In a recent issue of its On The Road newsletter to industry, the National Heavy Vehicle Regulator (NHVR) explained the risks of engaging in requests and contracts that are prohibited under the Heavy Vehicle National Law (HVNL).
The advice is essential reading for anyone who can directly or indirectly influence a heavy vehicle driver or a party in the Chain of Responsibility (CoR) regarding speed, fatigue and work and rest hours.
The regulator reminded operators that if you manage, employ or have any influence over the transport activity of another party, it is your responsibility to adhere to the HVNL which prohibits: “Requesting, directing, or contracting in a way that would cause or encourage a driver to breach fatigue requirements or speed limits or that would result in another party in the Chain of Responsibility (CoR) causing a driver to breach fatigue requirements or speed limits.”
Below is an edited extract from the regulator’s guidance. For more information, visit nhvr.gov.au and search for regulatory advice.
What are my legal obligations?
It is your responsibility to ensure transport requests or contracts are within the law.
Under the HVNL (section 26E), any person is prohibited from requesting, directing, or contracting in a way that would cause or encourage a driver to breach fatigue requirements or speed limits or that would result in another party in the CoR causing a driver to breach fatigue requirements or speed limits.
A person commits an offence under the HVNL, section 26E:
Under section 26E (1):
A person asks, directs, or requires either directly or indirectly, the driver of a heavy vehicle to do something the person knows, or ought reasonably to know, would have the effect of causing the driver of a heavy vehicle to speed or drive while impaired by fatigue or while in breach of the drivers work and rest options
A person asks, directs, or requires something of a party in the CoR and the person knows, or ought reasonably to know, that the direction or request would cause the driver of a heavy vehicle to exceed the speed limit, or drive while fatigued.
Under section 26E (2):
A person must not enter into an agreement or contract with the driver of a heavy vehicle, or a party in the CoR, to do something the person knows, or ought reasonably to know, would cause or encourage the driver of a heavy vehicle to exceed the speed limit or drive while impaired by fatigue.
To decide whether a person ought reasonably to have known something, a court may consider the person’s abilities, experience, expertise, knowledge, qualifications, and training.
What are the legal consequences?
Courts may impose significant penalties or orders on a person who breaches the HVNL section 26E.
What is a prohibited request or contract?
Prohibited requests or contracts put pressure on drivers due to competitive service demands. Examples of unreasonable requests and contracts include:
• Scheduling times which do not take into account delays caused by changing road or traffic conditions or accidents.
• Scheduling times which cannot be achieved, except by speeding or driving while fatigued.
• Maximising driving hours through incentive-based schemes and intense work practices.
• Penalty clauses for late delivery.
• Price pressures set out in unreasonable contract terms set through tendering cycles.
As a result, drivers are exposed to the risks of speed and fatigue to meet these unreasonable demands.
Speed pressures include:
• Tight or unrealistic delivery times or an unrealistic number of deliveries in a short window of time.
• Paying drivers per kilometre, rather than per hour, and fixing the kilometre rate at a level that incentivises drivers to speed or not take rest breaks.
• Pressuring drivers to take on more work that results in them having to speed to meet unrealistic work expectations and deadlines.
Fatigue pressures include:
• Rostering that does not allow drivers to comply with work and rest requirements.
• Scheduling or expectations that loading and unloading activities will be undertaken during rest breaks.
• Rostering which could result in fatigue accumulation in drivers, for example long working hours for consecutive days.
• Delivery windows with no flexibility that do not take into account delays.
How can I comply with HVNL section 26E?
You must not encourage, ask, direct, or require a heavy vehicle driver or a party in the CoR whether by agreement or contractual arrangement to engage in unsafe behaviours. You must ensure that you assess and understand the impact of any requests, directions, or contractual conditions.
Practical measures to avoid encouraging unsafe behaviours may include:
• Allowing sufficient time to safely complete the freight task.
• Allocating time to absorb delays.
• Providing operational staff with contact details to communicate any delays or other relevant information.
• Clearly outlining obligations and responsibilities of all parties.
• Including escalation processes when parties in the contract act contrary to agreed terms and conditions of the contract.
• Not penalising drivers for missing or being late for a booking time due to delays.
• Not providing incentives or penalties that may encourage a driver to speed or drive whilst fatigued.
• Not providing incentives or penalties that may encourage another party in the CoR to do something that would result in the driver speeding or driving while fatigued.