Heavy Vehicle National Law – Fatigue Contraventions

The Heavy Vehicle National Law (HVNL) is the primary law governing the management of fatigue for heavy vehicles. Heavy vehicles are defined as vehicles that exceed 4.5 tonne gross vehicle mass.[1] Fatigue management law aims to provide for the safe management of fatigue for drivers of fatigue regulated heavy vehicles.[2] This is achieved through imposing duties on drivers and other persons who can influence the conduct of drivers in relation to fatigue. The HVNL also imposes general duties to prevent persons driving while impaired by fatigue. It prescribes maximum work requirements and minimum rest requirements for drivers and requires recording of work times and resting times for drivers.[3] Driving a vehicle while fatigued, can result in a collision which may result in a serious injury or death.

What is Fatigue?

Under the HVNL, the definition of fatigue includes feeling sleepy, feeling physically or mentally tired, weary or drowsy, feeling exhausted or lacking energy and behaving in a way that is consistent with these feelings.[4]

Determining Impairment by Fatigue

The court will consider a number of factors in determining whether a person was impaired by fatigue. These factors include:

Driver exhibiting any relevant signs of fatigue

Any relevant signs of fatigue may include the driver exhibiting signs they were sleepy, weary, tired, drowsy, exhausted or lacked energy. The court will also consider the extent to which the signs may indicate the driver was impaired by fatigue.[5]

Driver exhibiting behaviour that may have resulted from fatigue

The court will consider the actions of the driver which may have been impacted from fatigue. Driving behaviour that may indicate fatigue can include poor driving judgement such as failing to give way, drifting into other lanes or not changing gears smoothly, as well as the circumstances of any incident, crash, or near hit.[6]

Nature and extent of any physical or mental exertion by the driver

The court will consider the work activities performed by the driver in determining the nature of work in assessing the physical and mental exertion required to perform the activities.

Work activities which require a high degree of physical exertion, such as manually loading heavy cartons onto vehicles for a considerable duration, can be argued to contribute to fatigue. Similarly activities which require a high degree of mental exertion, such as performing complex calculations on load sheets, can be argued to contribute to fatigue.[7]

Whether the driver complied with work and rest hours

The court will consider whether the driver complied with their work and rest hours.[8] This includes assessing whether the driver worked in accordance with the maximum working hour limits and complied with the mandatory rest breaks.

The above factors are not the only factors the court will consider. The court has discretion to consider other matters in determining whether a person was impaired by fatigue.[9] It is important to note a person can still be deemed to be impaired by fatigue even if they have complied with the maximum working hours and mandatory rest breaks.[10]

Duty

The driver has a legal duty to avoid driving a fatigue regulated heavy vehicle on a road while impaired by fatigue.[11] Under the Chain of Responsibility this duty can also extend to other parties in the supply chain, which can include the driver’s employer, consignor, consignee, transport operator, loader, packer, or loading manager.[12]

Categories of Contraventions

There are four categories of contraventions under the HVNL for fatigue management. The categories vary depending on the severity of the contravention and are prescribed in the schedules to the fatigue management regulations for standard hours, Basic Fatigue Management (BFM) hours and Advanced Fatigue Management (AFM) hours.[13]

The severity of the contravention depends on the extent of the maximum working time violation and the extent of violation of minimum rest times. The different categories of contraventions are:

  • Minor Risk Breach
  • Substantial Risk Breach
  • Severe Risk Breach
  • Critical Risk Breach

Contraventions can be detected by the National Heavy Vehicle Regulator (NHVR) or Victoria Police by checking of compliance to fatigue management requirements. This may be achieved by inspecting work diaries, rosters, CCTV, photographs, toll road records and witness statements.

Work and Rest Hour Arrangements

Under the HVNL there are four different work and rest hour arrangements. Work and rest hours prescribe the maximum working time and minimum rest periods for drivers to manage the effects of fatigue. The different types of working arrangements are:

  • Standard work and rest arrangements (also known as ‘standard hours’)
  • Basic Fatigue Management (BFM) arrangements (also known as ‘BFM hours’)
  • Advanced Fatigue Management (AFM) arrangements (also known as ‘AFM hours’)
  • Work and rest hours exemption (also known as ‘exemption hours’)

Standard Hours

Standard hours are the default arrangements and apply to all drivers who do not have accreditation for Basic Fatigue Management (BFM) hours and Advanced Fatigue Management (AFM) hours. Standard hours prescribe the maximum working time and the minimum rest periods. These requirements differ between solo and multiple drivers (greater than two drivers).

