Recently we discussed mass, load and dimension requirements under the Master Industry Code of Practice (Master Code) registered by the National Heavy Vehicle Regulator (NHVR). In this article we’ll be looking at fatigue management.
As we did with mass, load and dimension, we thought we would provide a refresher of what the requirements are under the Heavy Vehicle National Law (HVNL) in relation to fatigue.
Driving while fatigued is a major safety hazard and the HVNL attempts to address that hazard by imposing various obligations, including counting time and record keeping requirements, to ensure that the main causes of fatigue are addressed.
The legislative regime is covered under part 6.2 of the HVNL.
Section 26C is the primary duty in the HVNL. Each party in the chain of responsibility for a heavy vehicle must ensure, so far as is reasonably practicable, the safety of the party’s transport activities relating to the vehicles.
Section 26E of the HVNL requires that a person must not ask, direct or require (directly or indirectly) the driver of a heavy vehicle or a party in the chain of responsibility to do or not do something the person knows, or ought reasonably to know, would have the effect of causing the driver:
- to drive a fatigue-regulated heavy vehicle while impaired by fatigue; or
- to drive a fatigue-regulated heavy vehicle while in breach of the driver’s work and rest hours option; or
- to drive a fatigue-regulated heavy vehicle in breach of another law in order to avoid driving while impaired by fatigue or while in breach of the driver’s work and rest hours option.
In considering whether the above provision has been breached, a court will look to any cause or signs of fatigue arising in the circumstances of the relevant transport activities. Cause of fatigue means “any factor that could cause or contribute to a person being fatigued while driving a fatigue-regulated heavy vehicle on a road (whether or not the cause arises while the person is at work)”. Examples of signs of fatigue, as defined in section 221 of the HVNL, include:
- lack of alertness
- inability to concentrate
- reduced ability to recognise or respond to external stimuli
- poor judgment or memory making more mistakes than usual
- drowsiness, or falling asleep, at work (including microsleeps)
- finding it difficult to keep eyes open
- needing more frequent naps than usual
- not feeling refreshed after sleep
- excessive head-nodding or yawning
- blurred vision
- mood changes, increased irritability or other changes to the person’s mental health
- changes to the person’s health or fitness.
In addition to those duties, there are obligations concerning work and rest hour options under Part 6.3 which identifies drivers’ work and rest time requirements. The HVNL and the Regulations require that work time and rest time be counted in a certain way in order to be compliant.
Sections 250 and 251 requires that drivers cannot work more than the maximum work time stated in the standards hours for the period and resting less than the minimum rest time stated in the standard hours for the period. The standard work and rest hours for a given period are set out in tables in Schedule 1 of the Regulations.
Part 6.4 sets out the requirements about record keeping. These requirements range from drivers of fatigue-related heavy vehicles having to keep work diaries to evidence the work and rest hours being complied with to ensuring businesses document their policies and procedures to manage fatigue related risks.
Documenting policies and procedures becomes extremely important, not only for ensuring that those policies and procedures are clear, easily disseminated and consistent, but also to assist businesses in showing that “all reasonably practicable steps” have been taken should you be investigated or prosecuted.
Record keepers must keep a record of specific information for drivers of fatigue regulated heavy vehicles. A record keeper may be the employer (if the driver is employed), accredited operator (if the driver is working under Basic Fatigue Management or Advanced Fatigue Management accreditation) or the driver themselves (as a self-employed or owner driver). For each driver the record keeper must keep:
- the driver’s name, licence number and contact details
- the dates fatigue regulated heavy vehicles were driven
- the registration number of the vehicle(s) driven
- the total of each driver’s work and rest times for each day and each week
- copies of duplicate work diary daily sheets (if applicable)
- driver’s rosters and trip schedules (including changeovers)
- driver timesheets and pay records
- any other information as required as a condition of an accreditation or exemption (such as driver training and health assessments).
So what does the Master Code say about fatigue?
The main purpose of fatigue management under the HVNL is to prevent drivers being impaired by fatigue when operating a vehicle and ensure that those in the supply chain aren’t influencing (or in some cases demanding) those drivers to drive while fatigued.
There isn’t a fancy definition on what “fatigue” is. Fatigue is simply defined as, “… when you feel sleepy, physically or mentally tired, weary or drowsy, exhausted and/or lacking in energy (section 223 of the HVNL)… The main causes of fatigue or drowsy driving are too little sleep, driving at times when you would normally be asleep and/ or working or being awake for very long hours”.
The Master Code goes on to say that:
“a driver impaired by fatigue may experience momentary lapses in alertness, often known as micro sleeps. A fatigued driver experiencing a micro sleep travelling at 80km/h can travel close to 90m with their eyes closed in a span of 4 seconds, entirely unaware of what is happening. 24 There is also a likelihood of a driver taking greater risks in the control of a vehicle when impaired by fatigue. This can result in poor speed control, lane departures and poor decision making.”
The Master Code’s purpose is to assist parties in the CoR implement a risk-based approach to managing safety and encourages CoR parties to implement controls to address, among other things, contributing factors that may cause safety risks and encourage divers to driver a heavy vehicle whilst fatigued or in breach of their requirements for work and rest times.
Some of those contributing factors that may cause or encourage breaches of the fatigue provisions of the HVNL include:
- lack of policy and procedures, or systems to report non-compliance
- ineffective two-way consultation, cooperation and coordination of all parties along the supply chain
- inadequate information, training, instruction and/or supervision of fatigue management requirements and associated policies and procedures
- conflicting commercial arrangements or employment terms between parties
- ineffective monitoring and management of driver fatigue levels
- inadequate assessment of driver fitness including health (physical and psychological factors) and medical issues } lifestyle factors such as poor quality of sleep, drug and alcohol use, lack of exercise or poor dietary habits
- workplace factors including the work environment and job demands
- poorly planned trip schedules and driver rosters and/or inadequate oversight to verify suitability
- inflexible loading and unloading schedules and/or poor monitoring of time spent on site
- inadequate work records and/or inadequate oversight to ensure compliance
- deliberate actions of drivers or other parties
- inadequate monitoring and/or due diligence by all parties to ensure safety and compliance of transport activities.
What you can do and why
The risk-based approach to prevent drivers from being impaired by fatigue requires CoR parties to be proactive and focused on the outcome of managing risks associated with transport activities.
Developing a “risk management process” is set out under section 3 of the Master Code.
In summary, a risk management process must addressed the following four steps:
- Identify hazards—find out what could cause harm or loss
- Assess risks—understand the harm or loss that could be caused by the hazard, how serious it could be and how likely it is to occur
- Control risks—implement the most effective control that is reasonably practicable in the circumstances
- Monitor and review controls—make sure controls remain effective over time and work as planned.
The above four steps are integral to any risk management process, irrespective of the risk and nature of the transport activities of CoR parties. However, the ways to implement the four keys criteria will depend on the business. For example, larger businesses with a greater exposure to risk are likely to need more complex risk management processes whereas smaller operators are likely to need a simpler approach.
Credit: 4 Safe Work Australia, Code of Practice: How to manage work health and safety risks, May 2018, p.8.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.