Division 2 Duties relating to fatigue

Subdivision 1 What is fatigue

43   What is “fatigue”

(1)  Fatigue includes (but is not limited to):

(a)  feeling sleepy, and

(b)  feeling physically or mentally tired, weary or drowsy, and

(c)  feeling exhausted or lacking energy, and

(d)  behaving in a way that is consistent with paragraph (a), (b) or (c).

(2)  When deciding whether a driver is fatigued, a court may take into account anything it considers is relevant, including (but not limited to) the following:

(a)  what is commonly understood as being fatigued,

(b)  the causes of fatigue,

(c)  the signs of fatigue,

(d)  the body of fatigue knowledge.

(3)  A cause of fatigue is any factor that causes or contributes to a person’s fatigue while driving a regulated heavy vehicle on a road (whether or not the cause arises while the person is at work).

Note. Examples of causes of fatigue:

•  physical or mental exertion

•  long periods of time awake

•  not enough sleep or not enough restorative sleep

•  not enough rest breaks

•  a person’s circadian rhythm (ie the “body clock”)

•  environmental stress (eg heat, noise, vibrations)

•  personal health

(4)  A sign of fatigue is a sign that a person was, is, or will be fatigued while driving a regulated heavy vehicle on a road (whether the sign manifests itself before, during or after work).

Note. Examples of signs of fatigue:

•  a lack of alertness

•  an inability to concentrate

•  a reduced ability to recognise or respond to external stimuli

•  poor judgement or memory

•  making more mistakes than usual

•  drowsiness, or falling asleep, at work (including micro sleeps)

•  finding it difficult to keep the eyes open

•  needing more frequent naps than usual

•  not feeling refreshed after sleep

•  excessive head nodding or yawning

•  blurred vision

•  mood changes, increased irritability or other changes to the person’s mental health

•  changes to the person’s health or fitness

(5)  The body of fatigue knowledge includes any accreditation scheme, scientific knowledge or expert opinion, guidelines, standards or other knowledge that is relevant to preventing or managing the exposure to risk of fatigue, either at a workplace or on a road.

44   What is “impaired by fatigue”

(1)  A driver is impaired by fatigue if the driver’s ability to drive a vehicle safely is affected by fatigue.

(2)  When deciding whether a driver was impaired by fatigue, a court may take into account anything it considers is relevant, including (but not limited to) the following:

(a)  any relevant cause of fatigue or sign of fatigue that was evident, and the degree to which it may indicate that the driver was impaired by fatigue,

(b)  any behaviour of the driver that may have resulted from being impaired by fatigue,

Note. Examples:

•  the circumstances of any incident, crash or near miss

•  poor driving judgement

•  inattentive driving (eg drifting into other lanes or not changing gears smoothly)

(c)  the nature and extent of any physical or mental exertion by the driver,

(d)  whether the driver was in breach of his or her work and rest hours.

(3)  A court may consider a driver to be impaired by fatigue even if the driver has complied with any requirements under this Part (for example, the standard hours) or under any other legislation.

Subdivision 2 Duties to avoid and prevent fatigue

45   Driver’s duty to avoid driver fatigue

(1)  A person must not drive a regulated heavy vehicle on a road or road related area while he or she is impaired by fatigue.

Maximum penalty: 20 penalty units.

(2)  A person accused of an offence under this clause does not have the benefit of the mistake of fact defence.

46   Duty of parties in the chain of responsibility to prevent driver fatigue

(1)  A party in the chain of responsibility in relation to a regulated heavy vehicle must take all reasonable steps to ensure that a person does not drive the vehicle on a road or road related area while the person is impaired by fatigue.

Maximum penalty:

(a)  in the case of an individual—25 penalty units (in the case of a first offence) or 50 penalty units (in the case of a second or subsequent offence), and

(b)  in the case of a corporation—125 penalty units (in the case of a first offence) or 250 penalty units (in the case of a second or subsequent offence).

(2)  A person accused of an offence under this clause does not have the benefit of the mistake of fact defence.

Subdivision 3 Additional duties on certain parties in the chain of responsibility

47   Intention irrelevant in determining causation

For the purposes of this Subdivision, a person can cause something to happen even though the person had no intention of causing that thing to happen.

48   Cause includes “contribute to causing” and “encourage”

For the purposes of this Subdivision, a reference to causing a thing includes a reference to contributing to causing the thing, and to encouraging the thing.

49   Duties on employers, prime contractors and operators

(1)  This clause applies to:

(a)  the employer of an employed driver of a regulated heavy vehicle, and

(b)  the prime contractor of a self-employed driver of a regulated heavy vehicle, and

(c)  the operator of the regulated heavy vehicle if the driver is to make a journey for the operator.