The following summary provides a snapshot of the prescribed working arrangements for solo drivers under standard hours for comparative purposes. Note these are not the full requirements and should not be relied on as such.

  • In any period of 5 hours and 30 minutes:
    • Maximum of 5 hours and 15 minutes of work time
    • Minimum of 15 minutes of continuous rest
  • In any period of 8 hours:
    • Maximum of 7 hours and 30 minutes of work time work
    • Minimum of 30 minutes rest, in blocks of at least 15 continuous minutes
  • In any period of 11 hours:
    • Maximum of 10 hours work time
    • Minimum of 60 minutes rest time, in blocks of at least 15 continuous minutes
  • In any period of 24 hours:
    • Maximum of 12 hours work time
    • Minimum of 7 hours continuous stationary rest time [14]
Basic Fatigue Management (BFM)

BFM is only available to operators accredited under the National Heavy Vehicle Accreditation Scheme (NHVAS). BFM hours are also prescribed but allow operators greater flexible work and rest hours in exchange for the operator’s commitment to implementation of risk controls to manage fatigue.

For BFM, operators are required to comply with seven fatigue management standards to demonstrate risks arising from fatigue are adequately managed. The seven standards include scheduling and rostering, health and wellbeing, training and education, responsibilities and management practices, internal review, records and documentation and workplace conditions.

The following summary provides a snapshot of the prescribed working arrangements for solo drivers under BFM hours for comparative purposes. Note these are not the full requirements and should not be relied on as such.

  • In any period of 6 hours and 15 minutes:
    • Maximum of 6 hours work time
    • Minimum of 15 minutes continuous rest
  • In any period of 9 hours:
    • Maximum of 8 hours and 30 minutes work time
    • Minimum of 30 minutes rest time in blocks of at least 15 continuous minutes
  • In any period of 12 hours:
    • Maximum of 11 hours work time
    • Minimum of 60 minutes rest time, in blocks of at least 15 continuous minutes
  • In any 24 hours:
    • Maximum of 14 hours work time
    • Minimum of 7 hours continuous stationary rest time [15]
Advanced Fatigue Management (AFM)

AFM is also only available to operators accredited under the NHVAS. AFM allows for even greater flexibility than BFM as it allows operators to prescribe their own work and rest arrangements using a risk management approach. There are no prescribed maximum work and rest arrangements for AFM under HVNL. This is the highest accreditation for fatigue management and operators are required to demonstrate they have robust controls in place to manage the risks arising from fatigue. There is greater scrutiny on operators and this accreditation is granted through a rigorous application process.

Similarly to BFM, operators are required to comply with the seven fatigue management standards above. BFM and AFM accredited operators are audited periodically by independent auditors, to ensure compliance with the standards.

Work and Rest Hours Exemptions

Under the HVNL exemptions are also available which can exempt drivers from work time and rest time arrangements. Exemptions may apply for drivers in the following categories.

Emergency Services Exemption

The emergency services exemption exempts drivers from duties in relation to working time and resting time arrangements.[16]

The emergency services exemption applies to drivers of emergency vehicles who are acting in an emergency and have time critical duties to attend to or during the emergency. Emergency services includes ambulance, fire brigade, police, disaster or an emergency organisation of Commonwealth or state. An emergency includes an event or anticipated event that endangers life, property or the environment or disruption of communications, energy supply, water supply or sewerage services or is declared to be an emergency disaster by the Commonwealth or state.

Emergency services are also exempt from the work diary requirements discussed in the next section when acting in accordance with the above.[17]

Exemptions by Regulator  

Exemptions by Notice

The NHVR has the power to exempt class of drivers from particular maximum work requirements and minimum rest requirements.[18] This exemption is granted by a Commonwealth Gazette notice and is for a maximum period of 3 years. However the NHVR can only exercise this discretion if it is satisfied of the matters stated in section 267 of the HVNL. The NHVR has the power to amend or cancel an exemption by notice.[19]

The NHVR also has the power to exempt class of drivers from work diary requirements and can exempt record keepers from fatigue record keeping requirements by a Commonwealth Gazette notice.[20]

