National Transport Commission (Model Legislation - Heavy Vehicle Driver Fatigue) Regulations 2007
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A Bill for an Act to provide in relation to heavy vehicle driver fatigue as part of a system of nationally consistent road transport laws
Enacting formula
Part 1—Preliminary
Division 1.1—Introductory
1 Name of this Act
This Act is the Road Transport—Heavy Vehicle Driver Fatigue Act 2006.
2 Commencement
(1) Section 1 and this section commence on gazettal.
(2) The remaining provisions of this Act commences on a day or days specified by the Minister by notice in the Gazette.
3 Main purpose of this Act
The main purpose of this Act is to provide for the safe management of the fatigue of drivers of regulated heavy vehicles while they are driving on a road.
4 Outline of the main features of this Act
(1) This Act applies to:
(a) drivers of regulated heavy vehicles; and
(b) certain persons whose activities influence the conduct of drivers of regulated heavy vehicles in such a way as to affect the drivers’ fatigue when driving on a road.
Note: Examples of subsection (1)(b)
• employers and prime contractors of drivers of regulated heavy vehicles
• operators of regulated heavy vehicles
• persons who schedule goods or passengers for transport by regulated heavy vehicles or who schedule drivers of regulated heavy vehicles
• consignors and consignees of goods for transport by regulated heavy vehicles
• loaders and unloaders of goods for transport by regulated heavy vehicles
• persons who manage or operate premises where regulated heavy vehicles are loaded or unloaded or who supervise the activities of loaders and unloaders
Note: It is the performance of any these functions, whether exclusively or occasionally, that determines whether a person falls within any of these definitions, rather than their job title or contractual description.
(2) This Act, in Part 2 (Duties relating to fatigue), provides for general duties to avoid or prevent drivers from driving regulated heavy vehicles on a road while they are impaired by fatigue and for extra duties on certain parties in the chain of responsibility to do certain things to help drivers to comply with this Act.
(3) This Act, in Part 3 (Duties relating to work and rest times), provides for 3 work/rest hours options for drivers, namely:
(a) the standard hours for drivers (i.e. the standard work and rest times); and
(b) the basic fatigue management scheme (the BFM scheme); and
(c) the advanced fatigue management scheme (the AFM scheme); and
provides that parties in the chain of responsibility are liable for ensuring the driver complies with his or her relevant work/rest hours option.
(4) This Act, in Part 4 (Duties relating to record keeping), provides for recording the work and rest times of drivers (amongst other things).
(6) This Act, in Part 5 (Accreditation and exemptions), enables an operator to seek accreditation and a driver, employer, prime contractor or operator to seek an exemption from various requirements of this Act.
<Local provisions>
Division 1.2—Interpretation
5 Definitions—the dictionary etc
(1) The dictionary at the end of this Act defines certain words and expressions, and includes references to certain words and expressions that are defined elsewhere in this Act (signpost definitions).
Note: Example: The signpost definition ‘regulated heavy vehicle—see section 10(1)’ means that the expression regulated heavy vehicle is defined in section 10(1).
Note: The dictionary includes a signpost definition for a word or expression only if the word or expression is used in more than 1 section.
(2) The dictionary is part of this Act.
(3) A definition in this Act applies to each use of the word or expression in this Act, unless the contrary intention appears.
(4) An expression used in this Act that is also used (whether or not defined) in the C & E Act has, unless the contrary intention appears, the same meaning in this Act as in that Act.
6 Examples
(1) An example in this Act is part of this Act.
(2) If this Act includes an example of the operation of a provision of the Act:
(a) the example is not exhaustive; and
(b) the example does not limit, but may extend, the meaning of the provision.
7 Notes
A note in this Act is explanatory and is not part of the Act.
Drafting note: The interpretation legislation of some jurisdictions may already make provision for examples and notes consistent with sections 6 and 7.
8 Act to be read with Compliance and Enforcement Act
(1) This Act is to be read as one with the C & E Act.
(2) For the purposes of the C & E Act, this Act is to be taken to be a road law.
(3) Any provision of the C & E Act that is relevant to complying with or enforcing a road law or that Act applies in relation to this Act unless the provision is only able to be applied in relation to a breach of a mass, dimension or load restraint requirement under that Act.
Note: Example: Section 185 of the C & E Act makes void any term of a contract or agreement that purports to exclude, limit or modify the operation of that Act. This provision is able to be applied in relation to breaches other than breaches of a mass, dimension or load restraint requirement and therefore under this subsection it also applies in relation to this Act.
(4) The regulations may make further provision about the application of provisions of the C & E Act to this Act.
9 Relationship with other legislation and legal instruments
Nothing in this Act abrogates a provision of another law or legal instrument to the extent that the law or legal instrument is not inconsistent with this Act.
Note: Examples of another law or legal instrument
• another law relating to fatigue or work/rest hours
• an industrial award that provides for fatigue management or sets out agreed work/rest hours
• a contract that provides for fatigue management or sets out agreed work/rest hours
Division 1.3—How this Act applies
Subdivision 1.3.1—Regulated heavy vehicles
10 What is a regulated heavy vehicle
(1) A regulated heavy vehicle is:
(a) a heavy truck; or
(b) a bus.
Note: A regulated heavy vehicle is a sub‑category of heavy vehicle as defined in the C & E Act.
(2) A heavy truck is:
(a) a motor vehicle (except a bus or tram) with a GVM over 12 tonnes; or
(b) a motor vehicle (except a bus or tram) that is part of a combination, if the total of the GVMs of the vehicles in the combination is over 12 tonnes.
(3) A bus is a motor vehicle built mainly to carry people that seats over 12 adults (including the driver).
(4) A regulated heavy vehicle does not include:
(a) plant; or
(b) a motor home.
(5) Plant is a motor vehicle that:
(a) is built, or permanently modified, primarily to operate as a machine or implement:
(i) off‑road; or
(ii) on a road‑related area; or
(iii) on an area of road that is under construction; and
(b) is not capable of carrying goods or passengers by road.
Note: Example of what is plant
Note: An agricultural machine, backhoe, bulldozer, excavator, forklift, front‑end loader, grader, tractor or a motor vehicle that is registered as a type P plant‑based special purpose vehicle.
Note: Example of what is not plant
Note: A truck‑mounted crane or truck‑mounted drilling rig.
(6) A motor home is a rigid or articulated motor vehicle or combination that is built, or permanently modified, primarily for residential purposes, but does not include a motor vehicle only because it is constructed with a sleeper berth.
Drafting note: Implementing jurisdictions may vary the definition of regulated heavy vehicle to apply more broadly than provided for in this model legislation.
Subdivision 1.3.2—Who this Act applies to
11 Who is a driver
(1) A reference to a driver is a reference to the driver of a regulated heavy vehicle and includes an employed driver and a self‑employed driver.
Note: Driver is defined in the C & E Act.
(2) An employed driver is a driver who is employed by someone else to drive a regulated heavy vehicle.
(3) A driver who is not an employed driver but is driving a regulated heavy vehicle is a self‑employed driver.
12 Who are the parties in the chain of responsibility
(1) These people are parties in the chain of responsibility in relation to a regulated heavy vehicle:
(a) the employer of the driver of the vehicle; and
(b) the prime contractor of the driver; and
(c) the operator of the vehicle; and
(d) the scheduler of goods or passengers for transport by the vehicle, and the scheduler of its driver; and
(e) the consignor of goods for transport by the vehicle; and
(f) the consignee of goods for transport by the vehicle; and
(g) the loading manager of goods for transport by the vehicle; and
(h) the loader of goods on to the vehicle; and
(i) the unloader of goods from the vehicle.
Note: It is the performance of any these functions, whether exclusively or occasionally, that determines whether a person falls within any of these definitions, rather than their job title or contractual description.
(2) A person may be a party in the chain of responsibility in more than 1 capacity.
Note: Example: A person may be an employer, operator and consignor at the same time in relation to a driver and be subject to duties in each of the capacities.
Note: Section 147 of the C & E Act also provides that a person may be liable for a breach in one or more capacities under the chain of responsibility.
13 Who is an employer
An employer is a person who engages someone else to drive a regulated heavy vehicle under a contract of employment, apprenticeship or training.
Note: Example of an employer
Note: A labour hire company.
14 Who is a prime contractor
A prime contractor is a person who engages someone else to drive a regulated heavy vehicle under a contract for services.
Note: Example of a prime contractor
Note: A logistics business that engages a subcontractor to transport goods.
15 Who is an operator
(1) An operator of a regulated heavy vehicle is a person who is responsible for controlling or directing the operations of:
(a) in the case of a vehicle (including a vehicle in a combination)—the vehicle; or
(b) in the case of a combination—the towing vehicle in the combination.
(2) A person is not an operator merely because:
(a) the person owns a vehicle or combination; or
(b) the person drives a vehicle or combination; or
(c) the person maintains, or arranges for the maintenance of, a vehicle or combination; or
(d) the person arranges for the registration of a vehicle.
16 Who is a scheduler
A scheduler is:
(a) a person who schedules a driver’s work or rest time; or
(b) a person who schedules the transport of passengers or goods by road; or
(c) a person who makes a demand that affects a time in a schedule.
Note: Example of a person who makes a demand that affects a time in a schedule
Note: The distribution manager for a retail chain or a loading agent or freight forwarder who sets a deadline for a delivery.
Note: Example of a person who does not make a demand that affects a time in a schedule
Note: A person who has arranged for goods to be couriered by a transport company as a ‘part load’ who has no control over the deadline for the delivery of the goods.
17 Who is a consignor
A consignor of goods is:
(a) a person who, with that person’s authority, is named or otherwise identified as the consignor of the goods in the transport documentation relating to the transport of the goods by road; or
(b) a person who engages an operator of a vehicle or combination, either directly or indirectly or through an agent or other intermediary, to transport the goods by road; or
(c) a person who has possession of, or control over, the goods immediately before the goods are transported by road; or
(d) a person who loads a vehicle with the goods, for transport by road, at a place where goods in bulk are stored or temporarily held and that is unattended (except by a driver of the vehicle, a trainee driver or any person necessary for the normal operation of the vehicle) during loading; or
(e) if paragraphs (a) to (d) do not apply to the person or anyone else, and the goods are imported into Australia—a person who imports the goods.
18 Who is a consignee
A consignee of goods is:
(a) a person who, with that person’s authority, is named or otherwise identified as the intended consignee of the goods in the transport documentation relating to the transport of the goods by road; or
(b) a person who actually receives the goods after completion of their transport by road;
but does not include a person who merely unloads the goods.
19 Who is a loading manager
A loading manager is:
(a) a person who manages, or is responsible for the operation of, a site or premises where regulated heavy vehicles are loaded or unloaded; or
(b) a person who supervises, manages or controls any activity undertaken by a loader or unloader.
Note: Examples of a loading manager
Note: A company that runs, or a site manager for, a distribution centre.
20 Who is a loader
A loader of goods is:
(a) a person who loads a vehicle or combination with goods for transport by road; or
(b) a person who loads a vehicle or combination with a freight container (whether or not containing goods) for transport by road; or
(c) without limiting the above, a person who loads a freight container already in or on a vehicle or combination with goods for transport by road; or
(d) a person who supervises an activity mentioned in paragraph (a), (b) or (c); or
(e) a person who manages or controls an activity mentioned in paragraph (a), (b), (c) or (d).
21 Who is an unloader
An unloader of goods is:
(a) a person who unloads a vehicle or combination with goods for transport by road; or
(b) a person who unloads a vehicle or combination with a freight container (whether or not containing goods) for transport by road; or
(c) without limiting the above, a person who unloads a freight container already in or on a vehicle or combination with goods for transport by road; or
(d) a person who supervises an activity mentioned in paragraph (a), (b) or (c); or
(e) a person who manages or controls an activity mentioned in paragraph (a), (b), (c) or (d).
Drafting note: Several of these definitions are exactly the same as in the C & E Act, while others are somewhat modified. Implementing jurisdictions may decide to reference the definitions directly in the C & E Act where they are the same.
Subdivision 1.3.3—Where this Act applies
22 Jurisdictions and zones
(1) This jurisdiction is <insert name of jurisdiction>.
(2) Another jurisdiction is a State or Territory other than this jurisdiction.
(3) A participating jurisdiction is:
(a) this jurisdiction; or
(b) another jurisdiction, if that jurisdiction has a corresponding fatigue law.
(4) The participating zone is all participating jurisdictions.
(5) The non‑participating zone is all jurisdictions that are not participating jurisdictions.
Division 1.4—What does reasonable steps mean
23 What are reasonable steps
(1) Where a provision of this Act requires a person to take all reasonable steps to do a specified thing or achieve a specified outcome, the person must:
(a) identify and assess, on a regular basis, the risks to doing that thing or achieving that outcome; and
Note: Examples of ways to identify and assess risks
• consulting drivers, other parties in the chain of responsibility, unions and industry associations about those risks
• reviewing driving or work schedules and work records, including opportunities for rest breaks
• reviewing loading and unloading times and delays at loading and unloading places
• reviewing contractual arrangements and documentation relating to the consignment and delivery of goods
• regular health and safety audits
• regularly assessing driver fitness for duty
• analysing injury and incident reports
(b) manage those risks.
(2) Managing a risk means:
(a) taking reasonable steps to eliminate the risk; or
(b) if it is not reasonably practicable to eliminate or prevent the risk—taking reasonable steps to reduce the risk, or to minimise the likelihood of the risk eventuating.
Note: Examples of ways to manage risks
• workplace procedures and policies that relate to fatigue and compliance with work/rest hours
• contingency planning in relation to fatigue and work/rest hours
• a program to report and monitor fatigue‑related incidents, risks and hazards
• a program for assessing driver fitness for duty
• training and information for drivers, staff and parties in the chain of responsibility about fatigue and compliance with work/rest hours
• appropriate supervision and management of drivers, staff and parties in the chain of responsibility
• scheduling arrangements that take account of fatigue risks and work/rest hours
• allowing for traffic or other delays in scheduling
• a system for giving drivers sufficient notice of schedule changes
• a system to maintain equipment, work systems and work records
• compliance assurance conditions in relevant commercial arrangements with other parties in the chain of responsibility
• avoiding incentives or demands in commercial arrangements that may cause, permit, encourage or contribute to fatigue or breaches of work/rest hours
• a system for monitoring and remedying problems related to fatigue and work/rest hours
Note: Section 185 of the C & E Act voids any term of a contract or agreement that purports to exclude, limit or modify the operation of that Act. This section also applies to this Act—see section 6 above.
(3) The court may have regard to anything that it considers to be relevant when it is deciding whether things that the person did, or did not do, were reasonable steps, including:
(a) the nature of the risk that the person was attempting to, or should have been attempting to, address; and
(b) the likelihood of that risk eventuating and the degree of harm that would result if it did eventuate; and
(c) if a driver has driven while impaired by fatigue or in breach of the work/rest hours—the circumstances of the offence (e.g. the risk category that the offence belongs to); and
(d) the degree to which the person (either personally or through an agent or employee) had the ability to eliminate, prevent or reduce the risk or to minimise likelihood of the risk eventuating; and
(e) the experience, expertise and knowledge that the person, or the person’s agent or employee, had or ought reasonably have had; and
(f) the availability and suitability of ways to eliminate, prevent or reduce the risk or to minimise the likelihood of the risk eventuating; and
(g) the body of fatigue knowledge.
(4) Evidence that the person had complied with a registered industry code of practice in relation to the matters that the offence relates to, is evidence that the person had taken reasonable steps.
Note: Industry codes of practice may be registered under section 179 (Registration of industry codes of practice) of the C & E Act or under a corresponding road law.
(5) However, a person who is charged with an offence may rely on subsection (4) only if the person serves a notice of intention to do so on the prosecution at least 28 days before the day on which the hearing for the offence is to start.
24 What is the reasonable steps defence
If a provision states that a person has the benefit of the reasonable steps defence for an offence, it is a defence to a charge for the offence for the person to prove that:
(a) the person had taken all reasonable steps to prevent the contravention concerned; or
(b) the person could not reasonably be expected to have taken any steps to prevent the contravention concerned.
Note: Section 23 explains what reasonable steps are.
25 Deciding whether persons ought reasonably to have known
If, in a prosecution for an offence against this Act, it is relevant to prove that someone ought reasonably to have known something, the issue must be decided having regard to:
(a) the person’s abilities, experience, expertise, knowledge, qualifications and training; and
(b) the circumstances of the offence; and
(c) any other matters prescribed by the regulations.
Part 2—Duties relating to fatigue
Division 2.1—What is fatigue
26 What is fatigue
(1) Fatigue includes for example:
(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).
Note: Fatigued has a meaning that corresponds to the meaning of fatigue in subsection (1). This is the effect of section 18A (Parts of speech and grammatical forms) of the Acts Interpretation Act 1901 of the Commonwealth.
Drafting note: The above note will need to be changed to refer to the appropriate interpretation legislation of the jurisdiction adopting the model Act.
(2) When deciding whether a driver is fatigued, a court may take into account anything it considers is relevant, including for example:
(a) what is commonly understood as being fatigued; and
(b) the causes of fatigue; and
(c) the signs of fatigue; and
(d) the body of fatigue knowledge; and
(e) any matter prescribed by the regulations.
(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 (i.e. the “body clock”)
• environmental stress (e.g. 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 of risk of fatigue, either at a workplace or on a road.
(6) In proceedings for an offence under this Act, a statement by the complainant that, at a specified time or during a specified period, the complainant observed a specified driver exhibiting specified behaviour is evidence of that.
(7) A statement by the complainant is a statement in a complaint or charge made by the person bringing the proceedings.
27 What is impaired by fatigue
(1) A driver is impaired by fatigue if the driver is fatigued to the extent that he or she is incapable of driving a vehicle safely.
Note: Section 26(1) explains what fatigue and fatigued mean.
(2) When deciding whether a driver was impaired by fatigue, a court may take into account anything it considers is relevant, including for example:
(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; and
(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 (e.g. drifting into other lanes or not changing gears smoothly)
(c) the nature and extent of any physical or mental exertion by the driver; and
(d) whether the driver was in breach of his or her work/rest hours.