(2)  The employer, prime contractor and operator each must take all reasonable steps to ensure that the employer’s, prime contractor’s or operator’s business practices will not cause, by act or omission, the driver:

(a)  to drive on a road or road related area while impaired by fatigue, or

(b)  to drive while in breach of his or her work and rest hours option, or

(c)  to drive in breach of another law in order to avoid driving while impaired by fatigue or while in breach of his or her work and rest hours option.

Maximum penalty:

(a)  in the case of an individual—20 penalty units (in the case of a first offence) or 40 penalty units (in the case of a second or subsequent offence), and

(b)  in the case of a corporation—100 penalty units (in the case of a first offence) or 200 penalty units (in the case of a second or subsequent offence).

Note. Examples of business practices that may cause a driver to drive while impaired by fatigue by omission:

•  failing to provide for remuneration for time spent queuing,

•  failing to provide rest breaks in a driver’s schedule,

•  failing to provide for contingency plans for unexpected traffic delays,

•  failing to provide for loading or unloading in schedule times.

(3)  The employer must not cause the driver to drive the vehicle unless:

(a)  the employer has complied with subclause (2), and

(b)  the employer, after making reasonable inquiries, is satisfied that the scheduler has complied with clause 50.

Maximum penalty:

(a)  in the case of an individual—15 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence), and

(b)  in the case of a corporation—75 penalty units (in the case of a first offence) or 150 penalty units (in the case of a second or subsequent offence).

(4)  The prime contractor and operator each must not cause the driver to drive the vehicle, or enter into a contract or agreement with the driver to that effect, unless:

(a)  the prime contractor or operator has complied with subclause (2), and

(b)  the prime contractor or operator, after making reasonable inquiries, is satisfied that the scheduler has complied with 50.

Maximum penalty:

(a)  in the case of an individual—15 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence), and

(b)  in the case of a corporation—75 penalty units (in the case of a first offence) or 150 penalty units (in the case of a second or subsequent offence).

(5)  A person accused of an offence under this clause does not have the benefit of the mistake of fact defence.

(6)  In this clause, business practices of an employer, prime contractor or operator, means the practices of the employer, prime contractor or operator in running the business, and includes:

(a)  the operating policies and procedures of the business, and

(b)  the human resource and contract management arrangements of the business (including the method by which driver remuneration is calculated), and

(c)  arrangements for managing safety.

50   Duties of schedulers

(1)  This clause applies to the scheduler of:

(a)  a regulated heavy vehicle, or

(b)  a driver of a regulated heavy vehicle.

(2)  The scheduler must take all reasonable steps to ensure that a driver’s schedule for driving the vehicle will not cause, by act or omission, the driver:

(a)  to drive on a road or road related area while impaired by fatigue, or

(b)  to drive while in breach of his or her work and rest hours option, or

(c)  to drive in breach of another law in order to avoid driving while impaired by fatigue or while in breach of his or her work and rest hours option.

Maximum penalty:

(a)  in the case of an individual—20 penalty units (in the case of a first offence) or 40 penalty units (in the case of a second or subsequent offence), and

(b)  in the case of a corporation—100 penalty units (in the case of a first offence) or 200 penalty units (in the case of a second or subsequent offence).

(3)  The scheduler must not cause the driver to drive the vehicle unless:

(a)  the scheduler has complied with subclause (2), and

(b)  the driver’s schedule for driving the vehicle allows for:

(i)  the driver to take rest breaks in accordance with his or her work and rest hours option, and

(ii)  traffic conditions and other delays that could reasonably be expected.

Maximum penalty:

(a)  in the case of an individual—15 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence), and

(b)  in the case of a corporation—75 penalty units (in the case of a first offence) or 150 penalty units (in the case of a second or subsequent offence).

(4)  A person accused of an offence under this clause does not have the benefit of the mistake of fact defence.

51   Duties on consignors and consignees

(1)  This clause applies to:

(a)  the consignor of goods for transport by a regulated heavy vehicle, and

(b)  the consignee of goods for transport by a regulated heavy vehicle.

(2)  The consignor and consignee each must take all reasonable steps to ensure that the terms of consignment (such as delivery times) will not cause, by act or omission, the driver:

(a)  to drive on a road or road related area while impaired by fatigue, or

(b)  to drive while in breach of his or her work and rest hours option, or

(c)  to drive in breach of another law in order to avoid driving while impaired by fatigue or while in breach of his or her work and rest hours option.

Maximum penalty:

(a)  in the case of an individual—20 penalty units (in the case of a first offence) or 40 penalty units (in the case of a second or subsequent offence), and

(b)  in the case of a corporation—100 penalty units (in the case of a first offence) or 200 penalty units (in the case of a second or subsequent offence).

