 for corporations and $11,012 for individuals.

Offences are prosecuted by VicRoads in the Magistrates' Court.

How do I comply?

The NTC has developed Guidelines for Managing Heavy Vehicle Driver Fatigue, which provide advice on creating a systematic fatigue management system based on a risk-management approach.

While compliance with the NTC Guidelines is voluntary, the Bill specifies that in determining whether things done or omitted to be done by a person constitute "all reasonable steps", regard may be had to any guidelines about preventing or managing exposure to risks to safety arising from fatigue.

Implications

Under the proposed heavy vehicle driver fatigue laws, it will not be enough to simply rely on drivers to comply with the law if there are other suitable steps that could be taken.

Even though the new laws are not expected to commence until September 2008, prudent operators will review their fatigue management policies and procedures now to ensure a smooth transition when the proposed laws are implemented, and also to comply with their current obligations under road transport and occupational health and safety laws.

The penalties proposed by the new legislation provides some indication of the seriousness with which the legislature views fatigue management in the heavy vehicle industry. Non-compliance could have significant financial effects for all parties in the supply chain.

Thanks to Catherine Ford for her assistance in preparing this article.