Note: Sections 26(3) and (4) explain what a cause of fatigue and a sign of fatigue are.
(3) A court may consider a driver to be impaired by fatigue even if the driver has complied with any requirements under this Act (e.g. the standard hours) or under any other legislation.
(4) In proceedings for an offence under this Act, a statement by the complainant that, at a specified time or during a specified period, the complainant observed a specified driver exhibiting specified behaviour is evidence of that.
(5) A statement by the complainant is a statement in a complaint or charge made by the person bringing the proceedings.
Division 2.2—Duties to avoid and prevent fatigue
28 Driver’s duty to avoid driver fatigue
(1) A person must not drive a regulated heavy vehicle on a road while he or she is impaired by fatigue.
Penalty: the penalty for a severe risk offence.
Note 1: A driver may be impaired by fatigue even though he or she has complied with other requirements of this Act—see section 27(3).
Note 2: Section 106 explains how an offence is specified as a severe risk offence. Section 110 sets out the penalties for severe risk offences.
(2) An offence against subsection (1) is an offence of absolute liability.
(3) If, in relation to conduct at a particular time in relation to which a driver has been charged with an offence under subsection (1), the driver has been convicted of a prescribed driver offence under another law in relation to the same conduct, the court must discharge the proceedings against the driver.
(4) If, in relation to conduct at a particular time in relation to which a driver has been charged with an offence under subsection (1), the driver has been convicted, the court must discharge any proceedings against the driver for a prescribed driver offence under another law in relation to the same conduct.
(5) A prescribed driver offence under another law means an offence under another law of this jurisdiction prescribed by the regulations.
Drafting note: To address potential duplicity of offences that could result in double jeopardy, it is intended that jurisdictions will prescribe overlapping offences that may be committed contemporaneously as a result of a driver driving while impaired by fatigue, e.g. dangerous driving offences or employee offences under workplace safety legislation.
29 Duty on 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 while the person is impaired by fatigue.
Penalty: the penalty for a critical risk offence.
Note 1: Section 12 explains who are parties in the chain of responsibility.
Note 2: Section 23 explains what reasonable steps are.
Note 3: Section 106 explains how an offence is specified as a critical risk offence. Section 110 sets out the penalties for critical risk offences.
(2) An offence against subsection (1) is an offence of absolute liability.
(3) For subsection (1) evidence that a party is complying with a prescribed fatigue duty under another law is evidence that the party had taken all reasonable steps in relation to the offence.
(4) A prescribed fatigue duty under another law means a duty under another law of this jurisdiction or of another participating jurisdiction prescribed by the regulations and, in the case of an operator, includes the requirements of a BFM or AFM accreditation.
Drafting note: This provision enables implementing jurisdictions to recognise fatigue management obligations under other legislative regimes directed toward the management of fatigue risks, e.g. workplace safety laws, as evidence of reasonable steps in relation to this duty.
Division 2.3—Additional duties on certain parties in the chain of responsibility
30 Duties on employers, prime contractors and operators
(1) This section 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 schedule for the driver will not cause or permit the driver to:
(a) drive while impaired by fatigue; or
(b) drive while in breach of his or her work/rest hours option; or
(c) drive in breach of another law to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.
Penalty: the penalty for a severe risk offence.
Note 1: Section 23 explains what reasonable steps are.
Note 2: Section 27 explains what impaired by fatigue means.
Note 3: Section 35 explains what a work/rest hours option is.
Note 4: Section 106 explains how an offence is specified as a severe risk offence. Section 110 sets out the penalties for severe risk offences.
(3) The employer must not cause or permit the driver to drive the vehicle unless:
(a) the employer has complied with subsection (2); and
(b) the employer, after making reasonable inquiries, is satisfied that the scheduler has complied with section 31.
Penalty: the penalty for a substantial risk offence.
Note: Section 106 explains how an offence is specified as a substantial risk offence. Section 110 sets out the penalties for substantial risk offences.
(4) The prime contractor and operator each must not cause or permit 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 subsection (2); and
(b) the prime contractor or operator, after making reasonable inquiries, is satisfied that the scheduler has complied with section 31.
Penalty: the penalty for a substantial risk offence.
Note: Section 106 explains how an offence is specified as a substantial risk offence. Section 110 sets out the penalties for substantial risk offences.
(5) An offence against subsection (2), (3) or (4) is an offence of absolute liability.
31 Duties on schedulers
(1) This section 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 or permit the driver to:
(a) drive while impaired by fatigue; or
(b) drive while in breach of his or her work/rest hours option; or
(c) drive in breach of another law to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.
Penalty: the penalty for a severe risk offence.
Note 1: Section 23 explains what reasonable steps are.
Note 2: Section 27 explains what impaired by fatigue means.
Note 3: Section 36 explains what a work/rest hours option is.
Note 4: Section 106 explains how an offence is specified as a severe risk offence. Section 110 sets out the penalties for severe risk offences.
(3) The scheduler must not cause or permit the driver to drive the vehicle unless:
(a) the scheduler has complied with subsection (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/rest hours option; and
Note: Example of ways to take rest breaks
• ensuring that a driver is able to take a short rest break at a suitable location
• ensuring that a driver is able to take a long rest break at a location where facilities that enable adequate rest to be taken are available
(ii) traffic conditions and other delays that could reasonably be expected.
Note: Examples of traffic conditions and other delays that could reasonably be expected
• the actual average speed able to be travelled lawfully and safely by the driver on the route in question
• known traffic conditions such as road works or traffic congestion on the route in question
• delays caused by loading, unloading or queuing
Penalty: the penalty for a substantial risk offence.
Note: Section 106 explains how an offence is specified as a substantial risk offence. Section 110 sets out the penalties for substantial risk offences.
(4) An offence against subsection (2) or (3) is an offence of absolute liability.
32 Duties on consignors and consignees
(1) This section 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 (e.g. delivery times) will not result in, encourage or provide an incentive to the driver to:
(a) drive while impaired by fatigue; or
(b) drive while in breach of his or her work/rest hours option; or
(c) drive in breach of another law to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.
Penalty: the penalty for a severe risk offence.
Note 1: Section 23 explains what reasonable steps are.
Note 2: Section 27 explains what impaired by fatigue means.
Note 3: Section 36 explains what a work/rest hours option is.
Note 4: Section 106 explains how an offence is specified as a severe risk offence. Section 110 sets out the penalties for severe risk offences.
(3) The consignor and consignee each must take all reasonable steps to ensure that the terms of consignment (e.g. delivery times) will not result in, encourage or provide an incentive to the employer of an employed driver, prime contractor of a self‑employed driver or operator of the regulated heavy vehicle to cause or permit the driver to:
(a) drive while impaired by fatigue; or
(b) drive while in breach of his or her work/rest hours option; or
(c) drive in breach of another law to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.
Penalty: the penalty for a severe risk offence.
Note 1: Section 23 explains what reasonable steps are.
Note 2: Section 27 explains what impaired by fatigue means.
Note 3: Section 36 explains what a work/rest hours option is.
Note 4: Section 106 explains how an offence is specified as a severe risk offence. Section 110 sets out the penalties for severe risk offences.
(4) The consignor and consignee each must not cause or permit 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 subsection (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 section 30; and
(ii) the scheduler has complied with section 31; 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 section 30; and
(ii) the scheduler has complied with section 31.
Penalty: the penalty for a substantial risk offence.
Note 4: Section 106 explains how an offence is specified as a substantial risk offence. Section 110 sets out the penalties for substantial risk offences.
(5) An offence against subsection (2), (3) or (4) is an offence of absolute liability.
33 Duties on loading managers
(1) This section applies to loading managers of goods for transport by a regulated heavy vehicle.
(2) The loading manager must take all reasonable steps to ensure that the arrangements for loading and unloading the vehicles will not cause, or contribute to causing, a driver of a regulated heavy vehicle to:
(a) drive while impaired by fatigue; or
(b) drive while in breach of his or her work/rest hours option; or
(c) drive in breach of another law to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.
Penalty: the penalty for a severe risk offence.
Note: Examples of reasonable steps to comply with subsection (2)
• providing for rest to be taken with adequate facilities
• providing for the reporting of travel delays and providing a mechanism for managing late arrivals
• allowing loading and unloading to occur at an agreed time
• having a system of setting and allocating loading and unloading times that a driver can reasonably rely on to comply with the work and rest times specified in this Act
Note 1: Section 23 explains what reasonable steps are.
Note 2: Section 27 explains what impaired by fatigue means.
Note 3: Section 36 explains what a work/rest hours option is.
Note 4: Section 106 explains how an offence is specified as a severe risk offence. Section 110 sets out the penalties for severe risk offences.
(3) If the loading manager or a person acting under his or her supervision or control:
(a) nominates a time for loading or unloading a vehicle and that time is exceeded by more than 30 minutes; or
(b) is unable to nominate a time for loading or unloading the vehicle;
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.
Note: Example of reasonable steps that may be taken to ensure a driver is able to take rest
Note: Providing a system of notifying the driver when his or her vehicle can be loaded or unloaded that does not require the driver to be awake or unreasonably alert.
Penalty: the penalty for a substantial risk offence.
Note 1: Section 23 explains what reasonable steps are.
Note 2: Section 27 explains what impaired by fatigue means.
Note 3: Section 36 explains what a work/rest hours option is.
Note 4: Section 106 explains how an offence is specified as a substantial risk offence. Section 110 sets out the penalties for substantial risk offences.
(2) An offence against subsection (2) or (3) is an offence of absolute liability.
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 or permitting the driver to:
(a) drive while impaired by fatigue; or
(b) drive while in breach of his or her work/rest hours option; or
(c) drive in breach of another law to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.
Note: Example of a requirement that contravenes this section
Note: 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.
Penalty: the penalty for a critical risk offence.
Note 1: Section 27 explains what impaired by fatigue means.
Note 2: Section 36 explains what a work/rest hours option is.
Note 3: Section 106 explains how an offence is specified as a critical risk offence. Section 110 sets out the penalties for critical risk offences.
35 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 or permitting a driver to:
(a) drive while impaired by fatigue; or
(b) drive while in breach of his or her work/rest hours option; or
(c) drive in breach of another law to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.
Penalty: the penalty for a critical risk offence.
Note 1: Section 27 explains what impaired by fatigue means.
Note 2: Section 36 explains what a work/rest hours option is.
Note 3: Section 106 explains how an offence is specified as a critical risk offence. Section 110 sets out the penalties for critical risk offences.
(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 or permit a driver to:
(a) drive while impaired by fatigue; or
(b) drive while in breach of his or her work/rest hours option; or
(c) drive in breach of another law to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.
Penalty: the penalty for a critical risk offence.
Note 1: Section 27 explains what impaired by fatigue means.
Note 2: Section 36 explains what a work/rest hours option is.
Note 3: Section 106 explains how an offence is specified as a critical risk offence. Section 110 sets out the penalties for critical risk offences.
Part 3—Duties relating to work and rest times
Division 3.1—Key concepts for this Part
Subdivision 3.1.1—Work and rest time
36 What is work/rest hours option
A work/rest hours option sets out the maximum work time and minimum rest time that a driver must have and includes:
(a) standard hours; and
(b) BFM hours; and
(c) AFM hours.
Note: Section 43 explains what standard hours are. Section 48 explains what BFM hours are. Section 52 explains what AFM hours are.
37 What is work time
(1) A driver’s work time is:
(a) the time that the driver spends driving a regulated heavy vehicle, whether or not it is on a road; and
(b) any other time that the driver spends doing tasks that are related to the operation of a regulated heavy vehicle, including for example:
(i) loading or unloading the vehicle; and
(ii) inspecting, servicing or repairing the vehicle; and
(iii) inspecting or attending to the load on the vehicle; and
(iv) attending to the passengers of a bus; and
(v) cleaning or refuelling the vehicle; and
(vi) performing marketing tasks in relation to the operation of the vehicle; and
(vii) helping with, or supervising, an activity mentioned in subparagraphs (i) to (vi); and
(viii) recording information, or completing a document, in accordance with this Act or otherwise, in relation to the operation of the vehicle.
(2) For subparagraph (1)(b)(vi), marketing tasks includes:
(a) arranging for the transport of passengers or goods; and
(b) canvassing for orders for the transport of passengers or goods.
38 What is rest time
Rest time of a driver is time that is not work time of the driver.
39 What is a work/rest change
A work/rest change for a driver is:
(a) a change from work time to rest time; or
(b) a change from rest time to work time; or
(c) a change from being a solo driver to being a two‑up driver; or
(d) a change from being a two‑up driver to being a solo driver.
Subdivision 3.1.2—Counting time
40 Counting time, including work and rest time
(1) A period of work time of less than 15 minutes counts as 15 minutes work time.
Note: Examples
• A period of working for 14 minutes counts as 15 minutes work time.
• A period of working for 17 minutes counts as 30 minutes work time.
• A period of working for 53 minutes counts as 1 hour work time.
(2) A period of rest time is counted in blocks of time of no less than 15 minutes.
Note: Examples
• A period of not working for only 14 minutes does not count as rest time (because 14 minutes is less than 15 minutes).
• A period of not working for 17 minutes counts as 15 minutes rest time (because 17 minutes is more than 15 minutes, but is less than 2 lots of 15 minutes i.e. 30 minutes).
• A period of not working for 53 minutes counts as 45 minutes rest time (because 53 minutes is more than 3 lots of 15 minutes i.e. 45 minutes, but is less than 4 lots of 15 minutes i.e. 60 minutes).
(3) When counting time in a period, the time must not be counted from within rest time, but instead must be counted forward from the end of a major rest break.
Note: Example: A driver completes a 7 hour continuous rest break at 7 am. If the driver is subsequently intercepted by an authorised officer or police officer at 5 pm while the driver is on work time, the officer must calculate the driver’s work and rest times for that day counting forward from 7 am, which was the end of the driver’s last major rest break.
(4) If a driver undertakes a journey and is in a different time zone from the time zone of his or her base at the time when a period of time is relevant for the purposes of this Act, the period must be counted by reference to the time zone of the base.
Note: Example: If it is necessary to determine the night hours of a driver with a base in Western Australia while the driver is in New South Wales on a journey, those night hours are the period between 12 midnight and 6 am in the Western Australian time zone in which the driver’s base is situated (even though those hours equate, for instance, to 3 am to 9 am Eastern Standard Summer Savings Time).
41 Counting time within the participating zone
In applying this Part to a driver, any time that is spent by the driver in another jurisdiction within the participating zone is to be treated in the same way as it would have been treated if the time had been spent in this jurisdiction.
Note: Section 22(4) explains what the participating zone is.
42 Counting time from outside the participating zone
(1) This section applies to a driver if the driver drives a regulated heavy vehicle into this jurisdiction from another jurisdiction within the non‑participating zone.
Note: Section 22(5) explains what the non‑participating zone is.
(2) If, within the last 7 days, the driver has spent any work time inside the participating zone, any time spent by the driver in the other jurisdiction within the non‑participating zone is to be treated in the same way as it would have been treated if the time had been spent in this jurisdiction.
(3) If, within the last 7 days, the driver spent any work time outside the participating zone:
(a) any time spent in the other jurisdiction before the start of the driver’s last major rest break before entering this jurisdiction is to be disregarded; and
(b) any time spent in the other jurisdiction after the start of that major rest break is to be taken into account; and
(c) any time spent by the driver in the non‑participating zone (or another jurisdiction in the participating zone) after the start of that major rest break is to be treated in the same way as it would have been treated if the time had been spent in this jurisdiction.
Division 3.2—Standard hours
43 What this Division is about
(1) This Division is about the work and rest times that apply to the driver of a regulated heavy vehicle, and that a party in the chain of responsibility must ensure a driver complies with, if the driver is not working under a BFM or AFM accreditation (the standard hours).
Note: Divisions 3.3 and 3.4 explain the hours for drivers under a BFM and AFM accreditation.
(2) The solo driver of a bus has the option to drive under either (but not both):
(a) the standard hours set out in section 44; or
(b) the standard hours set out in section 45.
44 Standard hours—solo drivers
(1) The table at the end of this section sets out the standard hours for the solo driver of a regulated heavy vehicle (including a bus).
Note: Sections 49 and 52 explain the hours for solo drivers under a BFM and AFM accreditation.
(2) In any period mentioned in column 1, the solo driver:
(a) must not work for more than the work time mentioned in column 2; and
(b) must have the rest of that period off work, with at least the rest time mentioned in column 3.
Penalty: the penalty for the category of offence mentioned in column 4.
Note: Section 106 explains how an offence is specified as a minor risk offence, a substantial risk offence, a severe risk offence or a critical risk offence. Section 110 sets out the penalties for each category of offence.
(3) A party in the chain of responsibility for the regulated heavy vehicle must ensure the solo driver does not contravene subsection (2).
Penalty: the penalty for the category of offence mentioned in column 4.
Note: Section 106 explains how an offence is specified as a minor risk offence, a substantial risk offence, a severe risk offence or a critical risk offence. Section 110 sets out the penalties for each category of offence.
(4) An offence against subsection (2) or (3) is an offence of absolute liability.
(5) However, a party charged with an offence against subsection (2) or (3) has the benefit of the reasonable steps defence.
Note: Section 24 explains the reasonable steps defence.