(3)  The consignor and consignee each must take all reasonable steps to ensure that the terms of consignment (such as delivery times) will not cause the employer of an employed driver, prime contractor of a self-employed driver or operator of the regulated heavy vehicle by act or omission to cause the driver:

(a)  to drive on a road or road related area while impaired by fatigue, or

(b)  to drive while in breach of his or her work and rest hours option, or

(c)  to drive in breach of another law in order to avoid driving while impaired by fatigue or while in breach of his or her work and rest hours option.

Maximum penalty:

(a)  in the case of an individual—20 penalty units (in the case of a first offence) or 40 penalty units (in the case of a second or subsequent offence), and

(b)  in the case of a corporation—100 penalty units (in the case of a first offence) or 200 penalty units (in the case of a second or subsequent offence).

(4)  The consignor and consignee each must not cause the driver to drive the vehicle, or enter into a contract or agreement to that effect, unless:

(a)  the consignor or consignee has complied with subclause (2) and (3), and

(b)  in the case of an employed driver—the consignor or consignee, after making reasonable inquiries, is satisfied that:

(i)  the driver’s employer and the operator of the driver’s vehicle have each complied with clause 49, and

(ii)  the scheduler has complied with clause 50, and

(c)  in the case of a self-employed driver—the consignor or consignee, after making reasonable inquiries, is satisfied that:

(i)  if the driver has a prime contractor—the prime contractor of the driver has complied with clause 49, and

(ii)  the scheduler has complied with clause 50.

Maximum penalty:

(a)  in the case of an individual—15 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence), and

(b)  in the case of a corporation—75 penalty units (in the case of a first offence) or 150 penalty units (in the case of a second or subsequent offence).

(5)  The consignor or consignee must not make a demand that affects, or that may affect, a time in a schedule for the transport of the consigned goods and that may cause the driver:

(a)  to drive on a road or road related area while impaired by fatigue, or

(b)  to drive while in breach of the driver’s work and rest hours option, or

(c)  to drive while in breach of another law in order to avoid driving while impaired by fatigue or while in breach of the driver’s work and rest hours option.

Maximum penalty:

(a)  in the case of an individual—20 penalty units (in the case of a first offence) or 40 penalty units (in the case of a second or subsequent offence), and

(b)  in the case of a corporation—100 penalty units (in the case of a first offence) or 200 penalty units (in the case of a second or subsequent offence).

(6)  Subclause (5) does not apply if the consignor or consignee, before making the demand:

(a)  complies with subclauses (2) and (3), and

(b)  is satisfied, after making reasonable inquiries, that the making of the demand will not cause or permit a person to contravene clause 50.

(7)  A person accused of an offence under this clause does not have the benefit of the mistake of fact defence.

(8)  In this clause, terms of consignment includes (but is not limited to):

(a)  terms that are expressed, implied or established by custom or practice, and

(b)  terms relating to pick-up or delivery times or driving or delivery schedules.

52   Duties of loading managers

(1)  A loading manager must take all reasonable steps to ensure that the arrangements for loading, unloading and waiting time of regulated heavy vehicles at the loading manager’s premises will not cause, by act or omission, a driver of a regulated heavy vehicle:

(a)  to drive on a road or road related area while impaired by fatigue, or

(b)  to drive while in breach of his or her work and rest hours option, or

(c)  to drive in breach of another law in order to avoid driving while impaired by fatigue or while in breach of his or her work and rest hours option.

Maximum penalty:

(a)  in the case of an individual—20 penalty units (in the case of a first offence) or 40 penalty units (in the case of a second or subsequent offence), and

(b)  in the case of a corporation—100 penalty units (in the case of a first offence) or 200 penalty units (in the case of a second or subsequent offence).

(2)  If the loading manager or a person acting under his or her supervision or control:

(a)  has advised the driver, either directly or indirectly, of when the loading, unloading or waiting time of the vehicle is to start, and the loading manager or person becomes aware that the loading, unloading or waiting time will, or is likely to, start more than 30 minutes late, or

(b)  has advised the driver, either directly or indirectly, of when the loading, unloading or waiting time of the vehicle is to finish, and the loading manager or person becomes aware that the loading, unloading or waiting time will, or is likely to, finish more than 30 minutes late, or

(c)  is unable to advise the driver of when the loading, unloading or waiting time of the vehicle is to start, or

(d)  is unable to advise the driver of when the loading, unloading or waiting time of the vehicle is to finish,

      the loading manager must take all reasonable steps to ensure that the driver is able to take rest while waiting for the vehicle to be loaded or unloaded.

Maximum penalty:

(a)  in the case of an individual—15 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence), and

(b)  in the case of a corporation—75 penalty units (in the case of a first offence) or 150 penalty units (in the case of a second or subsequent offence).

(3)  A person accused of an offence under this clause does not have the benefit of the mistake of fact defence.

