Truck driver loses SA Supreme Court appeal but judge notes shortfall that can help cost thousands
A truck driver’s appeal on a work hours breach has failed but the South Australian Supreme Court judge hearing it has critiqued paper work diaries that fail to emphasise when relevant counted hours start.
It is an issue, related to section 250(1) of the Heavy Vehicle National Law (HVNL) that have proven challenging for magistrates in other cases.
In the case Ballantyne v National Heavy Vehicle Regulator, the latter now having authority in SA, the driver had been found to have breached his 12 alotted work hours by one and three quarter hours.
More than 13 and a half hours work time in that period is referred to as a ‘critical risk breach’, the highest of the four ascending levels of breach, which now carries a maximum fine of $16,510.
“The prosecution was justified in selecting the end of the particular major rest break as being the start of a relevant 24 hour period and that the appellant recorded 13 and three quarter hours during that 24 hour period. That is sufficient to prove the charged offence,” justice David Peek’s finding reads.
But he adds: “Although the work diaries issued to truck drivers are not invalid, such work diaries could be more ‘user friendly’. The most obvious improvement might be to expressly state, loudly and clearly, that following the end of a major rest break, there can be two overlapping 24 hour periods each of which might potentially lead to a prosecution.”
Read the latest industry broadside on the HVNL, here
In comments that will resonate with critics of the present HVNL, Peek has sympathy with other magistrates ruling in similar cases – Police v Barnes in SA and Roads & Traffic Authority of NSW v Trinci – where the position the drivers involved find themselves in is put into sharp relief.
“I should add that the appellant submits that the Act itself is very long, complex and hard for ordinary people to read or understand; and also that the examples given in the log books issued to truck drivers are not as clear as they might be,” he writes.
“I must say that he does have something of a point here, although I stress that I do not consider that the log books or the examples therein are in any way invalid.
“However, I do note that in both of the cases of Barnes and also Trinci, to which I have referred, the Magistrate at first instance largely agreed with the truck driver’s interpretation and acquitted the truck driver, but each decision was overturned on appeal to the Supreme Court.”
Truck drivers’ vulnerability here that could be ameliorated by emphasis on the work diaries themselves – “particularly having regard to the audience to which they are addressed” – relates to overlapping 24-hour periods.
“The first such period is the old 24 hour period that was running prior to the beginning of the major rest break (if it did not conclude during the course of that major rest break),” Peek writes.
“The second period running would be the new 24 hour period that commences at the end of that major rest break. The trap for the driver in such circumstances is that when he commences the new 24 hour period following the major rest break he may be concentrating only on that new forthcoming 24 hour period and not appreciate fully that for some hours the old period may also still be running.
“The result may be in some cases that in working for the first few hours of the new 24 hour period those hours may result in his quota for the old 24 hour period being exceeded, even though he may not exceed his quota for the new 24 hour period. That is only one example that seems very apparent to me; there may well be others.
“However, none of this can alter the fact that in the present case no ground of appeal is established and I therefore must dismiss the appeal and I do so.”
The NHVR insists truck drivers do have avenues to inform themselves on such issues.
“The NHVR consistently publishes information about accurately counting time on our website, in our newsletters and in dedicated factsheets,” a spokesperson tells ATN.
“We encourage drivers and operators to contribute to the review of the HVNL, with the fatigue issues paper now open for comment.
“The NTC has recently published a quick survey to make it easier for drivers to contribute.”