(6) In this section, a reference to a column by number is a reference to the column of that number in the following table:
Standard hours—Solo drivers of a regulated heavy vehicle
<table cellspacing="0" cellpadding="0" style="width:100%; border:0.75pt solid #000000; border-collapse:collapse"><tbody><tr><td style="width:12.84%; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.03pt; vertical-align:top"><p class="TableHeading"><a id="BK_S4P16L17C18"></a><a id="BK_S4P19L20C21"><span>Column 1</span></a></p><p class="TableHeading"><span>Total period</span></p></td><td style="width:16.32%; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Column 2</span></p><p class="TableHeading"><span>Maximum work time</span></p></td><td style="width:21.54%; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Column 3</span></p><p class="TableHeading"><span>Minimum rest time</span></p></td><td colspan="2" style="border-bottom:0.75pt solid #000000; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Column 4</span></p><p class="TableHeading"><span>Offence category</span></p></td></tr><tr style="height:39.4pt"><td style="width:12.84%; border-top:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.03pt; vertical-align:top"><p class="Tabletext"><span style="font-style:italic">In any period of</span><span style="font-style:italic"> </span><span style="font-style:italic">...</span></p></td><td style="width:16.32%; border-top:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-style:italic">... a driver must not work for more than</span><span style="font-style:italic"> </span><span style="font-style:italic">...</span></p></td><td style="width:21.54%; border-top:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-style:italic">... and must have the rest of that period off work, with at least ...</span></p></td><td style="width:29.74%; border-top:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-style:italic">If in that period a driver has …</span></p></td><td style="width:19.56%; border-top:0.75pt solid #000000; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-style:italic">… the following category of offence is committed…</span></p></td></tr><tr style="height:18.35pt"><td style="width:12.84%; border-top:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.03pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">5½ hrs</span></p></td><td style="width:16.32%; border-top:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">5¼ hrs</span><span> work time</span></p></td><td style="width:21.54%; border-top:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">15 continuous mins stationary</span><span> rest time</span></p></td><td style="width:29.74%; border-top:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>> </span><span style="font-weight:bold">5¼ hrs</span><span> work time</span></p></td><td style="width:19.56%; border-top:0.75pt solid #000000; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>minor risk</span></p></td></tr><tr><td style="width:12.84%; padding-right:5.4pt; padding-left:5.03pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">8 hrs</span></p></td><td style="width:16.32%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">7½ hrs</span><span> work time</span></p></td><td style="width:21.54%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">30 mins stationary</span><span> rest time, in blocks of </span><span style="font-weight:bold">15</span><span style="font-weight:bold"> </span><span style="font-weight:bold">continuous mins</span><span></span></p></td><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>> </span><span style="font-weight:bold">7½ hrs</span><span> work time</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>minor risk</span></p></td></tr><tr><td rowspan="2" style="width:12.84%; padding-right:5.4pt; padding-left:5.03pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">11 hrs</span></p></td><td rowspan="2" style="width:16.32%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">10 hrs</span><span> work time</span></p></td><td rowspan="2" style="width:21.54%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">60 mins stationary</span><span> rest time, in blocks of </span><span style="font-weight:bold">15 continuous mins</span><span></span></p></td><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-family:Symbol, serif"></span><span> </span><span style="font-weight:bold">10¾ hrs</span><span> work time</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>minor risk</span></p></td></tr><tr><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>> </span><span style="font-weight:bold">10¾ hrs</span><span> work time</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>substantial risk</span></p></td></tr><tr><td rowspan="8" style="width:12.84%; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.03pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">24 hrs</span></p><p class="Tabletext"><span></span></p></td><td rowspan="8" style="width:16.32%; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">12 hrs</span><span> work time</span></p><p class="Tabletext"><span></span></p></td><td rowspan="2" style="width:21.54%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span></span></p></td><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-family:Symbol, serif"></span><span> </span><span style="font-weight:bold">12¾ hrs</span><span> work time</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>minor risk</span></p></td></tr><tr><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>> </span><span style="font-weight:bold">12¾</span><span> but not > </span><span style="font-weight:bold">13¼ hrs</span><span> work time</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>substantial risk</span></p></td></tr><tr><td rowspan="2" style="width:21.54%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span></span></p></td><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>> </span><span style="font-weight:bold">13¼</span><span> but not > </span><span style="font-weight:bold">13½ hrs</span><span> work time</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>severe risk</span></p></td></tr><tr><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>> </span><span style="font-weight:bold">13½ hrs</span><span> work time</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>critical risk</span></p></td></tr><tr><td rowspan="4" style="width:21.54%; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">7 continuous hrs stationary</span><span> rest time</span></p></td><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">7</span><span> but not < </span><span style="font-weight:bold">6¼ continuous hrs stationary</span><span> rest time</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>minor risk</span></p></td></tr><tr style="height:42.85pt"><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">6¼</span><span> but not < </span><span style="font-weight:bold">5¾ continuous hrs stationary</span><span> rest time</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>substantial risk</span></p></td></tr><tr style="height:46.45pt"><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">5¾</span><span> but not < </span><span style="font-weight:bold">5½ continuous hrs stationary</span><span> rest time</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>severe risk</span></p></td></tr><tr style="height:32pt"><td style="width:29.74%; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">5½ continuous hrs stationary</span><span> rest time</span></p></td><td style="width:19.56%; border-bottom:0.75pt solid #000000; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>critical risk</span></p></td></tr><tr><td rowspan="8" style="width:12.84%; padding-right:5.4pt; padding-left:5.03pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">7 day</span></p><p class="Tabletext"><span>(168 hrs)</span></p></td><td rowspan="8" style="width:16.32%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">72 hrs</span><span> work time</span></p></td><td rowspan="4" style="width:21.54%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span></span></p></td><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-family:Symbol, serif"></span><span> </span><span style="font-weight:bold">73½ hrs</span><span> work time</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>minor risk</span></p></td></tr><tr><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>> </span><span style="font-weight:bold">73½</span><span> but not > </span><span style="font-weight:bold">74½ hrs</span><span> work time</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>substantial risk</span></p></td></tr><tr><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>> </span><span style="font-weight:bold">74½</span><span> but not > </span><span style="font-weight:bold">75 hrs</span><span> work time</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>severe risk</span></p></td></tr><tr><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>> </span><span style="font-weight:bold">75 hrs</span><span> work time</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>critical risk</span></p></td></tr><tr><td rowspan="4" style="width:21.54%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">24 continuous hrs stationary</span><span> rest time</span></p><p class="Tabletext"><span></span></p></td><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">24</span><span> but not < </span><span style="font-weight:bold">23¼ continuous hrs stationary</span><span> rest time</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>minor risk</span></p></td></tr><tr><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">23¼</span><span> but not < </span><span style="font-weight:bold">22¾ continuous hrs stationary</span><span> rest time</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>substantial risk</span></p></td></tr><tr><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">22¾</span><span> but not < </span><span style="font-weight:bold">22½ continuous hrs stationary</span><span> rest time</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>severe risk</span></p></td></tr><tr style="height:27.85pt"><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">22½ continuous hrs stationary</span><span> rest time</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>critical risk</span></p></td></tr><tr><td rowspan="12" style="width:12.84%; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.03pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">14 days</span></p><p class="Tabletext"><span>(336 hrs)</span></p></td><td rowspan="12" style="width:16.32%; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">144 hrs</span><span> work time</span></p></td><td rowspan="4" style="width:21.54%; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span></span></p></td><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-family:Symbol, serif"></span><span> </span><span style="font-weight:bold">145½ hrs</span><span> work time</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>minor risk</span></p></td></tr><tr><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>> </span><span style="font-weight:bold">145½</span><span> but not > </span><span style="font-weight:bold">146½ hrs</span><span> work time</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>substantial risk</span></p></td></tr><tr><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>> </span><span style="font-weight:bold">146½</span><span> but not > </span><span style="font-weight:bold">147 hrs</span><span> work time</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>severe risk</span></p></td></tr><tr><td style="width:29.74%; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>> </span><span style="font-weight:bold">147 hrs</span><span> work time</span></p></td><td style="width:19.56%; border-bottom:0.75pt solid #000000; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>critical risk</span></p></td></tr><tr style="height:48.5pt"><td rowspan="4" style="width:21.54%; border-top:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">2 x night rest breaks</span><span>, and</span></p><p class="Tabletext"><span></span></p></td><td style="width:29.74%; border-top:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">7</span><span> but not < </span><span style="font-weight:bold">6¼ continuous hrs stationary</span><span> rest time per block</span></p></td><td style="width:19.56%; border-top:0.75pt solid #000000; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>minor risk</span></p></td></tr><tr style="height:48.5pt"><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">6¼</span><span> but not < </span><span style="font-weight:bold">5¾ continuous hrs stationary</span><span> of that rest time per block</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>substantial risk</span></p></td></tr><tr style="height:48.5pt"><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">5¾</span><span> but not < </span><span style="font-weight:bold">5½ continuous hrs stationary</span><span> of that rest time per block</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>severe risk</span></p></td></tr><tr style="height:35.85pt"><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">5½ continuous hrs stationary</span><span> of that rest time per block</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>critical risk</span></p></td></tr><tr style="height:48.5pt"><td rowspan="4" style="width:21.54%; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">2 x night rest breaks</span><span> taken on consecutive days</span></p></td><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">7</span><span> but not < </span><span style="font-weight:bold">6¼ continuous hrs stationary</span><span> of that rest time per block</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>minor risk</span></p></td></tr><tr style="height:48.5pt"><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">6¼</span><span> but not < </span><span style="font-weight:bold">5¾ continuous hrs stationary</span><span> of that rest time per block</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>substantial risk</span></p></td></tr><tr style="height:48.5pt"><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">5¾ </span><span>but not < </span><span style="font-weight:bold">5½ continuous hrs stationary</span><span> of that rest time per block</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>severe risk</span></p></td></tr><tr style="height:37.75pt"><td style="width:29.74%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">5½ continuous hrs stationary</span><span> of that rest time per block</span></p></td><td style="width:19.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>critical risk</span></p></td></tr></tbody></table>
Note: Example
Note: If a driver starts work at midday on Monday, after a 2‑day break, the minimum rest times that the driver might have would be:
• 15 continuous minutes rest time before 5:30 pm
• another 15 continuous minutes rest time before 8:00 pm (i.e. a total of 30 minutes rest time since midday)
• another continuous 30 minutes rest time before 11:00 pm (i.e. a total of 60 minutes rest time since midday)
• another continuous 7 hours rest time before midday on Tuesday.
Note: The driver could do the same hours through to Saturday, but would have to take a break from midday Sunday until midday Monday (i.e. 24 hours stationary continuous rest). Additionally, the driver would have to take at least one other of his or her 7 hour rests during the period 10:00 pm to 8:00 am.
Note: The driver could continue the same pattern for a second week, through until the second Saturday, if the driver has had a night’s rest time (i.e. 7 continuous hours rest time between 10:00 pm and 08:00 am) on 4 nights, including 2 consecutive nights, during the fortnight ending on midday on the second Sunday.
Note: (This example assumes that the driver has remained in the same time zone during the entire period described.)
45 Standard hours—solo drivers of buses
(1) The table at the end of this section sets out the standard hours for the solo driver of a bus.
Note: Sections 49 and 52 explain the hours for solo drivers under a BFM and AFM accreditation.
(2) In any period mentioned in column 1, the solo driver of a bus:
(a) must not work for more than the work time mentioned in column 2; and
(b) must have the rest of that period off work, with at least the rest time mentioned in column 3.
Penalty: the penalty for the category of offence mentioned in column 4.
Note: Section 106 explains how an offence is specified as a minor risk offence, a substantial risk offence, a severe risk offence or a critical risk offence. Section 110 sets out the penalties for each category of offence.
(3) A party in the chain of responsibility for the bus must ensure the solo driver does not contravene subsection (2).
Penalty: the penalty for the category of offence mentioned in column 4.
Note: Section 106 explains how an offence is specified as a minor risk offence, a substantial risk offence, a severe risk offence or a critical risk offence. Section 110 sets out the penalties for each category of offence.
(4) An offence against subsection (2) or (3) is an offence of absolute liability.
(5) However, a party charged with an offence against subsection (2) or (3) has the benefit of the reasonable steps defence.
Note: Section 24 explains the reasonable steps defence.
(6) In this section, a reference to a column by number is a reference to the column of that number in the following table:
Standard hours—Solo drivers of buses
<table cellspacing="0" cellpadding="0" style="width:100%; border:0.75pt solid #000000; border-collapse:collapse"><tbody><tr><td style="width:12.88%; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.03pt; vertical-align:top"><p class="TableHeading"><a id="BK_S4P22L23C24"></a><a id="BK_S4P25L26C27"><span>Column 1</span></a></p><p class="TableHeading"><span>Total period</span></p></td><td style="width:16.28%; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Column 2</span></p><p class="TableHeading"><span>Maximum work time</span></p></td><td style="width:20.92%; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Column 3</span></p><p class="TableHeading"><span>Minimum rest time</span></p></td><td colspan="2" style="border-bottom:0.75pt solid #000000; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Column 4</span></p><p class="TableHeading"><span>Offence category</span></p></td></tr><tr style="height:39.4pt"><td style="width:12.88%; border-top:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.03pt; vertical-align:top"><p class="Tabletext"><span style="font-style:italic">In any period of</span><span style="font-style:italic"> </span><span style="font-style:italic">...</span></p></td><td style="width:16.28%; border-top:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-style:italic">... a driver must not work for more than ...</span></p></td><td style="width:20.92%; border-top:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-style:italic">... and must have the rest of that period off work, with at least ...</span></p></td><td style="width:29.36%; border-top:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-style:italic">If in that period a driver has …</span></p></td><td style="width:20.56%; border-top:0.75pt solid #000000; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-style:italic">… the following category of offence is committed…</span></p></td></tr><tr style="height:18.35pt"><td style="width:12.88%; border-top:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.03pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">5½ hrs</span></p></td><td style="width:16.28%; border-top:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">5¼ hrs</span><span> work time</span></p></td><td style="width:20.92%; border-top:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">15 continuous mins stationary</span><span> rest time</span></p></td><td style="width:29.36%; border-top:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>> </span><span style="font-weight:bold">5¼ hrs</span><span> work time</span></p></td><td style="width:20.56%; border-top:0.75pt solid #000000; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>minor risk</span></p></td></tr><tr><td style="width:12.88%; padding-right:5.4pt; padding-left:5.03pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">8 hrs</span></p></td><td style="width:16.28%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">7½ hrs</span><span> work time</span></p></td><td style="width:20.92%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">30 mins stationary</span><span> rest time, in blocks of </span><span style="font-weight:bold">15 continuous mins</span></p></td><td style="width:29.36%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>> </span><span style="font-weight:bold">7½ hrs</span><span> work time</span></p></td><td style="width:20.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>minor risk</span></p></td></tr><tr><td rowspan="2" style="width:12.88%; padding-right:5.4pt; padding-left:5.03pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">11 hrs</span></p></td><td rowspan="2" style="width:16.28%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">10 hrs</span><span> work time</span></p></td><td rowspan="2" style="width:20.92%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">60 mins stationary</span><span> rest time, in blocks of </span><span style="font-weight:bold">15 continuous mins</span></p></td><td style="width:29.36%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-family:Symbol, serif"></span><span> </span><span style="font-weight:bold">10¾ hrs</span><span> work time</span></p></td><td style="width:20.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>minor risk</span></p></td></tr><tr><td style="width:29.36%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>> </span><span style="font-weight:bold">10¾ hrs</span><span> work time</span></p></td><td style="width:20.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>substantial risk</span></p></td></tr><tr><td rowspan="8" style="width:12.88%; padding-right:5.4pt; padding-left:5.03pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">24 hrs</span></p><p class="Tabletext"><span></span></p></td><td rowspan="8" style="width:16.28%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">12 hrs</span><span> work time</span></p><p class="Tabletext"><span></span></p></td><td rowspan="2" style="width:20.92%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span></span></p></td><td style="width:29.36%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-family:Symbol, serif"></span><span> </span><span style="font-weight:bold">12¾ hrs</span><span> work time</span></p></td><td style="width:20.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>minor risk</span></p></td></tr><tr><td style="width:29.36%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>> </span><span style="font-weight:bold">12¾</span><span> but not > </span><span style="font-weight:bold">13¼ hrs</span><span> work time</span></p></td><td style="width:20.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>substantial risk</span></p></td></tr><tr><td rowspan="2" style="width:20.92%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span></span></p></td><td style="width:29.36%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>> </span><span style="font-weight:bold">13¼</span><span> but not > </span><span style="font-weight:bold">13½ hrs</span><span> work time</span></p></td><td style="width:20.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>severe risk</span></p></td></tr><tr><td style="width:29.36%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>> </span><span style="font-weight:bold">13½ hrs</span><span> work time</span></p></td><td style="width:20.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>critical risk</span></p></td></tr><tr><td rowspan="4" style="width:20.92%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">7 continuous hrs stationary</span><span> rest time</span></p></td><td style="width:29.36%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">7</span><span> but not < </span><span style="font-weight:bold">6¼ continuous hrs stationary</span><span> rest time</span></p></td><td style="width:20.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>minor risk</span></p></td></tr><tr style="height:40.3pt"><td style="width:29.36%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">6¼</span><span> but not < </span><span style="font-weight:bold">5¾ continuous hrs</span><span> stationary rest time</span></p></td><td style="width:20.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>substantial risk</span></p></td></tr><tr style="height:34.95pt"><td style="width:29.36%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">5¾</span><span> but not < </span><span style="font-weight:bold">5½ continuous hrs</span><span> stationary rest time</span></p></td><td style="width:20.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>severe risk</span></p></td></tr><tr style="height:29.55pt"><td style="width:29.36%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">5½ continuous hrs stationary</span><span> rest time</span></p></td><td style="width:20.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>critical risk</span></p></td></tr><tr style="height:62.45pt"><td rowspan="4" style="width:12.88%; padding-right:5.4pt; padding-left:5.03pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">7 days</span></p><p class="Tabletext"><span>(168 hrs)</span></p></td><td rowspan="4" style="width:16.28%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span></span></p></td><td rowspan="4" style="width:20.92%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">6 x night rest breaks</span></p><p class="Tabletext"><span></span></p></td><td style="width:29.36%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">7</span><span> but not < </span><span style="font-weight:bold">6¼ continuous hrs stationary</span><span> of that rest time per block</span><br><span></span></p><p class="Tabletext"><span></span></p></td><td style="width:20.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>minor risk</span></p><p class="Tabletext"><span></span></p></td></tr><tr style="height:14.5pt"><td style="width:29.36%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">6¼</span><span> but not < </span><span style="font-weight:bold">5¾ continuous hrs stationary</span><span> of that rest time per block</span></p></td><td style="width:20.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>substantial risk</span></p></td></tr><tr style="height:14.5pt"><td style="width:29.36%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">5¾</span><span> but not < </span><span style="font-weight:bold">5½ continuous hrs stationary</span><span> of that rest time per block</span></p></td><td style="width:20.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Severe risk</span></p></td></tr><tr style="height:14.5pt"><td style="width:29.36%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">5½ continuous hrs stationary</span><span> of that rest time per block</span></p></td><td style="width:20.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>critical risk</span></p></td></tr><tr style="height:14.5pt"><td rowspan="8" style="width:12.88%; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.03pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">28 days</span></p><p class="Tabletext"><span>(672 hrs)</span></p></td><td rowspan="8" style="width:16.28%; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">288 hrs</span><span> work time</span></p></td><td rowspan="4" style="width:20.92%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span></span></p></td><td style="width:29.36%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-family:Symbol, serif"></span><span> </span><span style="font-weight:bold">289½ hrs</span><span> work time</span></p></td><td style="width:20.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>minor risk</span></p></td></tr><tr style="height:26.85pt"><td style="width:29.36%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>> </span><span style="font-weight:bold">289½</span><span> but not > </span><span style="font-weight:bold">290½ hrs</span><span> work time</span></p></td><td style="width:20.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>substantial risk</span></p></td></tr><tr style="height:26.85pt"><td style="width:29.36%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>> </span><span style="font-weight:bold">290½</span><span> but not > </span><span style="font-weight:bold">291 hrs</span><span> work time</span></p></td><td style="width:20.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>severe risk</span></p></td></tr><tr style="height:9.4pt"><td style="width:29.36%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>> </span><span style="font-weight:bold">291 hrs</span><span> work time</span></p></td><td style="width:20.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>critical risk</span></p></td></tr><tr style="height:50.25pt"><td rowspan="4" style="width:20.92%; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-weight:bold">4 x 24 continuous hrs stationary</span><span> rest time</span></p></td><td style="width:29.36%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">24</span><span> but not < </span><span style="font-weight:bold">23¼ continuous hrs stationary</span><span> rest time per block</span></p></td><td style="width:20.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>minor risk</span></p></td></tr><tr style="height:50.25pt"><td style="width:29.36%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">23¼</span><span> but not < </span><span style="font-weight:bold">22¾ continuous hrs stationary</span><span> rest time per block</span></p></td><td style="width:20.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>substantial risk</span></p></td></tr><tr style="height:50.25pt"><td style="width:29.36%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">22¾</span><span> but not < </span><span style="font-weight:bold">22½ continuous hrs stationary</span><span> rest time per block</span></p></td><td style="width:20.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>severe risk</span></p></td></tr><tr style="height:34.05pt"><td style="width:29.36%; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>< </span><span style="font-weight:bold">22½ continuous hrs stationary</span><span> rest time per block</span></p></td><td style="width:20.56%; padding-right:5.03pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>critical risk</span></p></td></tr></tbody></table>
46 Standard hours—two‑up drivers
(1) The table at the end of this section sets out the standard hours for a two‑up driver of a regulated heavy vehicle, except when the two‑up driver is working under a BFM or AFM accreditation.
