The primary duty and a driver’s duty to not drive fatigued are different.

What is the primary duty?

The primary puty is the obligation to ensure so far as is reasonably practicable the safety of transport activities.

Under the Heavy Vehicle National Law (HVNL) s26C, the primary duty is the responsibility of all parties in the Chain of Responsibility (CoR).

HVNL s5 defines a CoR party as a person (including an individual or a company) performing any of the following 10 functions:

1. employing a heavy vehicle driver (employer)
2. engaging a self-employed driver of aheavy vehicle under a contract for services (prime contractor)
3. directing the control and use of a heavy vehicle (operator)
4. scheduling the transport of goods or passengers in a heavy vehicle, or scheduling a driver’s work and rest hours (scheduler)
5. consigning (coordinating and sending) goods for transport by a heavy vehicle (consignor)
6. receiving goods delivered by a heavy vehicle (consignee)
7. packing or assembling goods for transport in a heavy vehicle (packer)
8. managing premises where five or more heavy vehicles are loaded or unloaded each day (loading manager)
9. loading a heavy vehicle (loader)
10. unloading a heavy vehicle (unloader).

If employees of a business perform one of these ten functions, the business has a Primary Duty to ensure the public is safe when a heavy vehicle is used on the road.

This means eliminating or minimising the risk created by employees driving or performing other safety critical tasks while fatigued. This is part of a person’s transport activities.

A heavy vehicle driver is not a CoR party unless they are an owner/operator or perform another function that makes them a party.

However, a driver is subject to other requirements under the HVNL and other road laws, including the duty of driver to avoid driving while fatigued (HVNL s228).

What is the driver duty to not drive fatigued?

A driver must not operate a fatigue-regulated heavy vehicle if they are impaired by fatigue. Even if complying with work and rest requirements, a driver may still experience the physical and mental effects of fatigue, including difficulty concentrating, poor judgement, slow reflexes, or feeling drowsy, so it is critical to be aware of these signs of fatigue.

For more information see Regulatory Advice – Fitness to drive: Fatigue

What is the importance of connecting primary duty and driver duty?

To comply with their primary duty, parties in the CoR must ensure a driver can make safety decisions and be able to actively enact their duty to not drive fatigued.

For example, creating a safety culture empowers and allows drivers to be able to declare they are fatigued and therefore unable to continue driving, without fear of reprisal.