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SARTA doubles down on HVNL fatigue rule complaint

Shearer takes issue with s245 fatigue risks in accessing non-HVNL regions

 

The South Australian Road Transport Association (SARTA) has raised the spectre of interstate truck drivers stopped on desolate stretches of Western Australian and Northern Territory roads as they try to comply with differing fatigue laws.

SARTA sees a black-letter interpretation of the Heavy Vehicle National Law (HVNL) and Heavy Vehicle (Fatigue Management) Regulation fails to reflect geographic and regional realities of remote-area interstate trucking, particularly for drivers under Basic Fatigue Management (BFM) and standard hours, rather than Advanced Fatigue Management (AFM).

The comments come in response to the National Transport Commission’s (NTC’s) move to consult on section 245 (s245) of the HVNL after lobbying from SARTA that it says began 18 months ago, rather than last November as stated in the discussion paper.

SARTA questions the National Heavy Vehicle Regulator’s (NHVR’s) stance that there are “appropriate protections in the provision to avoid it becoming overly burdensome”, indicating that the industry fails to identify them.

“Every single BFM or standard hours driver who goes from the border into Perth believing they can do that 15.5 hours of work legally under the WA laws, just like a WA driver, is in serious trouble and so are their bosses and schedulers for organising that work,” SARTA director Steve Shearer says.

“The same applies to any driver who enters the NT and works under their far looser rules, believing it to be legal, then returns to South Australia, Queensland or New South Wales within seven days.

“The NHVR’s comment that ‘The NHVR is of the view that there is no reason why drivers could not comply with the regulatory requirements of participating and non-participating jurisdictions by adopting the more restrictive limits’ is also absurd and demonstrates an abject lack of real world knowledge about the task.

“If only they looked at a map they should know with schoolboy arithmetic that the 14 hours available to a BFM driver will not get them to a location that is 15.5 hours work time away from their start of work when they wake up after a seven hours sleep just inside the WA or NT borders.”

Shearer takes issue with the NHVR assertion that s245 was generally understood within the industry and is nonplussed by the statement that the “industry was consulted on the policy intent prior to the provision being created in 2004 and 2006”.

“The industry is not generally aware of this and has only begun to wake up to it once SARTA started pushing the issue,” Shearer emphasises.

“Even our brethren industry peak bodies . . . were all unaware of the issue and in fact were quite incredulous when SARTA advised them of the NHVR’s new position on this.”

SARTA presents the difficulties with s245 as it currently stands in four points, arguing:

the only legal way, under s245, to reach Perth (or Darwin) on one working shift from the border is to be AFM accredited and have at least 15.5 hrs Worktime per 24hrs available, as each of the AFM programs that I have written provide. A very small minority of the drivers and operators doing that work have AFM

every one of the many hundreds of drivers who do this work for operators who are accredited under BFM and every Standard Hrs driver who does it (yes there are some) is currently doing so in the misguided belief that the more flexible and generous WA or NT laws apply within those jurisdictions. They cannot legally reach Perth/Darwin in one working shift under Standard Hrs or BFM

so the effect of s245 of the HVNL currently would be to expose those drivers and their schedulers to enormous difficulties and legal consequences should the driver be involved in a fatality after they return from WA/NT and the authorities would throw the book at them and their Schedulers and businesses. This is because the drivers would be deemed to be seriously fatigued if they worked two 15.5hour days to and from Perth/Darwin, as they are doing

it get far worse as under the new Primary Duty provisions that will apply from October 1, there won’t need to be an accident at all, because the drivers, schedulers and owners and even the consignors/ees would all be heavily exposed as having patently unsafe practices and having failed to meet their new Primary Duties, simply by virtue of the work not being done under BFM/Standard Hours rules all the way to Perth/Darwin and back. 

The existence of s245 in the HVNL and the regulatory approach to it is beset with inconsistency and its value unsupported by evidence, SARTA argues.

“If the NHVR’s argument is that s245 is needed simply because WA and the NT are not participants under the HVNL, then why are all other operational and safety related provisions of the HVNL also applied to all time spent within WA and NT?” Shearer says. 

“The truth is that s245 was included in the HVNL because it was in the ‘model law’ and within the initial SA fatigue laws in 2008.

“It was never enforced, however, because as SAPOL [South Australia Police] acknowledged in my office at the time, they can’t impose SA law on time spent within another state because the WA government of the day chose not to enact an enabling provision within WA.” 

Meanwhile, the National Road Transport Association (NatRoad) has welcomed the NTC’s focus on two-up and solo driving time counting rules under the HVNL.

“NatRoad is pleased the NTC has taken up our concerns regarding the lack of clarity in the Heavy Vehicle National Law when transitioning between two-up and solo driving,” a spokesperson tells ATN.

“This is just one example of the complexity of the highly prescriptive fatigue rules which make it difficult for operators to comply.

“While we need a review of the entire fatigue regime, we look forward to a workable solution how work and rest hours should be enforced.”

 

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