Exemptions by Permit

The NHVR can also grant an exemption for particular maximum work requirements and minimum rest requirements by a permit.[21] This exemption can be granted in conjunction with other working arrangements such as BFM and AFM. An application is required to be made in the approved form and contain the information stated in section 274 of the HVNL. The NHVR has the power to amend or cancel a permit after it has been granted.[22]

The NHVR also has the power to exempt drivers from work diary requirements and can exempt record keepers from fatigue record keeping requirements by a permit.[23]

Work Diary Requirements

A work diary records the actual working arrangements of the driver in respect to maximum working times and minimum rest times for the previous 28 days. The work diary will record information such as dates and times of commencement and finish of work, dates and times of rest breaks, odometer reading, driver’s name, licence details and the working arrangements the driver is working under. A work diary must be in the prescribed written form or in an approved electronic form.

A driver is required to complete and carry a work diary under standard hours if they are driving to an area greater than a radius of 100km’s from the driver’s base.[24]

A work diary is also required when working under Basic Fatigue Management (BFM) hours and Advanced Fatigue Management (AFM) hours.[25]

Work Diary Duties

Work diaries are critical documents in relation to fatigue management and are used to monitor compliance with fatigue management requirements. It is essential drivers are aware of their duties in relation to work diaries and comply with the requirements. The duties in relation to work diaries are extensive and include:

  • Duty to carry work diary and ensure it is completed for the previous 28 days [26]
  • Duty to record the required information in the work diary [27]
  • Duty to record information about the odometer reading [28]
  • Duty to make supplementary records when unable to use work diary [29]
  • Duty to notify NHVR if written or electronic work diary is filled up, destroyed, lost or stolen[30]
  • Duty to not make false or misleading entries in work diary [31]
  • Duty to not deface or change work records [32]
  • Duty to not make entries in someone else’s work records [33]
  • Duty to not destroy work records during retainment period [34]
  • Duty to not remove pages from written work diary [35]
  • Duty to not tamper with approved electronic work diary [36]
  • Duty to report tampering or suspected tampering of electronic work diary to NHVR [37]
  • Duty to keep work records for the retainment period [38]
  • Duty to not use an unapproved electronic work diary [39]

Fatigue Risk Management Controls

Duty holders should ensure risk controls are implemented and continually reviewed to manage the risks of fatigue. Technology is constantly advancing and can provide duty holders with effective risk controls to manage the risks. Examples of fatigue risk management controls include:

  1. Management of schedules and rosters to reduce the risks of fatigue
  2. Use of multiple drivers to reduce the risks of fatigue
  3. Health examinations of drivers to ensure fitness for work
  4. Documented procedures to manage driver fatigue and fitness for duty
  5. Driver observation checks for signs of fatigue
  6. Implementing driver monitoring systems in vehicles to detect fatigue
  7. Implementing driver wearable devices to detect fatigue
  8. Implementing technological aids in vehicles (e.g. collision avoidance technology, driver assistance systems, blind spot monitoring etc) to reduce the exertion of driving
  9. Conducting regular training sessions with drivers to reinforce the risks and controls in relation to fatigue
  10. Controlling the non-driving work activities of drivers to prevent driver fatigue
  11. Ergonomic vehicle cabin workstation assessments and optimisation to prevent driver fatigue

 


[1] Heavy Vehicle National Law 2013 (Vic) section 6.

[2] ibid section 220.

[3] ibid section 220.

[4] ibid section 223.

[5] ibid section 226.

[6] ibid section 226.

[7] ibid section 226.

[8] ibid section 226.

[9] ibid section 226.

[10] ibid section 226(2).

[11] ibid section 228.

[12] ibid section 26A.

[13] Heavy Vehicle Fatigue Management Regulation 2013 (Vic) schedule 1.

[14] ibid schedule 1.

[15] ibid schedule 2.

[16] Heavy Vehicle National Law 2013 (Vic) section 265.

[17] ibid section 356.

[18] ibid section 266.

[19] ibid section 271.

[20] ibid sections 357, 378.

[21] ibid section 273.

[22] ibid section 281.

[23] ibid sections 363, 383.

[24] ibid section 291.

[25] ibid section 291.

[26] ibid section 293.

[27] ibid section 295.

[28] ibid section 298.

[29] ibid section 305.

[30] ibid section 308.

[31] ibid section 325.

[32] ibid section 329.

[33] ibid section 330.

[34] ibid section 331.

[35] ibid section 332.

[36] ibid section 335.

[37] ibid section 336A.

[38] ibid section 341.

[39] ibid section 347.