Note: Sections 50 and 52 explain the hours for two‑up drivers under a BFM and AFM accreditation.
(2) In any period mentioned in column 1, the two‑up driver:
(a) must not work for more than the work time mentioned in column 2; and
(b) must have the rest of that period off work, with at least the rest time mentioned in column 3.
Penalty: the penalty for the category of offence mentioned in column 4.
Note: Section 106 explains how an offence is specified as a minor risk offence, a substantial risk offence, a severe risk offence or a critical risk offence. Section 110 sets out the penalties for each category of offence.
(3) A party in the chain of responsibility for the regulated heavy vehicle must ensure the two‑up driver does not contravene subsection (2).
Penalty: the penalty for the category of offence mentioned in column 4.
Note: Section 106 explains how an offence is specified as a minor risk offence, a substantial risk offence, a severe risk offence or a critical risk offence. Section 110 sets out the penalties for each category of offence.
(4) An offence against subsection (2) or (3) is an offence of absolute liability.
(5) However, a party charged with an offence against subsection (2) or (3) has the benefit of the reasonable steps defence.
Note: Section 24 explains the reasonable steps defence.
(6) In this section, a reference to a column by number is a reference to the column of that number in the following table:
Standard hours—Two‑up drivers of a regulated heavy vehicle
(1) If an offence under standard hours could have been avoided if the driver had taken a short rest break, it is a defence for the driver to prove that:
(a) at the time when the driver was required to take the short rest break, there was no suitable rest place; and
(b) the driver took the short rest break at the next suitable rest place available after this time on the forward route of the driver’s journey up to a maximum of 45 minutes.
Note: Example: A driver fails to take a short rest break after 5¼ hours of work because there was no suitable rest place when the driver was scheduled to take his or her short rest break. Instead, the driver takes a short rest break after 5½ hours work at another place down the road.
(2) A short rest break means a rest of less than 1 hour.
(3) A suitable rest place means:
(a) a rest area designated for and able to be used by a regulated heavy vehicle; or
Note: Example: A designated rest area would not be able to be used if it was full or did not have sufficient capacity to accommodate the class of vehicle the driver was driving.
(b) a place at which a regulated heavy vehicle may be safely and lawfully parked; or
(c) a place declared by the regulations to be a suitable rest place;
but does not include a place declared by the regulations not to be a suitable rest place.
Division 3.3—BFM hours
48 What this Division is about
This Division sets out the work and rest times that apply to the driver of a regulated heavy vehicle, and that a party in the chain of responsibility must ensure a driver complies with, if the driver is working under, and complying with, a BFM accreditation or a prescribed bus accreditation (the BFM hours).
Note: Divisions 3.2 and 3.4 explain the hours for drivers under standard hours and AFM accreditation.
49 BFM hours—solo drivers
(1) The table at the end of this section sets out the BFM hours for a solo driver of a regulated heavy vehicle.
Note: Sections 44, 45 and 52 explain the hours for solo drivers under standard hours and AFM accreditation.
(2) In any period mentioned in column 1, the solo driver:
(a) must not work for more than the work time mentioned in column 2; and
(b) must have the rest of that period off work, with at least the rest time mentioned in column 3.
Penalty: the penalty for the category of offence mentioned in column 4.
Note: Section 106 explains how an offence is specified as a minor risk offence, a substantial risk offence, a severe risk offence or a critical risk offence. Section 110 sets out the penalties for each category of offence.
(3) A party in the chain of responsibility for the regulated heavy vehicle must ensure the solo driver does not contravene subsection (2).
Penalty: the penalty for the category of offence mentioned in column 4.
Note: Section 106 explains how an offence is specified as a minor risk offence, a substantial risk offence, a severe risk offence or a critical risk offence. Section 110 sets out the penalties for each category of offence.
(4) An offence against subsection (2) or (3) is an offence of absolute liability.
(5) However, a party charged with an offence against subsection (2) or (3) has the benefit of the reasonable steps defence.
Note: Section 24 explains the reasonable steps defence.
(6) In this section, a reference to a column by number is a reference to the column of that number in the following table:
BFM hours—Solo drivers of a regulated heavy vehicle
50 Defence for solo drivers relating to split rest breaks
If an offence under BFM hours could have been avoided if the driver had taken a 7 hours continuous rest break, it is a defence for the driver to prove that the driver took:
(a) a 6 hour continuous rest break and a 2 hour continuous rest break within the same 24 hour period (a split rest break); and
(b) the driver had not taken a split rest break in the previous 24 hour period.
Note: Example: A driver stops work to take a 7 hour continuous rest break after 14 hours of work, but cannot sleep, so the driver takes only 2 hours continuous rest and then drives on for a further 2 hours and takes a further 6 hours continuous rest at another place down the road.
51 BFM hours—two‑up drivers
(1) The table at the end of this section sets out the BFM hours for a two‑up driver of a regulated heavy vehicle.
Note: Sections 46 and 52 explain the hours for two‑up drivers under standard hours and AFM accreditation.
(2) In any period mentioned in column 1, the two‑up driver:
(a) must not work for more than the work time mentioned in column 2; and
(b) must have the rest of that period off work, with at least the rest time mentioned in column 3.
Penalty: the penalty for the category of offence mentioned in column 4.
Note: Section 106 explains how an offence is specified as a minor risk offence, a substantial risk offence, a severe risk offence or a critical risk offence. Section 110 sets out the penalties for each category of offence.
(3) A party in the chain of responsibility for the regulated heavy vehicle must ensure the two‑up driver does not contravene subsection (2).
Penalty: the penalty for the category of offence mentioned in column 4.
Note: Section 106 explains how an offence is specified as a minor risk offence, a substantial risk offence, a severe risk offence or a critical risk offence. Section 110 sets out the penalties for each category of offence.
(4) An offence against subsection (2) or (3) is an offence of absolute liability.
(5) However, a party charged with an offence against subsection (3) has the benefit of the reasonable steps defence.
Note: Section 24 explains the reasonable steps defence.
(6) In this section, a reference to a column by number is a reference to the column of that number in the following table:
BFM hours—Two‑up drivers of a regulated heavy vehicle
(1) The accreditation certificate issued for an AFM accreditation sets out the work and rest times that apply to the driver of a regulated heavy vehicle, and that a party in the chain of responsibility must ensure a driver complies with, if the driver is working under, and complying with, the accreditation (the AFM hours).
Note 1: Divisions 3.2 and 3.3 explain the hours for drivers under standard hours and BFM accreditation.
Note 2: Section 84(6) explains about the accreditation certificate issued for an AFM accreditation.
(2) In any period specified in the AFM accreditation, the driver:
(a) must not work for more than the maximum work time specified in the AFM hours; and
(b) must have at least the minimum rest time specified in the AFM hours.
Penalty: the penalty for the category of offence mentioned in column 3.
Note: Section 106 explains how an offence is specified as a minor risk offence, a substantial risk offence, a severe risk offence or a critical risk offence. Section 110 sets out the penalties for each category of offence.
(3) A party in the chain of responsibility for the regulated heavy vehicle must ensure the driver does not contravene subsection (2).
Penalty: the penalty for the category of offence mentioned in column 3.
Note: Section 106 explains how an offence is specified as a minor risk offence, a substantial risk offence, a severe risk offence or a critical risk offence. Section 110 sets out the penalties for each category of offence.
(4) An offence against subsection (2) or (3) is an offence of absolute liability.
(5) However, a party charged with an offence against subsection (3) has the benefit of the reasonable steps defence.
Note: Section 24 explains the reasonable steps defence.
(6) In this section, a reference to a column by number is a reference to the column of that number in the following table:
AFM hours—Penalties
Column 1Maximum work
Column 2Minimum rest time
Column 3Offence category
If a driver has exceeded the maximum work time by …
If a driver had had less than the minimum rest time by …
… the following category of offence is committed …
45 mins work time
45 mins rest time
minor risk
> 45 but 75 mins work time
> 45 but 75 mins rest time
substantial risk
> 75 but 90 mins work time
> 75 but 90 mins rest time
severe risk
> 90 mins work time
> 90 mins rest time
critical risk
Division 3.5—Changing work/rest hours option
53 Changing work/rest hours option
(1) A driver of a regulated heavy vehicle may drive under only 1 work/rest hours option at any 1 time.
Note: Section 36 explains what a work/rest hours option is.
(2) However, a driver may change from 1 work/rest hours option to a different work/rest hours option.
(3) A driver must not drive a regulated heavy vehicle after changing from 1 work/rest hours option to a different work/rest hours option unless:
(a) if the change is from standard hours or BFM hours—either:
(i) the driver is in compliance with all the work and rest time requirements of the work/rest hours option to which he or she has changed; or
(ii) the driver has had a reset rest break; and
(b) if the change is from AFM hours—the driver has had a reset rest break; and
Note: Examples
Note: If the driver is changing from BFM hours to standard hours, the driver may need to take a longer rest break before starting driving under the different work/rest hours option, or may need to take earlier rest breaks before working under the different work/rest hours option, or may choose to have a reset rest break instead.
Note: If the driver is changing from AFM hours, the driver must take a reset rest break before driving a regulated heavy vehicle under the different work/rest hours option.
(c) the driver complies with all other requirements of the work/rest hours option to which he or she has changed.
Note: Example: If the driver is changing to BFM or AFM hours, the driver should be inducted into the operator’s BFM or AFM fatigue management system.
Penalty: the penalty for a substantial risk offence.
(4) If a driver has had a reset rest break between changing from 1 work/rest hours option to a different work/rest hours option, the period to which the new work/rest hours option applies must be counted forward from the end of the reset rest break.
(5) The employer or prime contractor of a driver who changes from 1 work/rest hours option to a different work/rest hours option, the operator of any regulated heavy vehicle driven by the driver, and the driver’s scheduler, each must:
(a) ensure that the driver does not drive a regulated heavy vehicle after making the change unless the driver has complied with subsections (3) and (4); and
(b) take whatever action is necessary to ensure that the driver can comply with his or her obligations in relation to the change.
Penalty: the penalty for a severe risk offence.
Note: Section 106 explains how an offence is specified as \a severe risk offence. Section 110 sets out the penalties for each category of offence.
(6) An offence against subsection (3), (4) or (5) is an offence of absolute liability.
(7) However, a party charged with the offence has the benefit of the reasonable steps defence.
Note: Section 24 explains the reasonable steps defence.
(8) A reset rest break means a rest break of at least 48 hours continuous rest.
Part 4—Duties relating to record keeping
Division 4.1—Key concepts for this Part
54 What is 100 km work and 100+ km work
(1) The driver of a regulated heavy vehicle is engaged in 100 km work if the driver is driving in an area that has a radius of 100 km or less from the driver’s base.
(2) The driver of a regulated heavy vehicle is engaged in 100+ km work if the driver is driving in an area that has a radius of more than 100 km from the driver’s base.
Drafting note: Some jurisdictions may change 100 km to another number of kilometres.
55 What is a driver’s base and record location
(1) The base of a driver of a regulated heavy vehicle is:
(a) the place from which the driver normally works; or
(b) if the driver has not recorded the place specified in paragraph (a) in his or her work diary, the garage address of the vehicle.
(2) The garage address of a vehicle is:
(a) if the vehicle is normally kept at a depot when not in use—the principal depot at which it is kept; or
(b) in any other case—the home address of the registered operator.
(3) If a driver is a self‑employed driver and an employed driver at different times, the driver may have 1 base as a self‑employed driver and another base as an employed driver.
(4) If a driver has 2 or more employers, the driver may have a different base in relation to each employer.
(5) The record location of a driver is:
(a) a place which the record keeper has instructed the driver is the record location; or
(b) if the record keeper has not instructed the driver as specified in paragraph (a), the driver’s base.
Note: Record keeper is defined in section 62(2).
Division 4.2—Work diary requirements
56 Driver must carry work diary
(1) This section applies if a driver:
(a) is engaged in 100+ km work; or
(b) was engaged in 100+ km work in the last 28 days; or
(c) is driving under BFM or AFM hours; or
(d) was driving under BFM or AFM hours in the last 28 days.
(2) While driving a regulated heavy vehicle, the driver must keep in the vehicle a work diary that contains information for the last 28 days.
Court‑imposed penalty: $6 000.
Note 1: See section 59 for a defence against this subsection if the driver’s work diary is destroyed, lost, stolen or stops being operational.
Note 2: An authorised officer or police officer may require the driver to produce his or her work diary for inspection—see section 44 of the C & E Act.
(3) A work diary is:
(a) if the driver has used only a written work diary in the last 28 days—the written work diary; or
(b) if the driver was required to keep a supplementary record under section 59 in the last 28 days—the supplementary record and the written work diary; or
(c) if the driver has used only an electronic work diary in the last 28 days:
(i) the electronic work diary that the driver is currently using; and
(ii) printouts of the information in any other electronic work diary that the driver has used in the last 28 days that cover any periods during those 28 days that are not recorded in the electronic work diary that the driver is currently using; or
(d) if the driver has used a combination of a written work diary and an electronic work diary in the last 28 days:
(i) the written work diary; and
(ii) if the driver is currently using an electronic work diary—the electronic work diary; and
(iii) printouts of the information in any electronic work diary that the driver has used in the last 28 days that cover any periods during those 28 days that are not recorded in an electronic work diary that the driver is currently using.
(4) A written work diary is a written work diary issued to the driver under section 73 or under a corresponding fatigue law.
(5) An electronic work diary is an intelligent transport system, approved by the Authority under section 74, that:
(a) is fitted to a regulated heavy vehicle to monitor and record the work and rest times of a driver; and
(b) whenever an authorised officer or police officer requests the electronic work diary to be produced for inspection, is able to reproduce the information it contains in a form:
(i) that is readily accessible by the officer; and
(ii) that is reasonably capable of being understood by the officer; and
(iii) that can be used as evidence; and
(c) is operating in accordance with the manufacturer’s specifications and any conditions imposed by the Authority in its approval.
Note 1: Intelligent transport system is defined in the C & E Act.
Note 2: An electronic work diary may include or form part of an approved intelligent transport system under the IAP Act.
(6) Subsection (2) applies irrespective of the number of days in the last 28 days on which the driver spent work time in relation to a regulated heavy vehicle.
57 Information that driver must record in work diary
(1) This section lists the information that a driver must record in his or her work diary on each day on which the driver:
(a) engages in 100+ km work; or
(b) is working under BFM or AFM hours.
Note: Section 58 explains how the information must be recorded.
(2) The driver must continue to record the information until his or her next major rest break.
(3) Immediately after starting work on each of those days, the driver must record:
(a) the day of the week and date; and
(b) his or her name; and
(c) his or her current driver licence number, and the jurisdiction where the licence was issued; and
(d) whether he or she is working under standard hours (including whether the driver is working under standard hours for solo drivers of a bus), BFM hours or AFM hours; and
(e) if he or she is working under BFM or AFM hours—his or her operator’s BFM or AFM accreditation number; and
(f) details of his or her base and the time zone of the base, unless the driver has previously recorded those details and they are still current; and
(g) details of the driver’s record location, unless the driver has previously recorded those details and they are still current.
Court‑imposed penalty: $2 000.
Infringement notice penalty: $600.
(4) Immediately before or after each work/rest change on each of those days, the driver must record:
(a) the nature of the work/rest change; and
(b) the work time or rest time spent anywhere by the driver since the last work/rest change; and
(c) the time and place of the work/rest change; and
Note: An abbreviation may be used by a driver to refer to a place provided that it is capable of being understood by a reasonable person and is not designed to confuse or be misleading.
