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

This regulatory advice provides guidance on how to comply with obligations under section 26E of the Heavy Vehicle National Law (HVNL).

Who is this advice for?

Any person who could directly or indirectly influence the behaviour of a heavy vehicle driver or a party in the Chain of Responsibility (CoR) regarding speed, fatigue, work and rest hours.

What are my legal obligations?

It is your responsibility to ensure transport requests or contracts are within the law.

Under the HVNL (section 26E), any person is prohibited from requesting, directing, or contracting in a way that would cause or encourage a driver to breach fatigue requirements or speed limits or that would result in another CoR party causing a driver to breach fatigue requirements or speed limits.

A person commits an offence under the HVNL, section 26E:

Under section 26E (1):

A person asks, directs, or requires either directly or indirectly, the driver of a heavy vehicle to do something the person knows, or ought reasonably to know, would have the effect of causing the driver of a heavy vehicle to speed or drive while impaired by fatigue or while in breach of the drivers work and rest options

or

A person asks, directs, or requires something of a party in the CoR and the person knows, or ought reasonably to know, that the direction or request would cause the driver of a heavy vehicle to exceed the speed limit, or drive while fatigued.

Under section 26E (2):

A person must not enter into an agreement or contract with the driver of a heavy vehicle, or a party in the CoR, to do something the person knows, or ought reasonably to know, would cause or encourage the driver of a heavy vehicle to exceed the speed limit or drive while impaired by fatigue.

To decide whether a person ought reasonably to have known something, a court may consider the person’s abilities, experience, expertise, knowledge, qualifications, and training.^[1]

What are the legal consequences?

Courts may impose significant penalties or orders on a person who breaches the HVNL section 26E.

What is a prohibited request or contract?

Prohibited requests or contracts put pressure on drivers due to competitive service demands. Examples of unreasonable requests and contractual terms include:

• scheduling times which do not take into account delays caused by changing road or traffic conditions or accidents
• scheduling times which cannot be achieved, except by speeding or driving while fatigued
• maximising driving hours through incentive-based schemes and intense work practices
• penalty clauses for late delivery
• price pressures set out in unreasonable contract terms set through tendering cycles.

As a result, drivers are exposed to the risks of speed and fatigue to meet these unreasonable demands.

Speed pressures include:

• tight or unrealistic delivery times or an unrealistic number of deliveries in a window of time
• paying drivers per kilometre, rather than per hour, and fixing the kilometre rate at a level that incentivises drivers to speed or not take rest breaks
• pressuring drivers to take on additional work that results in them having to speed to meet unrealistic work expectations and deadlines.

Fatigue pressures include:

• rostering that does not allow drivers to comply with work and rest requirements
• scheduling or expectations that require loading and unloading activities to be undertaken during rest breaks
• rostering which could result in fatigue accumulation in drivers, for example long working hours for consecutive days
• delivery windows with no flexibility that do not take into account delays
• tolerance of drug use as a strategy to manage fatigue due to work demands and prolonged lack of sleep

Why is this important for my business?

Unreasonable requests, directions and contracting pressures are a known major safety risk because they may cause or encourage unlawful and unsafe risk-taking behaviours.^[2]

Unsafe behaviours can include:

• driving while impaired by fatigued
• drug use to manage fatigue
• speeding
• businesses providing incentives to complete schedules more quickly
• breaching the HVNL and other road laws.

These unsafe behaviours may result in deteriorating driver health, near misses, vehicle collisions and road fatalities. Unsafe behaviours may also expose drivers and parties in the CoR to prosecution. It is essential for those who manage driver requests and contracts to ensure terms or conditions do not cause, encourage or incentivise the driver to engage in unsafe behaviours.

The potential safety risks resulting from these unsafe behaviours may include:

• serious injury or death to workers, road users and the public
• damage to road and other infrastructure.

How can I comply with HVNL section 26E?

You must not encourage, ask, direct, or require a heavy vehicle driver or a party in the CoR whether by agreement or contractual arrangement to engage in unsafe behaviours. You must ensure that you assess and understand the impact of any requests, directions, or contractual conditions.

Practical measures to avoid encouraging unsafe behaviours may include:

• allowing sufficient time to safely complete the freight task
• allocating time to absorb delays
• providing operational staff with contact details to communicate any delays or other relevant information
• clearly outlining obligations and responsibilities of all parties
• including escalation processes when parties to the contract act contrary to agreed terms and conditions of the contract
• having a safety forward approach to creating contracts
• not penalising drivers for missing or being late for a booking time due to delays
• not providing incentives or penalties that may encourage a driver to speed or drive whilst fatigued
• not providing incentives or penalties that may encourage another party in the CoR to do something that would result in the driver speeding or driving while fatigued.

Scenarios – Examples of prohibited requests and contracts

1: An employer directs a driver to meet a deadline

Steve is the General Manager of a transport company and is responsible for establishing the work schedule for his drivers. Steve instructs one of his drivers, Roger, to drive a vehicle from Brisbane to Sydney and establishes a deadline for Roger’s arrival. The schedule doesn’t allow sufficient time for Roger to comply with his work and rest obligations unless he exceeds the speed limit. Steve has committed an offence by directing Roger to do something which would cause him to speed or drive whilst fatigued. Steve may face fines exceeding $10,000.

2: An agreement includes a delivery time incentive

Mark requires a large item to be urgently transported by heavy vehicle from Brisbane to Sydney. He enters into an agreement with Sarah, who is the Logistics Manager at a transport company, for the item to be delivered in Sydney for a fee. However, a further agreement is made that if the item is delivered in Sydney within 10 hours of leaving Brisbane, the fee would be doubled. Mark and Sarah may have both committed offences by entering into the second agreement which has a schedule that could only be met if the driver of a heavy vehicle exceeds the speed limit or fails to take required rest breaks. Mark and Sarah may both face fines exceeding $10,000 for entering into an agreement in these terms.

3: A heavy vehicle repairer encourages a driver to speed

A transport business is having trouble with a new prime mover that was recently purchased. The vehicle has a vibration in the driveline at speeds above 70km/h. Arrangements are made to take the vehicle to the dealership for repairs. The dealership’s workshop is located in an urban area with all the surrounding roads limited to 60km/h. The closest speed zone above 70km/h is about 20 minutes away. John, the manager of the dealership, asks the driver, Jane, to demonstrate the problem in a nearby street. Jane explains again that the problem only occurs above 70km/h and that the speed limit in the surrounding streets is 60 km/h. John explains that they do not have time to take the vehicle to an area with a speed zone above 70km/h. John further explains to Jane that if she is not willing to do this the vehicle will have to be re-booked for a later date and it will be needed for the full day. John has committed an offence by encouraging a heavy vehicle driver to speed. John may face fines exceeding $10,000.