In the recent case of Transport for New South Wales v De Paoli Transport Pty Ltd (2002), De Paoli Transport was fined $180,000 and its schedulers each $15,000 for breaching their primary duty under the Heavy Vehicle National Law (HVNL).
The National Heavy Vehicle Regulator (NHVR) have recently released their “case learnings” that provide a summary of what they consider to be the key takeaways from the case. These takeaways provide important guidance to schedulers, operators and employers on how to comply with their obligations under the HVNL.
A summary of the NHVR’s case learning is below.
Quick recap on the facts
De Paoli Transport was a line-haul trucking company that operated 32 fatigue-related heavy vehicles. The two individuals charged, one of whom was the sole director and shareholder of the company, acted as schedulers for the company. It was argued that the company failed to take reasonable steps in relation to five aspects of its heavy vehicle operations:
- licencing of its drivers
- speeding by drivers
- fatigue of drivers
- reporting of the receipt of infringement notices by company drivers
- training of drivers in respect of the above areas.
The two schedulers failed to adequately manage the fatigue of their drivers as required by their role.
Investigations into the company
Investigations conducted by the NHVR revealed that the company:
- had no procedures in place to assess a drivers’ fitness to drive despite having policies for fatigue management
- installed cameras in its heavy vehicles to monitor driver fatigue but failed to monitor it
- had a drug and alcohol policy but did not carry out any drug or alcohol testing on drivers
- had no policies or procedures related to speed and did not monitor speeding of drivers in heavy vehicles despite having GPS technology that could monitor for speeding
- failed to provide training to drivers in respect of speeding, fatigue management or filling in work diaries
- had inadequate procedures to detect breaches of work and rest hours by drivers
- did not regularly check the status of driver licences of its heavy vehicle drivers
- did not have a procedure requiring drivers to report any infringements received while driving a heavy vehicle
- relied on oral directions to schedule trips and did not prepare safe driving plans or consider fatigue of drivers.
The Court’s finding
The company and the schedulers entered a guilty plea under section 26G of the HVNL (the primary duty provision) and were fined $180,000 and $15,000 (each), respectively.
NHVR’s key takeaways
The NHVR’s key takeaways from this case are:
- written – document directions you give to staff. Do not rely on oral directions
- systems – if you have a system in place to manage your risks ensure they are working, maintained and accurate. You must proactively monitor compliance
- recording breaks – you cannot rely on drivers to accurately record breaks. There must be a system or process that ensures drivers are adhering to and recording their compliance with fatigue management
- driver training – it is more than ensuring they know how to complete a work diary. You must take steps to ensure that the drivers understand and are properly trained in managing fatigue. Compliance must be monitored on an ongoing basis
- risk – there does not need to be a collision or fatal accident to be convicted of a primary duty offence.
Guidance for schedulers, operators and employers
According to the NHVR, this case provides eight reasonably practicable measures that schedulers, operators and employers can take to reduce or minimise the risk associated with scheduling heavy vehicles (to be read in conjunction with the Master Code).
- Asking drivers if they have secondary employment that may impact their levels of fatigue.
- Preparing safe driving plans with scheduled break and rest locations.
- Verifying driver’s fitness to drive prior to each trip.
- Be mindful of drivers returning to work from leave when scheduling their driving shifts.
- Factor in delays encountered by drivers when scheduling.
- Proactively monitor driver’s compliance with their work and rest hours.
- Use a GPS system to confirm actual driver work hours.
- Ensure drivers have correctly calculated their work and rest hours and filled in their driver work diaries correctly prior to scheduling trips.
- Continual assessment and review of risks within their transport operations.
- Verifying drivers have current and valid licences.
- Implement safe driving plans for drivers.
- Ensure driver fitness is verified by a supervisor before each shift.
- Use all available information to ensure drivers are not speeding.
- Use all available information to make sure drivers are not driving in breach of their work and rest hours.
- Making sure drivers report all notices issued to them by road and transport authorities.
- Provide regular training to drivers about fatigue, work and rest hours, filling in work diaries and all company policies and procedures.
This significant decision showed that the courts are not against imposing high penalties for primary duty offences even if they have not resulted in any accidents. For this reason, it is important that schedulers, operators and employers heed the learnings from this case as outlined by the NHVR and make the requisite changes to their processes, policies and procedures.
If you have any questions about this article or how you should be complying with the HVNL, please get in touch with partner Nathan Cecil or a member of our Transport, Shipping & Logistics team below.
- This article was originally published in CoR Adviser. The article is © 2023 Portner Press Publishing Pty Ltd and has been reproduced with permission of Portner Press.
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.