(d) the odometer reading at that time; and
(e) the registration number shown on the numberplate of each heavy motor vehicle that the driver drives; and
(f) if the driver is or becomes a two‑up driver—the following information about the other driver in the two‑up driving arrangement:
(i) the other driver’s name; and
(ii) the other driver’s driver licence number; and
(iii) the number of the other driver’s work diary; and
(iv) the participating jurisdiction that issued the other driver’s work diary.
Court‑imposed penalty: $2 000.
Infringement notice penalty: $600.
(5) Immediately before finishing work on each of those days, the driver must record the total of the work time and the total of the rest time that he or she has had that day.
Court‑imposed penalty: $2 000.
Infringement notice penalty: $600.
(6) An offence against this section is an offence of strict liability.
Note: A spelling mistake made by a driver in completing a work diary may be considered an honest and reasonable mistake of fact (and therefore provide a strict liability defence) if it is capable of being understood by a reasonable person and is not deliberate or designed to confuse or be misleading.
(7) However, if this section requires a driver to record information before beginning to engage in 100+ km work on a day, it is a defence for the driver to prove that, at the time of the offence:
(a) he or she was unaware that he or she would be engaging in 100+ km work on the day; and
(b) he or she recorded the information in his or her work diary as soon as practicable after becoming aware that he or she would be engaging in 100+ km work on the day.
58 How driver must record information in work diary
(1) A driver must record information in a written work diary in this way:
(a) the information for each day must be written on a separate daily sheet in a work diary that has not been cancelled by the Authority; and
(b) if the driver has a work/rest change—the information after the work/rest change must be written on a separate daily sheet in a work diary that has not been cancelled by the Authority; and
(c) information must be written on a daily sheet as required by the instructions in the work diary for recording information on daily sheets; and
(d) the daily sheets in the work diary must be used in turn from the front of the work diary; and
(e) each daily sheet must:
(i) be signed and dated by the driver; and
(ii) if the driver is driving under a two‑up arrangement—signed by the other two‑up driver; and
(f) information must be written on a daily sheet with enough pressure to ensure that a readable record of the information appears on the duplicate daily sheets; and
(g) other information must be written in the work diary as required by the instructions in the work diary for the recording of the information.
Court‑imposed penalty: $2 000.
Infringement notice penalty: $600.
(2) A driver must record information in an electronic work diary in the way required by:
(a) the Authority; or
(b) if the Authority does not make a requirement—the manufacturer’s instructions for recording information in the work diary.
Court‑imposed penalty: $2 000.
Infringement notice penalty: $600.
(3) A driver must record time in a work diary according to the time zone in the place where the driver’s base is, rather than the time zone in the place where the driver is.
Court‑imposed penalty: $2 000.
Infringement notice penalty: $600.
(4) An offence against this section is an offence of strict liability.
59 Destroyed, lost, stolen or malfunctioning work diaries
(1) It is a defence for an offence against section 56(2) for the driver to prove that:
(a) at the time of the offence, the driver’s work diary had been filled up, destroyed, lost or stolen or, in the case of an electronic work diary, was malfunctioning; and
(b) within 2 business days after the offence, the driver had complied with subsection (3) or (5); and
(c) until the driver was issued with a replacement work diary or the electronic work diary was in working order, the driver was recording the information required by section 57 in a supplementary record; and
(d) while driving a regulated heavy vehicle, the driver kept in the vehicle the supplementary record that contained information for the last 28 days.
(2) A supplementary record is a record that:
(a) is not made in a work diary; but
(b) is at least as accurate and understandable as, and is made in a similar form to, a record made in a work diary.
(3) As soon as practicable (but within 2 business days) after the driver becomes aware that the written work diary has been destroyed, lost or stolen, the driver must give the Authority written notice of that happening.
Court‑imposed penalty: $4 000.
Infringement notice penalty: $800.
(4) If a lost or stolen written work diary (the old work diary) is found by, or returned to, the driver after a replacement work diary has been issued to the driver, the driver must:
(a) immediately cancel any unused daily sheets in the old work diary by writing ‘cancelled’ in large letters across each unused sheet; and
(b) give the old work diary to the Authority as soon as practicable after the old work diary is found or returned.
Court‑imposed penalty: $4 000.
Infringement notice penalty: $800.
(5) If the driver of a regulated heavy vehicle becomes aware or reasonably suspects that an electronic work diary fitted to the vehicle is malfunctioning, the driver must inform his or her record keeper of that as soon as practicable (but within 2 business days).
Note: Section 62(2) explains who the record keeper is.
Court‑imposed penalty: $4 000.
Infringement notice penalty: $800.
(6) Also, in the case of an electronic work diary that includes or forms part of an intelligent transport system approved under the IAP Act, if a person on whom an obligation to report a malfunction of or tampering with a system under that Act becomes aware or reasonably suspects that the electronic work diary is malfunctioning, the person must inform the record keeper of that as soon as practicable (but within 2 business days).
Court‑imposed penalty: $4 000.
Infringement notice penalty: $800.
Note: Persons who have obligations to report a malfunction or tampering under the IAP Act include operators of IAP vehicles, drivers of IAP vehicles, IAP service providers, TCA and IAP auditors.
(7) As soon as is practicable after being informed under subsections (5) or (6), the record keeper must ensure that the electronic work diary is examined and brought into working order.
Court‑imposed penalty: $4 000.
Infringement notice penalty: $800.
(8) An offence against subsections (3), (4), (5), (6) or (7) is an offence of absolute liability.
(9) However, a person charged with the offence has the benefit of the reasonable steps defence.
Note: Section 24 explains the reasonable steps defence.
60 Malfunctioning odometers
(1) It is a defence for an offence against subsection 57(4)(d) for the driver to prove that:
(a) at the time of the offence, the odometer was malfunctioning; and
(b) within 2 business days after the offence, the driver had complied with subsection (3).
(2) The owner of a regulated heavy vehicle must ensure that an odometer that is fitted to the vehicle is maintained to the standard prescribed by the regulations.
Court‑imposed penalty: $4 000.
Infringement notice penalty: $800.
(3) If the driver of a regulated heavy vehicle becomes aware or reasonably suspects that an odometer fitted to the vehicle is malfunctioning, the driver must inform the following persons of that as soon as practicable (but within 2 business days):
(a) the owner of the vehicle; and
(b) if the driver is an employed driver—the driver’s employer; and
(d) the operator of the vehicle.
Court‑imposed penalty: $4 000.
Infringement notice penalty: $800.
(4) As soon as is practicable after being informed under subsection (3), the owner of the regulated heavy vehicle must ensure that the odometer is examined and brought into working order.
Court‑imposed penalty: $4 000.
Infringement notice penalty: $800.
(5) The driver’s employer and the operator of the vehicle must ensure that the owner complies with subsection (4).
Court‑imposed penalty: $4 000.
Infringement notice penalty: $800.
(6) An offence against subsections (2), (3), (4) or (5) is an offence of absolute liability.
(7) However, a person charged with the offence has the benefit of the reasonable steps defence.
Note: Section 24 explains the reasonable steps defence.
61 Duty on employers, prime contractors, operators and schedulers to ensure driver compliance
(1) These persons must ensure that a driver complies with the requirements of this Division:
(a) the employer of an employed driver; and
(b) the prime contractor of a self‑employed driver; and
(c) the operator of a regulated heavy vehicle that is being, or to be, driven by a driver; and
(d) the scheduler of a driver of, or of the goods or passengers being or to be transported on, a regulated heavy vehicle that is being, or to be, driven by a driver.
Court‑imposed penalty: $2 000.
Infringement notice penalty: $600.
(2) An offence against subsection (1) is an offence of absolute liability.
(3) However, a person charged with the offence has the benefit of the reasonable steps defence.
Note: Section 24 explains the reasonable steps defence.
Division 4.3—Records relating to drivers
62 Information that record keeper must record
(1) This section applies to each record keeper for a driver.
(2) A record keeper is:
(a) if an employed driver is working under standard hours—the employer; or
(b) if a self‑employed driver is working under standard hours—the self‑employed driver; or
(c) if an employed or self‑employed driver is working under an operator’s BFM or AFM accreditation—the operator.
(3) The record keeper must record this information:
(a) if the driver is engaging in 100 km work under standard hours:
(i) the driver’s name, driver licence number and contact details; and
(ii) the dates on which the driver drives a regulated heavy vehicle on a road; and
(iii) the total of the driver’s work and rest times on each day when the driver drives a regulated heavy vehicle; and
(iv) the total of the driver’s work and rest times for each week when the driver drives a regulated heavy vehicle; and
(v) the driver’s rosters and trip schedules, including details of driver changeovers; and
(vi) payment records relating to the driver, including timesheet records if the driver is paid according to time at work; and
(b) if the driver is engaging in 100+ km work or is working under a BFM or AFM accreditation:
(i) the driver’s work diary and contact details; and
(ii) the driver’s rosters and trip schedules, including details of driver changeovers; and
(iii) payment records relating to the driver, including timesheet records if the driver is paid according to time at work.
Court‑imposed penalty: $2 000.
Infringement notice penalty: $600.
(4) If the driver is working under a BFM or AFM accreditation, the record keeper must also record this information:
(a) any information required to be kept as a condition of the BFM or AFM accreditation; and
(b) any information required to be kept under the BFM or AFM standards and business rules.
Court‑imposed penalty: $2 000.
Infringement notice penalty: $600.
Note: If the record keeper is an operator working under a BFM or AFM accreditation, he or she also has a duty under sections 81 and 87 to keep other records.
(5) The record keeper must keep a record that is required to be kept under this section for 3 years after it is created.
Court‑imposed penalty: $2 000.
Infringement notice penalty: $600.
(6) The record keeper must keep the records at the record location so that they are reasonably accessible to an authorised officer or police officer.
Court‑imposed penalty: $2 000.
Infringement notice penalty: $600.
Note 1: Section 55(2) explains what the record location is.
Note 2: An authorised officer or police officer may direct a record keeper to produce a record required to be kept by the record keeper—see section 44 of the C & E Act.
(7) The record keeper must keep the records in way that ensures:
(a) they are readable and reasonably capable of being understood; and
(b) are capable of being used as evidence.
Court‑imposed penalty: $2 000.
Infringement notice penalty: $600.
Note: Example: A record keeper should keep copies of records in storage facilities that will ensure the records do not degrade or could become unreadable. This could include scanning relevant hard copy records and retaining them in electronic format if they remain clearly readable.
(8) The driver must give:
(a) a copy of his or her work diary and any supplementary records made under section 59 for a day to the record keeper; or
(b) if the driver has 2 or more record keepers on that day, a copy of the work diary and any supplementary records to each record keeper,
within 21 days after that day.
Court‑imposed penalty: $2 000.
Infringement notice penalty: $600.
(9) The record keeper must ensure that the driver complies with subsection (8).
Court‑imposed penalty: $2 000.
Infringement notice penalty: $600.
(10) If a driver changes record keepers, the driver must, before driving a regulated heavy vehicle for the new record keeper, give the new record keeper a copy of the information recorded in any work diary that the driver was required to keep in the 28 days before the change occurred that relates to that 28 day period.
Court‑imposed penalty: $2 000.
Infringement notice penalty: $600.
(11) If subsection (10) imposes a duty on a driver, the new record keeper must not require or allow the driver to drive a regulated heavy vehicle on the new record keeper’s behalf unless the driver has complied with subsection (10).
Court‑imposed penalty: $2 000.
Infringement notice penalty: $600.
(12) If the driver’s work diary is an electronic work diary, the record keeper must give the driver a printout of the information recorded in the work diary for any relevant day on which the driver was using the electronic work diary before the driver stops using the electronic work diary.
Court‑imposed penalty: $2 000.
Infringement notice penalty: $600.
(13) An offence against this section is an offence of absolute liability.
(14) However, a person charged with the offence has the benefit of the reasonable steps defence.
Note: Section 24 explains the reasonable steps defence.
Division 4.4—False work records etc.
63 Definitions for this Division
In this Division:
entry, in a work record, includes an annotation made in the record by an authorised officer or police officer.
work record means a work diary or a record required to be kept under section 62.
64 False entries
(1) A person must not record an entry in a work record or a supplementary record that the person knows, or reasonably ought to know, is false or misleading in any significant respect.
Court‑imposed penalty: $10 000.
(2) An offence against this section is an offence of strict liability.
Drafting note: This section may not be needed in jurisdictions that already have a relevant offence provision that covers false entries.
65 Keeping 2 work diaries simultaneously prohibited
(1) A driver must not have in his or her possession more than 1 written work diary in which information can be recorded on a daily sheet.
Court‑imposed penalty: $6 000.
Note: A driver does not commit an offence against this subsection if the driver has another written work diary in his or her possession in which information can not be recorded because all the daily sheets are used up.
(2) A driver must not record information for the same period in more than 1 work diary.
Court‑imposed penalty: $10 000.
Note: Example: The driver must not record information for the same period in a written work record as well as in an electronic work diary.
Note: However, it is not an offence for the driver to record in written diary information about the work done in the morning for Mrs A, and to record in electronic work diary information about the work done in the afternoon for Mr B.
(3) An offence against this section is an offence of strict liability.
66 Possession of purported work records etc prohibited
(1) A driver or record keeper must not have in his or her possession something purporting to be a work record if the driver or record keeper knows, or reasonably ought to know, that it is not a work record.
Court‑imposed penalty: $10 000.
(2) An offence against this section is an offence of strict liability.
67 Defacing or changing work records etc prohibited
(1) A person must not deface or change an entry in a work record that the person knows, or reasonably ought to know, is correct.
Court‑imposed penalty: $10 000.
Note 1: The making of false or misleading statements in a work record is prohibited under section 183 of the C & E Act (False or misleading statements or records provided to Authority or officials).
Note 2: Section 62(7) requires a record keeper to ensure that records are kept in a way that ensures they remain readable and reasonably capable of being understood and that they are capable of being used as evidence.
(2) An offence against this section is an offence of strict liability.
68 False representation of work records prohibited
(1) A person must not falsely represent that a work record, or an entry in a work record, was made by the person.
Court‑imposed penalty: $10 000.
(2) An offence against this section is an offence of strict liability.
69 Making entries in someone else’s work records prohibited
(1) A person must not make an entry in someone else’s work record.
Court‑imposed penalty: $10 000.
(2) Subsection (1) does not apply to:
(a) a person who is the nominee of a driver and makes the entry in the driver’s work diary as required by a work diary exemption applying to the driver; or
(b) an authorised officer or police officer; or
(c) the person’s fellow two‑up driver, to the extent of the two‑up driver’s signature.
(3) An offence against this section is an offence of strict liability.
70 Destruction of certain work records prohibited
(1) If a work record is required under this Part to be kept for a particular period by a person, the person or someone else must not destroy the record before the end of the period.
Court‑imposed penalty: $10 000.
Note: Section 62(7) requires a record keeper to ensure that records are kept in a way that ensure that they remain readable and reasonably capable of being understood and that they are capable of being used as evidence.
(2) An offence against this section is an offence of strict liability.
71 Tampering with electronic work diaries prohibited
(1) A person must not tamper with the operation of an electronic work diary.
Court‑imposed penalty: $10 000.
(2) A record keeper and a driver must ensure that a person does not tamper with the operation of an electronic work diary.
Court‑imposed penalty: $10 000.
(3) If an electronic work diary being used by a driver includes or forms part of an intelligent transport system approved under the IAP Act, a person on whom an obligation to report a malfunction of or tampering with the system under that Act must ensure that a person does not tamper with the operation of an electronic work diary under this Act.
Court‑imposed penalty: $10 000.
Note 1: Electronic work diary is defined in section 56(5).
Note 2: Persons who have obligations to report a malfunction or tampering under the IAP Act include operators of IAP vehicles, drivers of IAP vehicles, IAP service providers, TCA and IAP auditors.
(4) A person tampers with an electronic work diary if the person engages in conduct that:
(a) results in the diary malfunctioning; or
(b) may result in the diary malfunctioning; or
(c) alters any of the data recorded by the diary; or
(d) may alter any of the data recorded by the diary.
(5) Subsection (1) does not apply to:
(a) a person who is repairing a malfunctioning electronic work diary in accordance with section 59(7); or
(b) a person who is authorised by the Authority; or
(c) an authorised officer or police officer.
(6) An offence against subsection (1), (2) or (3) is an offence of absolute liability.
(7) However, a person charged with an offence against subsection (2) has the benefit of the reasonable steps defence.
Note: Section 24 explains the reasonable steps defence.
Division 4.5—Written work diaries
72 Form of written work diaries
(1) A written diary must be in a format that allows information to be recorded in the format prescribed by the regulations.
(2) A written work diary must contain:
(a) a unique identifying number for the work diary; and
(b) sequentially numbered sheets for making daily records; and
(c) provision for recording information on the daily sheets; and
(d) a duplicate of any application form in the work diary; and
(e) 2 duplicates of each daily sheet; and
(f) instructions for use of the work diary.
(3) A written work diary may contain an application form for the issue of another work diary.
(4) If a written work diary is used as required by the instructions in the work diary, information written on a daily sheet or application form will be automatically copied on to any duplicates of the sheet or form in the diary.
73 Issue of written work diaries
(1) A driver who wants to be issued with a written work diary (including a replacement work diary) must apply in person to the Authority.
(2) The application must be in the form that is prescribed by the regulations.
(3) If the application form is for a written work diary to replace a written work diary that has been previously issued to the driver (the existing written work diary), the driver must give the existing written work diary to the Authority with the application, unless the existing written work diary has been destroyed, lost or stolen.
(4) If the driver gives the existing written work diary to the Authority, the Authority must:
(a) cancel any unused daily sheets in the written work diary; and
(b) return the written work diary to the driver when the Authority issues the replacement written work diary to the driver.
(5) If the application is for a written work diary to replace a work diary that has been destroyed, lost or stolen, the application must:
(a) state the work diary’s number and that it has been destroyed, lost or stolen; and
(b) briefly outline the circumstances of the destruction, loss or theft.
(6) The Authority must issue a written work diary to a driver if the driver:
(a) identifies himself or herself by showing the driver’s current driver licence to the Authority; and
(b) pays an application fee prescribed by the regulations.
