Under the new Part 4.5, Chapter 4, of the Occupational Health and Safety Regulation 2001 (NSW), employers, head carriers, consignors and consignees have various obligations to minimise the risk of harm to safety of truck drivers due to fatigue.
Part 4.5 commenced on 1 March 2006 and effectively introduces the concept of "chain of responsibility". That is, all parties who play a significant role in the transport task bear some responsibility in relation to the fatigue of drivers. However, some exceptions apply; for instance, Part 4.5 does not cover consignors and consignees with fewer than 200 employees.
The Regulation applies to the transportation of freight by a heavy truck for more than 500 km, including any distance travelled in the journey to collect freight or return to base. A heavy truck is a motor vehicle or combination whose gross vehicle mass exceeds 4.5 tonnes.
A "carrier" is one who, in the course of business, transports freight for another person by a motor vehicle.
A "head carrier" is a carrier that is not self-employed.
There are three types of "self-employed carriers":
- First, if it is a partnership and only a partner drives a heavy truck, the carrier will be self-employed.
- Secondly, if the carrier is a body corporate, and only the director, his/her family members, or a person who, with his/her family members, has a controlling interest in the body corporate, or a member of such a family, drives a heavy truck, the carrier is self-employed.
- Thirdly, if an individual is the carrier and is the only person to drive the heavy truck, that individual is a self-employed carrier.
A "consignor" is one from whom a consignment of freight is to be delivered.
A "consignee" is one who receives a consignment of freight.
Under the Part 4.5, relevant consignors and consignees are also responsible for the acts of their agents.
Duty to assess and manage fatigue of drivers
Under Part 4.5, an employer cannot allow an employee to transport freight long distance unless it has assessed the risk of harm to the employee from fatigue. To the extent that the employer's activities contribute to this risk, it must eliminate the risk or, if elimination is not reasonably practicable, control the risk.
Similarly, a head carrier, consignee or consignor cannot enter a contract with a self-employed carrier to transport freight long distance, unless it has assessed and eliminated or controlled the risk, to the extent its activities contribute to such risk.
Specific consignor and consignee duty
Before it can make a contract with a self-employed carrier to transport freight long distance, a consignor or consignee must be satisfied on reasonable grounds of two things:
- First, that the delivery time under the contract is reasonable. What is reasonable includes considerations such as industry knowledge of a reasonable time for taking such a trip, including things like loading, unloading an queuing times.
- Secondly, that a driver fatigue management plan ("DFMP") covers each driver that will transport freight long distance.
A consignor or consignee must keep all documents that it relied on to be satisfied of these matters.
Driver fatigue management plans
Employers that employ drivers that transport freight long distance must have a DFMP to cover those employees.
Similarly, a head carrier, consignor or consignee that enters into a contract with a self-employed carrier that will carry freight long distance must prepare a DFMP for all drivers who will transport freight long distance under the contract.
A DFMP must address various matters to the extent they may affect driver fatigue. These matters include trip schedules and rosters, taking into account such things as:
- time required to perform tasks safely;
- time actually taken to perform tasks;
- required rest periods to allow drivers to recover from fatigue;
- the cumulative build-up of fatigue and its effects;
- the effect that the time of day or night has on the performance of the task.
The DFMP must address management practices, including:
- methods for assessing the suitability of drivers;
- systems for reporting hazards and incidents;
- systems for monitoring driver health and safety.
The DFMP must also address the work environment and amenities, training and information provided to drivers about fatigue, loading, unloading and queuing schedules and accidents or mechanical failures.
Copies of the plan must be given to each driver that the DFMP covers.
The DFMPs must be kept for five years, along with contracts that relate to transportation of freight long distance, trip schedules, delivery timetables, driver rosters and risk assessments.
Under Part 4.5, those in the "chain of responsibility" must have business practices that will combat truck-driver fatigue in the long distance transport industry.
Procedures for identifying risks of harm from fatigue, as well as implementing appropriate action to eliminate or control the risk, must be in place.
DFMPs are also mandatory and will help minimise risk. DFMPs should aim, for example, to ensure that no driver is on the road for long periods of time, that scheduling allows sufficient time for lawful completion of the consignment, drivers are permitted to rest regularly and drive within the speed limit.
Thanks to Maurice Baroni and David Collits for their help in writing this article.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.