Note: This information is intended as general guidance only and does not constitute legal advice. We encourage you to obtain independent advice about your legal obligations. If you have any feedback on the information provided, please contact us at info@nhvr.gov.au

This regulatory advice provides guidance on fatigue in the heavy vehicle transport industry and outlines obligations under the Heavy Vehicle National Law (HVNL).

Who is this advice for?

This regulatory advice is intended for:

• parties in the Chain of Responsibility (CoR), especially employers and operators
• heavy vehicle drivers.

What are my legal obligations?

Drivers in the heavy vehicle transport industry who are affected by fatigue present a safety risk to themselves and to the public.

This is an obligation to eliminate or minimise public risks, and a prohibition against directly or indirectly causing or encouraging a driver or another person, including a party in the CoR, to contravene the HVNL. CoR parties and their executives, should be aware that they remain a CoR party even when their transport activities are contracted, or subcontracted, to another party.

What are the legal consequences?

If your business is a party in the CoR and it fails to eliminate or minimise public risks so far as is reasonably practicable, then it may be in breach of its primary duty. If a breach is proven, the law provides sanctions against a company and its executives, ranging from education and formal warnings for minor offences, to improvement notices and prosecution for more serious offences.

Why is this important to my business?

It is well known that fatigue can impair a driver’s ability to maintain proper control of a heavy vehicle. Fatigue reduces alertness, slows reaction times, and increases the likelihood of a heavy vehicle driver being involved in a crash, especially when driving:

• between 12am and 6am
• repetitive routes
• on long stretches of road with higher speed limits where minimum driver input is required.

When assessing a driver’s ‘fitness to drive’, it is important that any assessment considers external factors that may influence the driver's fatigue risk, and that it is not limited only to compliance with regulated work and rest hours.

A holistic approach to managing fatigue in the heavy vehicle transport industry will contribute to the safety of heavy vehicle drivers and other road users, prevention of damage to infrastructure, and compliance with the HVNL.

What are the hazards and risks?

Hazards associated with fatigue may include:

• illnesses (such as diabetes)
• sleep disorders (such as insomnia and sleep apnea)
• medications (including over-the-counter and prescription medications)
• cabin design (such as inadequate sleeping space and blocking out of light)
• outside-of-work activities (such as family life, social events and other physical activities)
• poor diet (such as consuming high-sugar foods and drinks and too much caffeine)
• lifestyle choices (such as alcohol and drugs)
• inconsistent rostering/working nights
• long work hours
• drivers working multiple jobs - day/night driving (such as working a secondary job during business hours then driving at night)
• minimal interaction with other people
• ‘pushing through’ attitude or fear of repercussion for taking additional rest.

The potential safety risks resulting from these hazards may include:

• serious or fatal injury to heavy vehicle drivers and other road users
• damage to public and private infrastructure.

There are also potential risks to business, including:

• financial risks because of disruption to business operations
• risks to reputation due to the negative impacts of poor risk management.
• an increase in WorkCover claims.

Why is it important to manage the hazards and risks?

By appropriately managing these safety risks and hazards, CoR parties can:

• prevent serious and fatal injury to heavy vehicle drivers and other road users
• prevent damage to public and private infrastructure
• avoid financial losses due to delays, impacts on scheduling, and damage to equipment or infrastructure
• avoid regulatory and other legal sanctions
• enhance their reputation within the industry, and position themselves as a business and employer of choice
• improve retention of competent, experienced staff.

What are the signs of fatigue?

Physical, mental and behavioural signs of fatigue may include:

• an inability to concentrate, slow reaction times or a lack of alertness
• changing position frequently, opening the window or turning up the music (restlessness)
• making more mistakes than usual
• difficulty keeping eyes open, drowsiness, microsleeps or falling asleep
• not feeling refreshed after a rest/sleep
• excessive head nodding, yawning or blurred vision
• mood swings/changes.

Driving behaviours that could be signs of fatigue include:

• a near miss or accident
• not keeping in a single lane/swerving
• not maintaining a constant speed
• overshooting a road sign or traffic line
• poor gear changes or delayed braking
• not remembering a portion of the journey.

How do I manage the hazards and risks?

One of the most effective ways for CoR parties in the heavy vehicle supply chain to manage the safety of their transport activities is to adopt and actively use a Safety Management System (SMS) as part of their everyday business.

An SMS is a systematic approach to managing safety which, once implemented, will help CoR parties identify how to ensure the safety of their transport activities, so far as is reasonably practicable.

As part of the risk management process, CoR parties should:

• identify hazards associated with their transport activities
• assess the risks associated with those hazards
• identify and implement control measures to eliminate or minimise those risks
• review the effectiveness of control measures, either periodically or after any incident, to ensure they remain effective.

Control measures may include:

• adopting and actively using an SMS as part of a risk management process. This systematic approach to managing safety can help identify how to ensure the safety of transport activities, so far as is reasonably practicable
• identifying the hazards associated with fatigue, assessing the risks associated with those hazards, and then identifying and implementing control measures to eliminate or minimise those risks
• reviewing the effectiveness of measures, either periodically or after any incident, to ensure they remain effective.