(7) If the Authority issues a written work diary to a driver, it must note the date, time and place of issue on the written work diary.
(8) The Authority may make other notes on the written work diary.
(9) If the Authority issues a written work diary to a driver from another jurisdiction in the participating zone, it must notify the corresponding Authority of that jurisdiction of:
(a) the identifying number for the work diary;
(b) the driver’s name and licence number; and
(c) the time, date and place of issue.
Division 4.6—Electronic work diaries
74 Approval of electronic work diaries
(1) A person who wants to have a particular type of electronic work diary approved by the Authority must apply to the Authority.
(2) The application must be in the form that is prescribed by the regulations.
(3) The Authority may approve an electronic work diary if it provides the same information that is required for a written work diary under section 55.
Note: An electronic work diary may include or form part of an intelligent transport system approved under the IAP Act.
(4) In approving a type of electronic work diary, the Authority must have regard to any advice given to it, and to any guidelines issued, by the Fatigue Authorities Panel in relation to electronic diaries.
(5) The regulations may make further provision about the approval of electronic work diaries.
75 Variation or cancellation of approval—on application
(1) An application for variation or cancellation of the approval of an electronic work diary must be made to the Authority in writing.
(2) An application a variation must state clearly what variation is sought and outline the reasons for the application.
(3) The Authority, by written notice given to the applicant, may require the applicant to give the Authority any necessary additional information.
(4) The Authority must decide the application as soon as practicable after the Authority receives it.
(5) If the Authority decides to grant the application, the Authority must give the applicant written notice of that decision.
(6) The variation or cancellation takes effect:
(a) when written notice of the decision is given to the applicant; or
(b) at a later time stated in that written notice.
(7) If the Authority does not make the decision sought by the applicant, the Authority must also give the applicant a written notice that states:
(a) the Authority’s decision; and
(b) the reasons for the decision; and
(c) that the applicant may apply to have the decision reconsidered.
76 Variation or cancellation of approval—without application
(1) The Authority may vary an approval, without receiving an application, if the Authority is reasonably satisfied that 1 of the following grounds exists:
(a) that the application for the approval was false or misleading in a material respect, but the circumstances do not require its cancellation;
(b) that:
(i) since the approval was given, a change has happened in relation to something that the Authority must consider in deciding whether to give an approval of that kind; and
(ii) the approval would have been given as it is proposed to be varied if the change had happened before the approval was given.
(2) The Authority may cancel an approval, without receiving an application, if the Authority is reasonably satisfied that 1 of the following grounds exists:
(a) that the application for the approval was false or misleading in a material respect;
(b) that:
(i) since the approval was given, a change has happened in relation to something that the Authority must consider in deciding whether to give an approval of that kind; and
(ii) the approval would not have been given if the change had happened before the approval was given.
(3) If the Authority is satisfied that a ground exists to vary or cancel an approval, the Authority must give the person who holds the approval a written notice that:
(a) states the proposed variation or cancellation; and
(b) states the ground for the proposed variation or cancellation; and
(c) outlines the facts and other circumstances forming the basis for the ground; and
(d) invites the person to state in writing, within a specified time of at least 14 days after the notice is given to the person, why the approval should not be varied or cancelled.
(4) If, after considering any written statement made within the specified time, the Authority is reasonably satisfied that a ground exists to take the proposed action, the Authority may:
(a) if the proposed action is to vary the approval in a stated way—vary the approval in that way; and
(b) if the proposed action is to cancel the approval—cancel the approval, or vary the approval in any way.
(5) The Authority must give the person written notice of the Authority’s decision.
(6) If the Authority decides to vary or cancel the approval, the Authority must also give the person a written notice that states:
(a) the reasons for the decision; and
(b) that the person may apply to have the decision reconsidered.
(7) The variation or cancellation takes effect:
(a) when written notice of the decision, and the reasons for the decision, is given to the person; or
(b) at a later time stated in that written notice.
Part 5—Accreditation and exemptions
Division 5.1—Accreditation
Subdivision 5.1.1—What is an accreditation
77 What is an accreditation
(1) An accreditation is a BFM or AFM accreditation.
(2) A reference to:
(a) an accreditation includes a reference to the accreditation as varied; and
(b) a variation of an accreditation includes a reference to a variation of a condition of the accreditation by addition, omission or substitution.
Subdivision 5.1.2—BFM accreditation
78 Applying for BFM accreditation
(1) The operator of a regulated heavy vehicle who wants BFM accreditation must apply to the Authority.
(2) The application must be made in the form approved by the Authority and include:
(a) the operator’s name and contact details; and
(b) a statement by the operator that the operator has a BFM fatigue management system (which is explained in the next subsection) to ensure compliance with the BFM standards and business rules; and
(c) a statement from an auditor of a class prescribed by the regulations that the auditor considers that the operator’s BFM fatigue management system will ensure compliance with the BFM standards and business rules; and
(d) any other information required by the Authority in accordance with the BFM standards and business rules.
(3) A BFM fatigue management system is an operator’s management system for ensuring compliance with the BFM standards and business rules, including by:
(a) recording the name, driver licence number and contact details of each driver who is currently under the operator’s BFM accreditation; and
(b) ensuring that each of those drivers is in a fit state:
(i) to safely perform required duties; and
(ii) to meet any specified medical requirements; and
(c) ensuring that each of those drivers:
(i) has been inducted into the operator’s BFM fatigue management system; and
(ii) has been informed of the BFM hours; and
(d) ensuring that anyone employed in the operator’s business, who has responsibilities relating to scheduling or managing the fatigue of those drivers:
(i) has been inducted into the operator’s BFM fatigue management system; and
(ii) has been informed of the BFM hours.
(4) The application must also be accompanied by a declaration, declared to be made by the operator after taking all reasonable steps to ascertain the following information, of the operator’s knowledge of whether:
(a) in the 5 years immediately before the application was made, any of these persons has contravened this Act, a corresponding fatigue law, or an Australian road law:
(i) the operator; and
(ii) an associate of the operator; and
if so, details of the contravention; and
(b) any of these persons has had their BFM or AFM accreditation varied or cancelled:
(i) the operator; and
(ii) an associate of the operator; and
if so, details of the variation or cancellation.
Note 1: Australian road law is defined in section 6(1) of the C & E Act.
Note 2: Associate is defined in section 13 of the C & E Act.
(5) The application must also be accompanied by an application fee prescribed by the regulations.
(6) The Authority, by written notice to the operator, may require the operator to give the Authority any necessary additional information.
Drafting note: It is intended that intellectual property in any information provided as part of a BFM application remains with the applicant and is treated as such, subject to the privacy laws and administrative procedures of implementing jurisdictions. Accrediting agencies may wish to reinforce this by an appropriate statement on accreditation application forms.
79 Granting BFM accreditation
(1) The Authority must decide an application for BFM accreditation as soon as practicable after the Authority receives the application.
(2) The Authority may grant BFM accreditation to the operator of a regulated heavy vehicle if it is satisfied:
(a) the operator is able to comply with this Act; and
(b) the operator is a suitable person to be granted BFM accreditation.
(3) For this purpose, the Authority may take into account anything it considers is relevant, including for example:
(a) any details provided under section 78(4); or
(b) the results of any audits carried out on the operator’s BFM fatigue management system, or proposed BFM fatigue management system.
Note: Section 78(3) explains what a BFM fatigue management system is.
(4) In granting BFM accreditation to the operator of a regulated heavy vehicle, the Authority must have regard to any advice given to it, and to any guidelines issued, by the Fatigue Authorities Panel in relation to BFM accreditation.
(5) If the Authority grants the BFM accreditation, it must give the operator an accreditation certificate in the form prescribed by the regulations that certifies the operator has been granted BFM accreditation and sets out the details of that accreditation.
(6) The accreditation takes effect:
(a) when the accreditation certificate is given to the applicant; or
(b) at a later time stated in the certificate.
(7) The BFM accreditation applies for the period (not longer than 3 years) stated in the BFM accreditation certificate.
(8) If the Authority refuses to grant a BFM accreditation, it must give the applicant a written notice that:
(a) states the reasons for the refusal.
(b) tells the operator that the operator may apply to have the decision reconsidered.
80 Conditions of BFM accreditation
(1) Every BFM accreditation is subject to the condition that the operator must comply with the BFM standards and business rules.
(2) A BFM accreditation is also subject to any other conditions stated in the accreditation certificate or prescribed by the regulations.
Note: Examples of possible conditions
• a condition that a named driver cannot drive under the operator’s BFM accreditation vehicle for a specified period
• a condition that a named employee or associate of the operator cannot be involved in the BFM operation system ever, or for a specified period
Note 1: A driver is required to record his or her operator’s BFM accreditation number under section 57(3)(e).
Note 2: An authorised officer or police officer may direct an operator to produce a record required to be kept by the operator—see section 44 of the C & E Act.
(3) A person who is granted a BFM accreditation must not contravene a condition of the BFM accreditation.
Court‑imposed penalty: $6 000.
(4) An offence against subsection (3) is an offence of strict liability.
81 Information that operator must record
(1) The operator must ensure that each driver who is to work under the BFM accreditation is:
(a) inducted into the operator’s BFM fatigue management system; and
(b) meets the requirements relating to drivers under the operator’s BFM accreditation.
Note: Section 78(3) explains what a BFM fatigue management system is.
Court‑imposed penalty: $6 000.
(2) The operator must keep:
(a) a current list of the drivers under the BFM accreditation; and
(b) records demonstrating that the driver:
(i) has been inducted into the operator’s BFM fatigue management system; and
(ii) meets requirements relating to drivers under the operator’s BFM accreditation; and
(c) any other records prescribed by the regulations.
Note 1: Section 78(3) explains what a BFM fatigue management system is.
Note 2: An authorised officer or police officer may direct an operator to produce a record required to be kept by the operator—see section 44 of the C & E Act.
Court‑imposed penalty: $6 000.
(3) The records must be kept in accordance with the requirements of Division 4.3.
(4) An offence against subsections (1) or (2) is an offence of strict liability.
82 Operator must advise of change or end of accreditation
(1) If an operator who has a BFM accreditation changes or ceases to hold that accreditation, the operator must inform any driver or scheduler who may be affected by that change or cessation of the fact that the change or cessation has happened, as soon as practicable after the change or cessation happens.
Penalty: the penalty for a substantial risk offence.
Note: Section 106 explains how an offence is specified as a substantial risk offence. Section 110 sets out the penalties for each category of offence.
(2) An offence against subsection (1) is an offence of strict liability.
Subdivision 5.1.3—AFM accreditation
83 Applying for AFM accreditation
(1) The operator of a regulated heavy vehicle who wants AFM accreditation must apply to the Authority.
(2) The application must be made in the form approved by the Authority and include:
(a) the operator’s name and contact details; and
(b) the operator’s AFM fatigue management proposal (which is explained in the next subsection); and
Note: An AFM fatigue management proposal could be based on a specific company operation, on a template developed by an industry group, or on a commercial basis.
(c) a statement by the operator that the operator has an AFM fatigue management system (which is explained in the subsection (4)) to ensure compliance with the AFM standards and business rules; and
(d) a statement from an auditor of a class prescribed by the regulations that the auditor considers that the operator’s AFM fatigue management system will ensure compliance with the AFM standards and business rules; and
(e) any other information required by the Authority in accordance with the AFM standards and business rules.
(3) An AFM fatigue management proposal must set out:
(a) the proposed work and rest hours limits for drivers of those vehicles; and
(b) the risks involved with working under the proposed work and rest hours limits, and the proposed countermeasures that are designed to manage those risks; and
(c) the other details required under the AFM standards and business rules.
(4) An AFM fatigue management system is an operator’s management system for ensuring compliance with the AFM standards and business rules, including by:
(a) recording the name, driver licence number and contact details of each driver who is currently under the operator’s AFM accreditation; and
(b) ensuring that each of those drivers is in a fit state:
(i) to safely perform required duties; and
(ii) to meet any specified medical requirements; and
(c) ensuring that each of those drivers:
(i) has been inducted into the operator’s AFM fatigue management system; and
(ii) has been informed of the AFM hours under the operator’s AFM accreditation; and
(d) ensuring that anyone employed in the operator’s business, who has responsibilities relating to scheduling or managing the fatigue of those drivers:
(i) has been inducted into the operator’s AFM fatigue management system; and
(ii) has been informed of the AFM hours under the operator’s AFM accreditation.
(5) The application must also be accompanied by a declaration, declared to be made by the operator after taking all reasonable steps to ascertain the following information, of the operator’s knowledge of whether:
(a) in the 5 years immediately before the application was made, any of these persons has contravened this Act, a corresponding fatigue law, or an Australian road law:
(i) the operator; and
(ii) an associate of the operator; and
if so, details of the contravention; and
(b) any of these persons has had their BFM or AFM accreditation varied or cancelled:
(i) the operator; and
(ii) an associate of the operator; and
if so, details of the variation or cancellation.
Note 1: Australian road law is defined in section 6(1) of the C & E Act.
Note 2: Associate is defined in section 13 of the C & E Act.
(6) The application must also be accompanied by an application fee prescribed by the regulations.
(7) The Authority, by written notice to the operator, may require the operator to give the Authority any necessary additional information.
Drafting note: It is intended that intellectual property in any information provided as part of an AFM application remains with the applicant and is treated as such, subject to the privacy laws and administrative procedures of implementing jurisdictions. Accrediting agencies may wish to reinforce this by an appropriate statement on accreditation application forms.
84 Granting AFM accreditation
(1) The Authority must decide an application for AFM accreditation as soon as practicable after the Authority receives the application.
(2) The Authority may grant AFM accreditation to the operator of a regulated heavy vehicle if it is satisfied that:
(a) the operator is able to comply with this Act; and
(b) the operator is a suitable person to be granted AFM accreditation; and
(c) the driver fatigue management practices (including proposed work and rest hours) stated in the operator’s AFM fatigue management proposal would, if followed, safely manage the risk of driver fatigue; and
(d) the operator and drivers are likely to follow those practices consistently and effectively.
(3) For this purpose, the Authority may take into account anything it considers is relevant, including for example:
(a) any details provided under section 83(5); or
(b) the results of any audits carried out on the operator’s AFM fatigue management system, or proposed AFM fatigue management system; or
Note: Section 83(4) explains what an AFM fatigue management system is.
(c) for the purposes of assessing the operator’s AFM fatigue management proposal—any relevant body of fatigue knowledge.
Note: Section 83(3) explains what an AFM fatigue management proposal is.
(4) In granting AFM accreditation to the operator of a regulated heavy vehicle, the Authority must have regard to any advice given to it, and to any guidelines issued by, the Fatigue Authorities Panel in relation to AFM accreditation.
(5) In approving the work and rest hours limits that are applicable to a particular AFM accreditation, the Authority must not set limits that:
(a) allow a driver to work more than the work time allowed, or to have less than the rest time required, in the AFM outer limits; or
(b) that the Authority considers would be unsafe, having regard to the operator’s AFM fatigue management proposal and any relevant body of fatigue knowledge.
Note: Section 83(3) explains what an AFM fatigue management proposal is.
(6) If the Authority grants the AFM accreditation, it must give the operator an accreditation certificate in the form prescribed by the regulations that:
(a) certifies that the operator has been granted AFM accreditation; and
(b) sets out the details of that accreditation, including the work and rest hours limits that apply to the accreditation.
(7) The accreditation takes effect:
(a) when the accreditation certificate is given to the applicant; or
(b) at a later time stated in the certificate.
(8) The AFM accreditation applies for the period (not longer than 3 years) stated in the AFM accreditation certificate.
(9) If the Authority refuses to grant an AFM accreditation, it must give the applicant a written notice that:
(a) states the reasons for the refusal; and
(b) tells the operator that the operator may apply to have the decision reconsidered.
(10) The following table sets out the AFM outer limits for a driver of a regulated heavy vehicle.
AFM outer limits
Column 1Total period
Column 2Maximum work time
Column 3Minimum rest time
In any period of ...
... a driver must not work for more than ...
... and must have the rest of that period off work, with at least ...
24 hrs
16 hrs work time
6 continuous hrs stationary rest time (or in the case of a two‑up driver, rest in an approved sleeper berth), or8 hrs stationary rest time (or in the case of a two‑up driver, rest in an approved sleeper berth) taken in no more than 2 blocks
14 days(336 hrs)
154 hrs work time
2 x 7 continuous hrs stationary rest time between 10 pm on a day and 8 am on the next day, using the time zone of the base of the driver
28 days(672 hrs)
288 hrs work time
4 x 24 continuous hrs stationary rest time
85 Conditions of AFM accreditation
(1) Every AFM accreditation is subject to the condition that the operator must comply with the AFM standards and business rules.
(2) An AFM accreditation is also subject to any other conditions stated in the accreditation certificate or prescribed by the regulations.
Note: Examples of possible conditions
• a condition that a named driver cannot drive under the operator’s AFM accreditation vehicle for a specified period
• a condition that a named employee or associate of the operator cannot be involved in the AFM operation system ever, or for a specified period
• a condition that requires additional records to be kept, and audits to be performed, to ensure that the driver fatigue management practices (including work and rest hours) stated in the operator’s AFM operations manual are followed consistently and effectively
(3) A person who is granted an AFM accreditation must not contravene a condition of the AFM accreditation.
Court‑imposed penalty: $6 000.
(4) An offence against subsection (3) is an offence of strict liability.
86 Driver must carry AFM accreditation details
(1) A driver who is driving under an operator’s AFM accreditation must have recorded in his or her work diary a statement of the AFM hours allowed under the accreditation.
Note: Example: A driver may record a statement of the AFM hours allowed under the accreditation by stapling a printout of the relevant hours in the specified part of his or her work diary.
Note 1: A driver is already required to record his or her operator’s AFM accreditation number under section 57(3)(e).
Note 2: An authorised officer or police officer may direct a driver to produce a record required to be kept by the driver—see section 44 of the C & E Act.
Court‑imposed penalty: $6 000.
(2) The operator must ensure each of the drivers driving under the operator’s AFM accreditation do not contravene subsection (1).
Court‑imposed penalty: $6 000.