53   Duty to assess and manage fatigue of drivers

(1)  This clause applies to:

(a)  the employer of an employed driver of a regulated heavy vehicle, and

(b)  the prime contractor of a self-employed driver of a regulated heavy vehicle, and

(c)  the operator of the regulated heavy vehicle if the driver is to make a journey for the operator, and

(d)  the scheduler of:

(i)  a regulated heavy vehicle, or

(ii)  a driver of a regulated heavy vehicle, and

(e)  the consignor of goods for transport by a regulated heavy vehicle, who carries on business of which a substantial part is prescribed business, and

(f)  the consignee of goods for transport by a regulated heavy vehicle, who carries on business of which a substantial part is prescribed business, and

(g)  the loading manager of goods for transport by a regulated heavy vehicle, and

(h)  the loader of goods for transport by a regulated heavy vehicle, who carries on business of which a substantial part is prescribed business, and

(i)  the unloader for transport by a regulated heavy vehicle, who carries on business of which a substantial part is prescribed business.

(2)  A person to whom this clause applies must:

(a)  identify and assess the aspects of the activities of the person, and the driver, that may lead to a contravention of a fatigue management requirement by the driver, and

(b)  for each aspect identified and assessed under paragraph (a), identify and assess:

(i)  the risk of the aspect leading to a contravention of a fatigue management requirement by the driver, and

(ii)  if there is a risk of the aspect leading to a contravention of a fatigue management requirement by the driver—the measures the person may take to eliminate the risk or, if it is not reasonably practicable to eliminate the risk, to control the risk, and

(c)  carry out the identification and assessment referred to in paragraphs (a) and (b):

(i)  at least annually, and

(ii)  after each event that indicated the way the activities of the person or driver have led, or may lead, to a contravention of a fatigue management requirement by the driver, and

(d)  take the measures identified and assessed under paragraph (b) (ii), and

(e)  document the actions taken under paragraphs (a)–(d) and retain that documentation for at least 3 years.

Maximum penalty:

(a)  in the case of an individual—20 penalty units (in the case of a first offence) or 40 penalty units (in the case of a second or subsequent offence), and

(b)  in the case of a corporation—100 penalty units (in the case of a first offence) or 200 penalty units (in the case of a second or subsequent offence).

(3)  It is a defence to any proceedings against a person for an offence against subclause (2) if the person proves that:

(a)  it was not reasonably practicable for the person to comply with that subclause, or

(b)  the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.

Subdivision 4 Certain requests, contracts etc prohibited

54   Certain requests etc prohibited

A person must not ask, direct or require (directly or indirectly) a driver or a party in the chain of responsibility to do something that the person knows, or reasonably ought to know, would have the effect of causing the driver:

(a)  to drive on a road or road related area while impaired by fatigue, or

(b)  to drive while in breach of his or her work and rest hours option, or

(c)  to drive in breach of another law in order to avoid driving while impaired by fatigue or while in breach of his or her work and rest hours option.

Note. Example of a requirement that contravenes this clause—a requirement that the driver complete a journey in a time that the person knows or reasonably ought to know cannot be complied with unless the driver commits a speeding offence or does not take all the rest breaks that he or she is required to take.

Maximum penalty:

(a)  in the case of an individual—25 penalty units (in the case of a first offence) or 50 penalty units (in the case of a second or subsequent offence), and

(b)  in the case of a corporation—125 penalty units (in the case of a first offence) or 250 penalty units (in the case of a second or subsequent offence).

55   Certain contracts etc prohibited

(1)  A person must not enter into a contract or agreement with a driver or with a party in the chain of responsibility that the person knows, or reasonably ought to know, would have the effect of causing a driver:

(a)  to drive on a road or road related area while impaired by fatigue, or

(b)  to drive while in breach of his or her work and rest hours option, or

(c)  to drive in breach of another law in order to avoid driving while impaired by fatigue or while in breach of his or her work and rest hours option.

Maximum penalty:

(a)  in the case of an individual—25 penalty units (in the case of a first offence) or 50 penalty units (in the case of a second or subsequent offence), and

(b)  in the case of a corporation—125 penalty units (in the case of a first offence) or 250 penalty units (in the case of a second or subsequent offence).

(2)  A person must not enter into a contract or agreement with a driver or with a party in the chain of responsibility that the person knows, or reasonably ought to know, would encourage or provide an incentive for a party in the chain of responsibility to cause a driver:

(a)  to drive on a road or road related area while impaired by fatigue, or

(b)  to drive while in breach of his or her work and rest hours option, or

(c)  to drive in breach of another law in order to avoid driving while impaired by fatigue or while in breach of his or her work and rest hours option.

Maximum penalty:

(a)  in the case of an individual—25 penalty units (in the case of a first offence) or 50 penalty units (in the case of a second or subsequent offence), and

(b)  in the case of a corporation—125 penalty units (in the case of a first offence) or 250 penalty units (in the case of a second or subsequent offence).