CoR parties, such as employers and operators, may consider specific control measures, such as:

• implementing policies and procedures regarding fatigue and journey planning
• having regular discussions with drivers about fatigue and work/outside-of-work demands, especially any secondary employment the driver may be undertaking
• include contractual requirements for workers to disclose secondary employment 
• implementing scheduling and rosters that consider fatigue risk
• providing education to drivers and other workers about causes of fatigue
• encouraging discussion about any personal factors that could influence fatigue
• encouraging self-reporting of fatigue events and near misses
• conducting observational monitoring
• implementing in-vehicle fatigue detection technology
• conducting welfare calls to heavy vehicle drivers, especially during night-time driving
• investigating any fatigue-related incidents
• prioritising long rest breaks in hotels/motels or other out-of-vehicle accommodation
• ensuring in-vehicle facilities to get adequate sleep – such as, appropriate cabin space, climate control, ventilation and a quality mattress
• helping heavy vehicle drivers identify appropriate rest stops on journey routes
• conducting fatigue-specific medical checks for heavy vehicle drivers as part of employment requirements
• empowering drivers to rest if they need to
• having a ‘safety first’ attitude to fatigue
• providing drivers with ‘fatigue days’, or the opportunity to call in fatigued instead of calling in sick, and reviewing duties and schedules that show a pattern of fatigue
• recognising that non-driving work will also add to fatigue.

Drivers can implement control measures such as:

• ensuring they have had enough sleep before driving a heavy vehicle (most people require 7 to 9 continuous hours of sleep per day)
• pre-planning their journey and taking a rest break every 2 hours, or when they feel fatigued
• educating themselves about fatigue and the early telltale signs
• being aware of, and reporting to their supervisor, any medications they are taking, or illnesses or conditions they have, that could contribute to fatigue
• reporting to their supervisor any secondary employment they are undertaking that may impact on fatigue
• being aware of diet and lifestyle choices, and other personal factors, that could contribute to fatigue
• not attempting to ‘push through’ until they reach their destination, despite showing signs of fatigue.

Resources

Master Code

Guidance and direction on how to effectively introduce a risk management process within your business can be found in Section 3 of the Master Code.

Safety Management System (SMS)

Management of safety risks can be more effective with the adoption, development and active use of an SMS.

An SMS is a systematic approach to managing safety – including the necessary organisational structures, accountabilities, policies and procedures – which is integrated throughout the business wherever possible.

An SMS can help you:

• provide a safer work environment for your employees, customers, contractors and the public
• manage your safety duties under the HVNL
• demonstrate your ability to manage risk and ensure safety
• become an employer of choice and preferred supplier to customers
• make informed decisions and increase efficiency
• allocate resources to the most critical areas that have an impact on safety
• reduce costs associated with incidents and accidents.

Regardless of the size of your business, an effective SMS can help you have an appropriate safety focus and comply with your duty to ensure the safety of your transport activities, so far as is reasonably practicable.

Targeted guidance, tools and information about the development and implementation of an SMS is available in the 9 Step SMS Roadmap.

Understand the HVNL and your primary duty

Under the HVNL section 26C, each party in the CoR has a primary duty to ensure the safety of its transport activities, so far as is reasonably practicable. This duty includes an obligation to eliminate or minimise public risks and a prohibition against directly or indirectly causing or encouraging a driver or another person, including a party in the CoR, to contravene the HVNL.

Transport activities

Transport activities include all the activities associated with the use of a heavy vehicle on a road. These activities include safety systems, business processes, such as contract negotiation, communication and decision-making, as well as the activities normally associated with the transport and logistics sector, such as training, scheduling, route planning, managing premises, selecting and maintaining vehicles, packing, and loading.

So far as is reasonably practicable

So far as is ‘reasonably practicable’ means an action that can reasonably be done in relation to the duty, considering relevant matters such as:

• the likelihood of a safety risk or damage to road infrastructure
• the harm that could result from the risk or damage
• what the person knows, or ought reasonably to know, about the risk or damage
• what the person knows, or ought reasonably to know, about the ways of removing or minimising the risk, or preventing or minimising the damage
• the availability and suitability of those ways
• the cost associated with the available ways, including whether the cost is grossly disproportionate to the likelihood of the risk or damage.

More information can be found in Regulatory Advice - Reasonably practicable.

Executives of businesses that are parties in the CoR have a distinct duty under the HVNL section 26D HVNL to exercise due diligence to ensure the business complies with its duty to ensure the safety of its transport activities.

Due diligence

Exercising due diligence includes taking reasonable steps to:

• acquire and maintain knowledge about conducting transport activities safely
• understand the nature of the business’s transport activities, including the hazards and risks associated with those activities
• ensure the business has, and uses, appropriate resources to eliminate or minimise the hazards and risks associated with its transport activities
• ensure the business has, and uses, processes to eliminate or minimise the hazards and risks associated with its transport activities, and that information about hazards, risks and incidents is received, considered and responded to in a timely way.

Examples of executive due diligence activities include:

• collecting information about incident rates to see if the safety management plan is working
• participating in industry-led forums and safety seminars
• ensuring work procedures are being followed and result in improvements in safety
• ensuring safety incidents are responded to and investigated
• implementing learnings from the investigation of safety incidents.

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