(3) An offence against subsection (1) and (2) is an offence of strict liability.
87 Information that operator must record
(1) The operator must ensure that each driver who is currently under the AFM accreditation is:
(a) inducted into the operator’s AFM fatigue management system and informed of the AFM hours under the operator’s AFM accreditation; and
(b) meets the requirements relating to drivers under the operator’s AFM accreditation.
Note: Section 83(4) explains what an AFM fatigue management system is.
Court‑imposed penalty: $6 000.
(2) The operator must keep:
(a) a current list of the drivers under the AFM accreditation; and
(b) records that demonstrate the driver:
(i) has been inducted into the operator’s AFM fatigue management system and informed of the AFM hours under the operator’s AFM accreditation; and
(ii) meets requirements relating to drivers under the particular accreditation; and
(c) any other records prescribed by the regulations.
Court‑imposed penalty: $6 000.
Note 1: Section 83(4) explains what an AFM fatigue management system is.
Note 2: An authorised officer or police officer may direct an operator to produce a record required to be kept by the operator—see section 44 of the C & E Act.
(3) The records must be kept in accordance with the requirements of Division 4.3.
(4) An offence against subsections (1) or (2) is an offence of strict liability.
88 Operator must advise of change or end of accreditation
(1) If an operator who has an AFM accreditation changes or ceases to hold that accreditation, the operator must inform any driver or scheduler who may be affected by that change or cessation of the fact that the change or cessation has happened, as soon as practicable after the change or cessation happens.
Penalty: the penalty for a substantial risk offence.
Note: Section 106 explains how an offence is specified as a substantial risk offence. Section 110 sets out the penalties for each category of offence.
(2) An offence against subsection (1) is an offence of strict liability.
Division 5.2—Exemptions
Subdivision 5.2.1—Exemptions for emergency services
89 Exemptions for emergency services
(1) This section applies in an emergency.
(2) An emergency is an event (or an anticipated event) that:
(a) endangers, or may endanger, life, property or the environment; or
(b) has disrupted, or may disrupt, communications, energy, water supply or sewerage services; or
(c) is declared to be an emergency or disaster by:
(i) the Commonwealth or a State or Territory; or
(ii) a Commonwealth, State or Territory authority responsible for managing responses to emergencies or disasters.
Note: Examples of an emergency
Note: Fire, explosion and natural disaster.
(3) A person who is acting for an emergency service and who has any time‑critical duties on the way to, or during, an emergency is exempted from the following provisions:
(a) Part 3 (Duties relating to work and rest times);
(b) Part 4 (Duties relating to record keeping), except Division 4.4 (False work records etc).
Note: The listed provisions do not include the provisions imposing duties to avoid and prevent fatigue.
(4) A person who is returning from attending an emergency is not exempted from the provisions listed in subsection (3).
(5) An emergency service is any organisation that has a statutory responsibility to respond to an emergency and includes:
(a) an ambulance service; and
(b) an emergency auxiliary; and
(c) a fire brigade, including a volunteer fire brigade; and
(d) a police service or force; and
(e) a disaster or emergency organisation of the Commonwealth or a State or Territory; and
(f) an organisation prescribed as an emergency service by the regulations.
Subdivision 5.2.2—Other exemptions
90 What is an exemption
(1) An exemption is a work/rest hours exemption or a work diary exemption.
(2) A reference to:
(a) an exemption includes a reference to the exemption as varied; and
(b) a variation of an exemption includes a reference to a variation of a condition of the exemption by addition, omission or substitution.
91 Work/rest hours exemptions
(1) The Authority may grant a work/rest hours exemption to allow a person to whom the exemption applies to work under the work and rest times stated in the exemption.
(2) The Authority may grant a work/rest hours exemption to:
(a) an employer, prime contractor or a self‑employed driver who applies for the exemption; or
(b) a class of persons, without the need for anyone to apply for the exemption.
(3) An employer, prime contractor or self‑employed driver who wants a work/rest hours exemption must apply to the Authority in accordance with section 93.
(4) The application must also:
(a) name any drivers, or describe any class of drivers, to be covered by the exemption; and
(b) state the proposed work and rest times that would be followed by the applicant and the drivers working under the exemption; and
(c) if the proposed work and rest times could be accommodated within a BFM or AFM accreditation:
(i) state the driver fatigue management practices that would be followed by the applicant and the drivers working under the exemption if it were given; and
(ii) show that the practices would safely manage fatigue risks; and
(iii) show that a BFM or AFM accreditation would be unreasonable for the proposed operation in safely managing fatigue risks; and
(d) if the proposed work and rest times exceed the maximum work time or are less than the minimum rest time in the AFM outer limits:
(i) state the driver fatigue management practices that would be followed by the applicant and the drivers working under the exemption if it were given; and
(ii) show that the practices would safely manage the fatigue risks.
(5) The Authority may grant a work/rest hours exemption in relation to a person or class of persons if the Authority considers that:
(a) compliance with the provision would be an unreasonable restriction on operations conducted by the person or class of persons; and
(b) the driver fatigue management practices that are to apply to the person or class of person under the exemption would, if followed, safely manage fatigue risks; and
(c) the person or class of persons, and drivers, are likely to follow those practices consistently and effectively; and
(d) if the proposed work and rest times could be accommodated within BFM or AFM accreditation—BFM or AFM accreditation would be unreasonable for the proposed operation in safely managing fatigue risks.
Note: If the Authority grants an exemption that includes maximum work times greater than, or minimum rest times less than, those specified in the AFM outer limits, the Authority may but need not require the holder of the exemption to have a current AFM accreditation as a condition of the exemption.
Drafting note: Some jurisdictions may not adopt this provision.
92 Work diary exemptions
(1) The Authority may grant a work diary exemption to exempt a driver from complying with Division 4.2 (Work diary requirements).
(2) The Authority may grant a work diary exemption to the following persons who apply for the exemption:
(a) a driver who is driving under standard hours; or
(b) the employer of an employed driver who is driving under standard hours.
(3) The application must be made to the Authority in accordance with section 93.
(4) The application must also:
(a) nominate a person (the nominee) to make written work records for the driver; and
(b) must be accompanied by the nominee’s written agreement to the nomination.
(5) The Authority may grant a work diary exemption if the Authority is satisfied:
(a) the driver cannot make records in the driver’s work diary because of inadequate English literacy; and
(b) the nominee will be able to make records that are no less complete or accurate than records made in accordance with Division 4.2.
93 Applying for an exemption
(1) An application for an exemption must be made to the Authority in writing.
(2) The application must state:
(a) the applicant’s full name; and
(b) the type of exemption being sought; and
(c) if the applicant is a driver—the address of the driver’s base and record location; and
(d) if the applicant is an employer—the address of the record location for the drivers to be covered by the application; and
(e) the period for which the exemption is sought; and
(f) any conditions to which the exemption is sought to be subject.
(3) The Authority, by written notice to the applicant, may require the applicant to give the Authority any necessary additional information.
94 Granting an exemption
(1) The Authority must decide an application for an exemption as soon as practicable after the Authority receives the application.
(2) If the Authority decides to grant an exemption, the Authority must:
(a) give the applicant a written exemption; or
(b) if the Authority grants the exemption to a class of persons—publish the exemption in the Gazette.
(3) An exemption takes effect:
(a) when the exemption is given to the applicant; or
(b) at a later time stated in the exemption; or
(c) in the case of a work/rest hours exemption granted to a class of persons—on the date that the exemption is published in the Gazette.
(4) The exemption applies for the period (not longer than 3 years) stated in the exemption.
(5) An exemption may be given subject to a condition stated in the exemption.
(6) A person to whom an exemption is granted must not contravene a condition of the exemption.
Court‑imposed penalty: $6 000.
(7) If the Authority decides not to grant the exemption, the Authority must give the applicant a written notice that states:
(a) the Authority’s decision; and
(b) the reasons for the decision; and
(c) that the applicant may apply to have the decision reconsidered.
(8) An offence against subsection (6) is an offence of strict liability.
Division 5.3—Variation, suspension or cancellation of accreditation or exemptions
Subdivision 5.3.1—On application of holder
95 Variation or cancellation of accreditation or exemption—on application
(1) An application for variation or cancellation of an accreditation or exemption granted to an individual must be made to the Authority in writing.
(2) The application must:
(a) if the application is for a variation—state clearly what variation is sought and outline the reasons for the application; and
(b) be accompanied by the accreditation certificate or exemption.
(3) The Authority, by written notice given to the applicant, may require the applicant to give the Authority any necessary additional information.
(4) The Authority must decide the application as soon as practicable after the Authority receives it.
(5) If the Authority decides to grant the application, the Authority must give the applicant written notice of that decision.
(6) The variation or cancellation takes effect:
(a) when written notice of the decision is given to the applicant; or
(b) at a later time stated in that written notice.
(7) If the Authority does not make the decision sought by the applicant, the Authority must also give the applicant a written notice that states:
(a) the Authority’s decision; and
(b) the reasons for the decision; and
(c) that the applicant may apply to have the decision reconsidered.
Subdivision 5.3.2—Without application of holder
96 Grounds for variation—without application
(1) The Authority may vary an accreditation or exemption granted to an individual, without receiving an application, if the Authority is reasonably satisfied that 1 of the following grounds exists:
(a) that the application for the accreditation or exemption was false or misleading in a material respect, but the circumstances do not require its cancellation; or
(b) that a person to whom the accreditation or exemption applies is not suitable to be a person to whom the accreditation applies without variation; or
(c) that the person has contravened this Act, a corresponding fatigue law or any regulations made under this Act or a corresponding fatigue law; or
(d) in the case of an exemption, that:
(i) since the exemption was given, a change has happened in relation to something the Authority must consider in deciding whether to give an exemption of that kind; and
(ii) the exemption would have been given as it is proposed to be varied if the change had happened before the exemption was given.
(2) This section does not apply to:
(a) an application for variation of an accreditation or exemption; or
(b) a work/rest hours exemption granted to a class of persons.
97 Grounds for cancellation—without application
(1) The Authority may cancel an accreditation or exemption granted to an individual, without receiving an application, if the Authority is reasonably satisfied that 1 of the following grounds exists:
(a) that the application for the accreditation or exemption was false or misleading in a material respect; or
(b) that a person to whom the accreditation or exemption applies is not suitable to be a person to whom the accreditation or exemption applies; or
(c) that the person has contravened this Act, a or any regulations made under this Act or a corresponding fatigue law; or
(d) in the case of an exemption, that:
(i) since the exemption was given, a change has happened in relation to something the Authority must consider in deciding whether to give an exemption of that kind; and
(ii) the exemption would not have been given if the change had happened before the exemption was given.
(2) This section does not apply to:
(a) an application for variation of an accreditation or exemption; or
(b) a work/rest hours exemption granted to a class of persons.
98 Variation or cancellation of accreditation or individual exemption—without application
(1) This section applies if the Authority is satisfied that a ground exists to vary or cancel an accreditation or exemption under section 96 or 97.
(2) The Authority must give the person who holds the accreditation or exemption a written notice that:
(a) states the proposed variation or cancellation; and
(b) states the ground for the proposed variation or cancellation; and
(c) outlines the facts and other circumstances forming the basis for the ground; and
(d) invites the person to state in writing, within a specified time of at least 14 days after the notice is given to the person, why the accreditation or exemption should not be varied or cancelled.
(3) If, after considering any written statement made within the specified time, the Authority is reasonably satisfied that a ground exists to take the proposed action, the Authority may:
(a) if the proposed action is to vary the accreditation or exemption in a stated way—vary the accreditation or exemption in that way; and
(b) if the proposed action is to cancel the accreditation or exemption—cancel the accreditation or exemption or vary the accreditation or exemption in any way.
(4) The Authority must give the person written notice of the Authority’s decision.
(5) If the Authority decides to vary or cancel the accreditation or exemption, the Authority must also give the person a written notice that states:
(a) the reasons for the decision; and
(b) that the person may apply to have the decision reconsidered.
(6) The variation or cancellation takes effect:
(a) when written notice of the decision, and the reasons for the decision, is given to the person; or
(b) at a later time stated in that written notice.
99 Immediate suspension of accreditation or an individual exemption in public interest
(1) The Authority may immediately suspend an accreditation or exemption granted to an individual, by giving a written notice to the holder of the accreditation or exemption, if the Authority considers it necessary in the interest of public safety.
Note: Example of public safety interest
Note: There is evidence that an operator is failing to comply with this Act on a systemic basis, or in such a severe way that the operator’s continued operation under the accreditation or exemption would pose a risk to the public.
(2) The accreditation or exemption may be suspended until the earlier of the following:
(a) the end of 56 days after written notice is given under subsection (1);
(b) the Authority gives the operator a written notice under section 98(2).
(3) This section applies despite section 98.
(4) This section does not apply to a work/rest hours exemption granted to a class of persons.
100 Variation or cancellation of an exemption granted to a class of persons
(1) This section applies to a work/rest hours exemption granted to a class of persons.
(2) The Authority may vary or cancel the exemption by publishing a notice in the Gazette if the Authority considers that the exemption is no longer necessary or justified.
Subdivision 5.3.3—Return of accreditation certificate or exemption
101 Return of accreditation certificate or exemption
(1) If an accreditation certificate or exemption granted to an individual is varied or cancelled, the Authority may, by written notice, require the person to return the accreditation certificate or exemption to the Authority.
(2) The person must comply with the notice within 7 days after the notice is given to the person or, if a longer period is stated in the notice, within the longer period.
Court‑imposed penalty: $6 000.
(3) If the accreditation or exemption has been varied, the Authority must give the person a replacement accreditation certificate or exemption.
Division 5.4—Replacement of lost etc accreditation certificates or exemptions
102 Replacement of lost etc accreditation certificates or exemptions
(1) If an accreditation certificate or exemption is defaced, destroyed, lost or stolen, the person who is the holder of the certificate or exemption must apply to the Authority for a replacement accreditation certificate or exemption.
(2) If the Authority is satisfied that the accreditation certificate or exemption given to the person has been defaced, destroyed, lost or stolen, the Authority must give the person a replacement accreditation certificate or exemption as soon as practicable.
(3) If the Authority decides not to give a replacement accreditation certificate or exemption to the person, the Authority must give the person a written notice that states:
(a) the reasons for the decision; and
(b) that the person may apply to have the decision reconsidered.
Division 5.5—Offences relating to accreditation etc
103 Offence to falsely represent that accreditation etc held
(1) A person must not falsely represent:
(a) that he or she holds an accreditation or exemption that he or she does not hold; or
(b) that he or she is working under an accreditation or exemption that he or she is not entitled to work under.
Court‑imposed penalty: $10 000.
(2) A person must not possess a document that falsely purports to be an accreditation or exemption.
Court‑imposed penalty: $6 000.
(3) An offence against subsections (1) or (2) is an offence of strict liability.
104 Offences relating to auditors
(1) A person must not falsely represent that he or she is an auditor of a class prescribed by the regulations.
Court‑imposed penalty: $10 000.
(2) A person must not falsely represent that he or she has audited an operator’s BFM or AFM fatigue management system.
Court‑imposed penalty: $10 000.
(3) A person must not falsely represent the opinion of an auditor in relation to an operator’s BFM or AFM fatigue management system.
Court‑imposed penalty: $10 000.
(4) An offence against this section is an offence of strict liability.
Note: In addition to these offences, sections 183 and 184 of the C & E Act may also apply to auditors. These provisions make it an offence to provide false or misleading information to the Authority, an authorised officer or a police officer or for a responsible person to provide false or misleading information to another responsible person. The definition of responsible person includes persons, such as auditors, appointed to have monitoring responsibilities under an accreditation scheme.
Part 6—Compliance and enforcement provisions
Division 6.1—Risk categorisation of offences
105 Categories of offences
Offences against this Act that, at the time when they are committed, involve a direct risk of death or injury or of damage to property are classified in this Act as either minor risk offences, substantial risk offences, severe risk offences or critical risk offences, depending on their nature.
106 How is an offence category specified
(1) For the purposes of this section, an offence is specified as a particular category of offence either:
(a) directly by a statement or other indication in the provision creating the offence that the offence is an offence of that particular type; or
(b) by a statement that the penalty for the offence is the penalty for that type of offence.
(2) A minor risk offence is an offence that is specified as a minor risk offence in this Act.
(3) A substantial risk offence is an offence that is specified as a substantial risk offence in this Act.
(4) A severe risk offence is an offence that is specified as a severe risk offence in this Act.
(5) A critical risk offence is an offence that is specified as a critical risk offence in this Act.
Note: Section 110 sets out the penalties that apply to the offences referred to in this section.
Division 6.2—Enforcement powers
107 Powers of authorised officers or police officers in relation to fatigue and work/rest hours breaches
(1) This section applies if an authorised officer or police officer finds a driver has committed an offence against section 28 (Driver’s duty to avoid driver fatigue) or Part 3 (Duties relating to work and rest times).
(2) The authorised officer or police officer:
(a) in the case of a minor risk or a substantial risk offence that relates to work/rest hours:
(i) if the driver has not had the required rest time—may direct the driver to take rest immediately, or to take additional rest at his or her next required rest break, to compensate for the shortfall; or
(ii) if the driver has worked more than the permitted work time—may direct the driver to work reduced hours in the next relevant period to compensate for the excess; or
Note: Section 106 explains how an offence is specified as a minor risk offence or a substantial risk offence.
(b) in the case of a severe risk or critical risk offence that relates to work/rest hours:
(i) if the driver has not had the required rest time—must direct the driver to take rest immediately to compensate for the shortfall; or
(ii) if the driver has not had the required night rest time—must direct the driver to take the next night rest time to compensate for the shortfall; or
(iii) if the driver has worked more than the permitted work time—must direct the driver to work reduced hours in the next relevant period to compensate for the excess; or
Note: Section 106 explains how an offence is specified as a severe risk offence or a critical risk offence.
(c) if the officer believes, on reasonable grounds, that the driver is impaired by fatigue:
(i) may direct the driver not to work for a specified period of time; or
(ii) if the officer has observed the driver driving in a way that the officer believes, on reasonable grounds, is dangerous—may direct the driver to stop driving immediately, and may authorise a qualified person to move the vehicle to a suitable rest place.
