LEGAL OPINION: What counts as work time? Is it more than just the hours spent driving the vehicle?
A recent conversation has left me thinking about how important it is to be precise when discussing driver fatigue laws.
I was speaking with an owner-driver about his work diary. As we chatted, we both slipped into the casual short hand of discussing “how many hours did you drive?”. Towards the end of the conversation, the driver rightfully pointed out that really, the question isn’t how long he was driving or not driving, but for how long he was working and resting.
For experienced people in the industry, this may be obvious. But, it made me realise that sometimes we assume that we are all on the same page about what a term means and so don’t discuss it more deeply. It’s important to take a moment every so often to check that we’ve got things right and that the law hasn’t changed.
So, I thought it was worthwhile having a good look at what “work time” actually means under the Heavy Vehicle National Law (HVNL).
My starting point (as it is for most things fatigue related) was the front of the Work Diary. It explains that “work time is not just driving, it means driving AND any task relating to the use of a vehicle”. It also has some examples of things that count as work time. It’s a good starting point, but it isn’t the whole picture. It’s important to go back to what the law itself says.
Legal definition
The legal definition of ‘work’ for the purposes of driver fatigue comes from the HVNL. It means doing any of the following things:
• Driving a fatigue-regulated heavy vehicle
• Instructing another person to drive a fatigue-regulated heavy vehicle, or supervising their driving
• Performing another task related to the use of a fatigue-regulated heavy vehicle (e.g., loading, inspecting, repairing, marketing and recording information in your work diary)
• Occupying the driver’s seat of a fatigue-regulated heavy vehicle while the engine is running.
It is worth noting that this definition covers a number of time consuming tasks that drivers might not automatically think of as work time:
1. You can be ‘working’ even though you’re nowhere near a truck. The definition is so broad that it includes things like marketing activities. So the time you spend canvassing for orders counts as ‘work time’ for the driver fatigue laws.
2. Time spent with an RMS or police officer can count as work. This is addressed specifically on page 34 of the Work Diary. The Diary says that whether this time counts as work “will depend on whether you are required to interact with the authorised officer or attend to your vehicle”. Essentially, if you are just waiting then you can count the time as rest, but if you are having to answer questions or inspect the vehicle with
an authorised officer, then that is work. So being stopped at an inspection station can mean having to take additional breaks.
3. Filling out your work diary. Filling out your work diary counts as ‘work time’. The same is true of any document that you are legally required to complete under the HVNL. So don’t forget to allow enough time before and after each of your breaks to complete the diary.
4. Inspecting your vehicle before you leave the base and after each rest stop. One of the fraught elements of the HVNL is that the driver can be held responsible for anything amiss with a vehicle or load, including obstructions over number plates, unrestrained items, and packing that leads to breaches of mass and dimension requirements. For this reason, it’s prudent to give your vehicle a good check over before leaving on a job, as well as periodically along the way. This time needs to be recorded as work in the diary.
5. Loading and unloading. This one could be particularly significant for drivers in industries where loading and unloading takes a long time and they have to supervise it. For example, if a driver participates in or even supervises the unloading of their vehicle over the period of an hour, then that hour counts as work, even though they aren’t driving.
Counting the time
Perhaps a helpful way to think about it is to focus on the rest instead of the work, as it might be easier to define. It seems that ‘rest’ covers any time when you are completely disengaged from your work and vehicle; the idea being that this is not adding to fatigue.
The Work Dairy says: “If you are unsure, it is usually in your best interests to count the time spent as work.” From a legal perspective this makes a lot of sense, but I understand that out in the industry this can mean the difference between getting a job and losing it.
*Sarah Marinovic is a principal solicitor at Ainsley Law – a firm dedicated to traffic and heavy vehicle law. She has focussed on this expertise for over a decade, having started her career prosecuting for the RMS, and then using that experience as a defence lawyer helping professional drivers and truck owners.