Note 1: Qualified is defined in section 23 of the C & E Act.
Note 2: Suitable rest place is defined in section 47(3).
(d) if the driver fails to produce his or her work diary—may direct the driver not to work for a 24‑hour period.
Note: These powers are additional to the powers of an authorised officer or police officer under the C & E Act.
(3) In the case of a severe risk or critical risk offence, the authorised officer or police officer may allow the driver to delay complying with a direction under subsection (2)(b)(i) or (iii), for a period of up to 1 hour, if the officer reasonably believes that:
(a) there is no suitable rest place nearby, and it would be reasonably safe to allow the driver to continue to drive for that period; or
(b) it is necessary for the driver to be given time to attend to, or to secure, the load on the vehicle, before taking rest.
(4) For the purposes of section 175 of the C & E Act, a direction made by an authorised officer or police officer under this section is taken to be prescribed as an administrative action.
Note: Section 175 of the C & E Act provides for mutual recognition of prescribed administrative actions, such as directions given by enforcement officers.
Note: Example: If an enforcement officer from one jurisdiction gives a direction to a driver not to work for a specified period of time under this section, that direction continues to have effect even if the driver passes into another jurisdiction.
Drafting note: Special provisions recognising this particular enforcement power may need to be drafted to give effect to this provision in non‑participating jurisdictions.
(5) A provision of the C & E Act that applies to the way in which a power may be exercised by an authorised officer or police officer applies in relation to this section, unless the provision is only able to be applied in relation to a breach of a mass, dimension or load restraint requirement under the C & E Act.
Note: Example: Section 185 of the C & E Act provides for the amendment or revocation of directions or conditions by an authorised officer or police officer.
108 Other enforcement powers
(1) Nothing in this Act has the effect of preventing or excluding the use of any other powers of enforcement available to an authorised officer or police officer in relation to a road law.
(2) A power available to an authorised officer or a police officer under the C & E Act may be applied in relation to an offence under this Act, unless the power is only able to be applied in relation to a breach of a mass, dimension or load restraint requirement under the C & E Act.
(3) For the purposes of this Act, the power to inspect a heavy vehicle under section 36 of the C & E Act includes the power to download information from the engine management system and any intelligent transport system, including an electronic work diary, fitted to the vehicle.
109 Duty on authorised officers and police officers to annotate driver’s work diary
If an authorised officer or police officer stops a driver, before allowing the driver to proceed he or she must make an annotation in the driver’s work diary stating:
(a) the officer’s name and identification number; and
(b) the time, date and place at which the officer stopped the driver; and
(c) the length of time that the driver was stopped while the officer exercised his or her enforcement powers.
Division 6.3—Penalties
110 Penalties
(1) This section applies to a provision prescribing a penalty for an offence against this Act.
(2) A penalty is:
(a) a court‑imposed penalty; or
(b) an infringement notice penalty; or
(c) a demerit point.
Drafting note: A demerit point may be applied under jurisdiction law as an administrative sanction.
(3) A court‑imposed penalty is the maximum fine for an individual who is found guilty of the offence by a court.
(4) An infringement notice penalty is the fine payable for the offence under an infringement notice issued to an individual.
(5) The penalty for a category of offence in relation to a failure to comply with the standard hours, BFM hours or AFM hours is set out in the following table:
Drafting note: Penalty levels proposed are indicative only.
(7) A demerit point under this section may be applied for an offence only if the person who committed the offence did so as a driver.
(8) For any offence under this Act the court‑imposed penalty for a body corporate is 5 times the court‑imposed penalty for an individual.
Drafting note: This provision may not be required in certain jurisdictions that have this provision in Acts of general application.
(9) A sanction available under the C & E Act may be applied in relation to an offence under this Act, unless the sanction is only able to be applied in relation to a breach of a mass, dimension or load restraint requirement under the C & E Act.
111 Provisions relating to first offences and second or subsequent offences
(1) This section determines whether, under section 110, an offence is:
(a) a first offence; or
(b) a second or subsequent offence.
(2) A person is found guilty of a second or subsequent offence if, and only if, the occasion when the second or subsequent offence occurred:
(a) was different from the occasion when the first offence for which the person was found guilty occurred; and
(b) was within 3 years, or another period prescribed by the regulations, of the occasion of the first offence.
(3) The order in which the offences were committed is irrelevant.
(4) It is also irrelevant whether the offences were of the same risk category or of different risk categories.
(5) If the court is satisfied that a person is guilty of an offence but can not work out (from the information available to the court) whether the offence is a first offence for which the person was found guilty, the court may only impose a penalty for the offence as if it were a first offence.
(6) When determining whether a person has previously been found guilty of an offence under this Act, the court must have regard to a finding of guilt for an offence committed under corresponding provisions of a corresponding fatigue law.
(7) The regulations may make further provision about determining what is, or is not, to be treated as a corresponding provision of a corresponding fatigue law.
Part 7—Decision‑making provisions
Division 7.1—What is a decision
112 What is a decision
A decision means any administrative action taken under this Act to approve, grant, issue, vary, suspend or cancel an instrument, concession, privilege or right.
Note: Section 175 of the C & E Act defines an administrative action.
Division 7.2—Who may make a decision
113 Authority may delegate powers
(1) The Authority may, by a written instrument of delegation, delegate all or any of its powers to make a decision under this Act (other than this power of delegation) to:
(a) specified persons; or
(b) persons of a specified class.
(2) A delegate may sub‑delegate a delegated power, but only if and to the extent that the instrument of delegation authorises the sub‑delegation of the power.
(3) Nothing in this section affects any other Act or law by or under which powers may be delegated by the Authority or by or under which powers of the Authority may otherwise be exercised by other persons.
Note: Section 17 of the C & E Act allows the Authority to delegate its functions under that Act. Section 14 of that Act allows the Authority to appoint authorised officers.
114 Fatigue Authorities Panel
(1) In this Act, a reference to the Fatigue Authorities Panel (the Panel) is a reference to a body constituted and operating in accordance with this section or a corresponding provision of a corresponding fatigue law.
(2) The Panel must consist of these members:
(a) the Authority; and
(b) the corresponding Authorities of each other participating jurisdiction; and
(c) the Department of the Commonwealth that deals with road transport, unless that Department has indicated in writing that it does not wish to be a member.
(3) The function of the Panel is to consider matters referred to it by any member of the Panel under this Part or a corresponding provision of a corresponding fatigue law.
(4) The Panel may hold a meeting to consider or decide those matters.
(5) The Panel may only decide a matter at a meeting if a majority of its members are participating in the meeting either:
(a) as described in subsection (6); or
(b) by casting a written vote as permitted by subsection (8).
(6) A member of the Panel may participate in a meeting:
(a) by attending the meeting in person; or
(b) by another means of communication, including for example, by phone or internet conferencing.
(7) Each member of the Panel may cast 1 vote on a matter to be decided by the Panel.
(8) A member may cast his or her vote by a written vote received by the Panel:
(a) before a decision is taken on the matter at a meeting; or
(b) at that meeting.
(9) The decision of the Panel on a matter is to be the majority of votes on the matter.
(10) However, if a vote is tied, the question being voted on fails.
(11) The Panel may invite a person to a meeting to advise, inform, or make a submission to, the Panel.
(12) The following persons may attend a meeting of the Panel to observe, or make a submission to, the Panel:
(a) an authority of a non‑participating jurisdiction that performs functions and exercises powers under a law of that jurisdiction about heavy vehicle driver fatigue; and
(b) the National Transport Commission; and
(c) any other authority or agency agreed to or invited by the Panel.
(13) The regulations may make further provision about:
(a) the functions and procedures of the Panel; and
(b) determining what is, or is not, to be treated as a corresponding provision of a corresponding fatigue law.
Division 7.3—Referral and mutual recognition of decisions
115 Referral of matters to the Panel and other Authorities
(1) This section applies if:
(a) the Authority proposes to make a decision that may, or is intended to, have application in:
(i) another participating jurisdiction; or
(ii) more than 1 other participating jurisdiction; and
(b) the decision relates to:
(i) the grant of an AFM accreditation or an exemption; or
(ii) the variation, suspension or cancellation of a BFM accreditation, AFM accreditation or an exemption, if the original grant of the accreditation or exemption was made by a corresponding Authority; or
(iii) any other matter prescribed by the regulations.
(2) The Authority must inform the Panel of the proposed decision.
(3) The Panel may make a recommendation to the Authority about the proposed decision.
(4) If the Panel gives the Authority written notice of the recommendation and the reasons for the recommendation, the Authority must take note of the recommendations of the Panel when making the decision.
(5) The Authority may refer any other matter under this Act to the Panel for consideration.
116 Mutual recognition of certain decisions
(1) This section applies to a decision of a corresponding Authority that is in force, and was made:
(a) under a provision of a corresponding fatigue law that corresponds to a provision of the following sections:
(i) section 73 (Issue of written work diaries); or
(ii) section 74 (Approval of electronic work diaries); or
(iii) section 79 (Granting BFM accreditation); or
(iv) a section prescribed by the regulations; or
(b) about the variation or cancellation of the approval of an electronic work diary; or
(c) about the variation, suspension or cancellation of a BFM accreditation, AFM accreditation or exemption that was originally granted by the corresponding Authority; or
(d) acting in accordance with a recommendation of the Panel, about the variation, suspension or cancellation of a BFM accreditation, AFM accreditation or exemption.
(2) Except for circumstances that do not exist in this jurisdiction, the decision has effect in this jurisdiction as if it were a decision made by the Authority.
(3) The regulations may make further provision about mutual recognition of decisions made in another participating jurisdiction.
117 Mutual recognition of other decisions
(1) This section applies to:
(a) a decision of a corresponding Authority to which section 116 does not apply that is in force in the other jurisdiction; or
(b) a recommendation of the Panel in accordance with section 115.
(2) Except for circumstances that do not exist in this jurisdiction, the Authority may decide whether the decision or recommendation is to have effect in this jurisdiction as if it were a decision made by the Authority.
(3) A decision by the Authority under subsection (2) must be made in writing and is subject to any variations or conditions specified by the Authority.
Division 7.4—Notification and recording of decisions
118 Notifying other Authorities of decisions
(1) This section applies if the Authority makes a decision about:
(a) the grant, variation, suspension or cancellation of a BFM accreditation, AFM accreditation or exemption; or
(b) the approval, variation of an approval, or cancellation of an approval, of an electronic work diary.
(2) The Authority must give written notice of the decision to every corresponding Authority in the participating zone.
(3) If the Authority decides not to follow a recommendation of the Panel, or decides to apply a recommendation of the Panel subject to variations or conditions, the Authority must give written notice of the reasons for its decision to every corresponding Authority in the participating zone.
119 Register of decisions
(1) The Authority must keep a register of decisions currently in force in this jurisdiction if the decision:
(a) was made by the Authority under this Act; or
(b) has effect in this jurisdiction under section 116 and the Authority has received written notice of that decision under section 118; or
(c) has effect in this jurisdiction under section 117.
(2) The Authority must record the cancellation or variation of any recorded decision in the register.
(3) The regulations may make further provision about the recording of decisions.
Division 7.5—Reconsideration and review of decisions
120 Decisions that may be reconsidered and reviewed
The following decisions of the Authority are decisions to which this Part applies:
Item
Section under which decision made
Brief description of decision
1
79
decision not to grant BFM accreditation
2
79, 84 or 94
decision to give an accreditation or exemption for less than 3 years or the period sought by the applicant
3
80
decision to give a BFM accreditation subject to a condition (other than a statutory condition) not sought by the applicant
4
84
decision not to grant AFM accreditation
5
85
decision to give a AFM accreditation subject to a condition (other than a statutory condition) not sought by the applicant
6
94
decision not to give a work diary exemption
7
94
decision not to give a work/rest hours exemption (or not to give the exemption for an employed driver sought to be covered by the exemption)
8
94
decision to give an exemption subject to a condition not sought by the applicant
9
95
decision not to vary or cancel an accreditation or exemption on application
10
98
decision to vary or cancel an accreditation or exemption except on application.
11
102
decision not to give a replacement accreditation certificate or exemption
121 Reconsideration of decisions
(1) A person affected by a decision to which this Part applies (an initial decision) may ask the Authority in writing to reconsider the decision.
(2) The request must be made within:
(a) 28 days after the person, or someone else affected by the decision, was told of the initial decision, and given reasons for the decision, by the Authority; or
(b) any longer period allowed by the Authority.
(3) The request must state the decision sought by the person and outline why the decision should be made.
(4) The Authority must reconsider the initial decision and:
(a) confirm the decision; or
(b) vary the decision; or
(c) set the decision aside and substitute a new decision.
(5) If the decision was made in accordance with a recommendation of the Panel or another Authority, the Authority must inform the Panel or other Authority of the decision that the Authority proposes to make.
(6) The Panel or other Authority may make a recommendation to the Authority about the proposed decision.
(7) The Panel or other Authority must give the Authority written notice of the recommendation and the reasons for the recommendation within 21 days after being informed of the proposed decision.
(8) The Authority must take note of the recommendations of the Panel or other Authority when making the decision.
(9) Within 28 days after receiving the request, the Authority must give the person a written notice that states:
(a) the result of the reconsideration; and
(b) if the Authority does not make the decision sought by the person—the reasons for the reconsidered decision.
(10) The regulations may make further provision about the reconsideration of decisions.
122 Review of decisions by <relevant jurisdiction tribunal or court>
Drafting note: Administrative review procedures before a competent tribunal or court may already be provided in jurisdiction legislation.
Part 8—Miscellaneous
Division 8.1—Transitional provisions
123 TFMS applications
(1) This section applies if, immediately before the commencement of this section:
(a) the Authority had an application for TFMS registration from a driver or employer; and
(b) the Authority had not yet decided the application.
(2) The application is taken to have been withdrawn.
124 TFMS to BFM
(1) This section applies if, immediately before the commencement of this section:
(a) a driver was registered as a participant in TFMS or a corresponding TFMS; and
(b) the Authority had an application for BFM accreditation from an operator; and
(c) the Authority had not yet decided the application.
(2) Until the Authority decides the application, the driver may drive for the operator according to BFM hours.
Note: BFM hours are set out in Division 3.3 (BFM hours).
(3) If the Authority refuses to grant the application, the driver may drive for the operator according to standard hours.
(4) If the Authority grants the application, the driver may continue to drive for the operator according to BFM hours.
125 TFMS to AFM
(1) This section applies if, immediately before the commencement of this section:
(a) a driver was registered as a participant in TFMS or a corresponding TFMS; and
(b) the Authority had an application for AFM accreditation from an operator; and
(c) the Authority had not yet decided the application.
(2) Until the Authority decides the application, the driver may drive for the operator according to BFM hours (not AFM hours).
Note: BFM hours and AFM hours are set out in Division 3.3 (BFM hours) and Division 3.4 (AFM hours).
(3) If the Authority refuses to grant the application, the driver may drive for the operator according to standard hours.
(4) If the Authority grants the application, the driver may drive for the operator according to the AFM hours.
126 TFMS otherwise lapses
Subject to sections 124 and 125, TFMS lapses after the commencement of this Act.
127 Applications for reconsideration by Authority
(1) This section applies if, immediately before the commencement of this section:
(a) the Authority had an application for reconsideration of a decision; and
(b) the Authority had not yet decided the application.
(2) The Authority may decide the application as if this Act had not commenced.
128 Applications for review by <relevant jurisdiction tribunal or court>
(1) This section applies if, immediately before the commencement of this section:
(a) the <relevant jurisdiction tribunal or court> had an application for review of a decision made in this jurisdiction; and
(b) the <relevant jurisdiction tribunal or court>had not yet decided the application.
(2) The <relevant jurisdiction tribunal or court> may decide the application as if this Act had not commenced.
129 Exemption applications
(1) This section applies if, immediately before the commencement of this section:
(a) the Authority had:
(i) an application for a limited driving hours exemption or logbook exemption; or
(ii) an application for variation or cancellation of a limited driving hours exemption or logbook exemption; and
(b) the Authority had not yet decided the application.
(2) The application is taken to have been made, and may be decided, under this Act.
130 Existing exemptions continue
(1) This section applies if, immediately before the commencement of this section, a limited driving hours exemption or logbook exemption applied to a person under the old Regulations.
(2) The exemption is taken to have been made under this Act.
(3) The exemption continues to apply:
(a) for the period stated in the exemption; or
(b) if the exemption does not state a period, for 3 years after the exemption took effect.
131 Prosecution of offences that are undecided
(1) This section applies if:
(a) before the commencement of this section, a person had committed an offence against the old Regulations; and
(b) immediately before the commencement of this section, the person:
(i) had not been charged with the offence; or
(ii) had been charged with the offence, but the charge had not been decided.
(2) The person may be prosecuted, or continue to be prosecuted, for the offence as if this Act had not commenced.
132 Existing logbooks
(1) A logbook issued under the old Regulations may continue to be used by a driver working under standard hours for 90 days after the commencement of this section as if Part 4 of the old Regulations continued to apply.
(2) A driver cannot work under BFM or AFM hours unless he or she has surrendered his or her logbook and has obtained a work diary.
133 Repeal
The <insert name of jurisdiction legislation implementing the model legislation set out in Schedule 1 of the National Transport Commission (Road Transport Legislation – Driving Hours Regulations) Regulations 2006> is repealed.
Division 8.2—Regulations
134 Regulations
(1) The <insert appropriate authority> may make regulations prescribing matters:
(a) required or permitted to be prescribed by this Act; or
(b) necessary or convenient to be prescribed for giving effect to this Act.
(2) The regulations may incorporate or adopt by reference, with or without modifications, provisions of other legislation or other documents.
(3) The regulations may create offences and specify the maximum pecuniary penalty that may be imposed in relation to the offences.
(4) The maximum penalty that may be specified in the regulations in relation to an offence against the regulations must not exceed:
(a) $10 000 for an individual or $50 000 for a corporation; and
(b) in the case of an offence committed by a driver—4 demerit points.
Subdivision Subdivision 5.1.2 - National Transport Commission (Model Legislation - Heavy Vehicle Driver Fatigue) Regulations 2007 - BFM accreditation | Zoe