Road Safety (Drivers) Amendment (Fatigue Management) Regulations 2008

i Road Safety (Drivers) Amendment (Fatigue Management) Regulations 2008 S.R. No. 116/2008 TABLE OF PROVISIONS Regulation Page 1 Objective 1 2 Authorising provision 1 3 Commencement 1 4 Principal Regulations 1 5 Definitions 2 6 Demerit points 2 7 Part 5 substituted 3 PART 5—FATIGUE MANAGEMENT 3 501 Calculation of time 3 502 Calculating time within the participating zone 5 503 Calculating time from outside the participating zone 5 504 Reset rest breaks when changing work/rest hours option 6 505 Accreditation fees 6 506 Accreditation record requirements 6 507 Emergency services 7 508 Application for work diary exemption 7 509 Issue of written work diaries 8 510 Approval of electronic work diaries 9 511 Labelling of electronic work diary devices 12 512 Variation or cancellation of approval on application 13 513 Variation or cancellation of approval—without application 14 514 Removal of electronic work diary approval label 16 515 Corporation may permit the use of diaries whose approval has been cancelled 17 8 Amendments to Schedule 2 18 9 Amendment to Schedule 2A 18 ═══════════════ ENDNOTES 20 -- 1 of 21 -- 1 STATUTORY RULES 2008 S.R. No. 116/2008 Road Safety Act 1986 Road Safety (Drivers) Amendment (Fatigue Management) Regulations 2008 The Governor in Council makes the following Regulations: Dated: 23 September 2008 Responsible Minister: TIM PALLAS Minister for Roads and Ports ZOE WONG Acting Clerk of the Executive Council 1 Objective The objective of these Regulations is to amend the Road Safety (Drivers) Regulations 1999 to implement reforms relating to heavy vehicle driver fatigue management. 2 Authorising provision These Regulations are made under section 95 of the Road Safety Act 1986. 3 Commencement These Regulations come into operation on 29 September 2008. 4 Principal Regulations In these Regulations, the Road Safety (Drivers) Regulations 1999 1 are called the Principal Regulations. -- 2 of 21 -- S.R. No. 116/2008 Road Safety (Drivers) Amendment (Fatigue Management) Regulations 2008 2 5 Definitions In Regulation 104 of the Principal Regulations insert the following definitions— "major rest break means a rest break of at least 5 continuous hours; non-participating zone means all jurisdictions that are not participating jurisdictions; participating zone means all participating jurisdictions;". 6 Demerit points In regulation 301 of the Principal Regulations, after the last item in Table 301, insert— "Driving fatigue regulated heavy vehicle while impaired by fatigue RSA 191D(1) 3 Driving fatigue regulated heavy vehicle in contravention of maximum work requirement—severe risk offence RSA 191L(2) and (4), 191M(2) and (4), 191N(2) and (4), 191O(2) and (4), 191P(2) and (4) 3 Driving fatigue regulated heavy vehicle in contravention of maximum work requirement—critical risk offence RSA 191L(2) and (4), 191M(2) and (4), 191N(2) and (4), 191O(2) and (4), 191P(2) and (4) 4 Driving fatigue regulated heavy vehicle in contravention of minimum rest requirement—severe risk offence RSA 191L(2) and (4), 191M(2) and (4), 191N(2) and (4), 191O(2) and (4), 191P(2) and (4) 3 Driving fatigue regulated heavy vehicle in contravention of minimum rest requirement—critical risk offence RSA 191L(2) and (4), 191M(2) and (4), 191N(2) and (4), 191O(2) and (4), 191P(2) and (4) 4". r. 5 -- 3 of 21 -- S.R. No. 116/2008 Road Safety (Drivers) Amendment (Fatigue Management) Regulations 2008 3 7 Part 5 substituted For Part 5 of the Principal Regulations substitute— "PART 5—FATIGUE MANAGEMENT 501 Calculation of time (1) In the calculation of work time for the purposes of Part 10A of the Act, a period of less than 15 minutes counts as 15 minutes. 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) In the calculation of rest time for the purposes of Part 10A of the Act, a period of time is calculated in blocks of no less than 15 minutes. Examples A period of not working of 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). r. 7 -- 4 of 21 -- S.R. No. 116/2008 Road Safety (Drivers) Amendment (Fatigue Management) Regulations 2008 4 (3) In calculating time in a period for the purposes of Part 10A of the Act, the time must not be counted from within rest time, but must be counted forward— (a) if 1 or more major rest breaks are relevant to the period, from the end of a relevant major rest break; or (b) in any other case, from the end of a relevant period of rest time. Example A driver works standard hours. The driver completes 7 continuous hours rest time at 7 am on a relevant day, starts work at 7 am, works until 12.15 pm, has a 1 hour rest break, then works until 7.15 pm. In calculating the number of hours worked by the driver on that day, the counting must start from the rest period that finished at 7 am. Adding the periods 7 am to 12.15 pm and 1.15 pm to 7.15 pm results in a total of 11¼ hours worked that day (which is not a breach of maximum work time for the period from 7 am to 7.15 pm). However, in calculating the number of continuous hours worked in the second work period that day, the counting must start from the rest period that finished at 1.15 pm. Adding the periods 1.15 pm to 7.15 pm results in a total of 6 continuous hours worked (which is a breach of maximum work time for the period from 1.15 pm to 7.15 pm). (4) If a driver undertakes a journey and is in a different time zone from the time zone of the driver's base at the time when a period of time is relevant for the purposes of Part 10A of the Act, the period must be calculated by reference to the time zone of the driver base. Example If it is necessary to determine the night hours of a driver with a base in Western Australia while the driver is in Victoria on a journey, those night hours are the period between 12 midnight and 6 am in the r. 7 -- 5 of 21 -- S.R. No. 116/2008 Road Safety (Drivers) Amendment (Fatigue Management) Regulations 2008 5 Western Australian time zone in which the driver's base is situated, even if those hours equate (for instance) to 3 am to 9 am in Victoria. 502 Calculating time within the participating zone In calculating time for the purposes of Part 10A of the Act, time spent by the driver in another jurisdiction within the participating zone is to be treated in the same way as it would be treated if it were spent in Victoria. 503 Calculating time from outside the participating zone (1) This regulation applies to a driver who drives a fatigue regulated heavy vehicle into Victoria from the non-participating zone. (2) If, within the last 7 days, the driver has spent work time inside the participating zone, any time spent in the non-participating zone is to be treated as if it had been spent in Victoria. (3) If, within the last 7 days, the driver has spent work time only in the non-participating zone— (a) any time spent in the non-participating zone before the start of the driver's last major rest break before entering Victoria is to be disregarded; and (b) any time spent in the non-participating zone after the start of the driver's last major rest break before entering Victoria is to be taken into account; and (c) any time spent in the non-participating zone (or in the participating zone) after the start of the driver's last major rest break before entering Victoria is to be treated as if it were spent in Victoria. r. 7 -- 6 of 21 -- S.R. No. 116/2008 Road Safety (Drivers) Amendment (Fatigue Management) Regulations 2008 6 504 Reset rest breaks when changing work/rest hours option For the purposes of section 191R(7) of the Act, the prescribed length of time for a reset rest break is 48 continuous hours. 505 Accreditation fees (1) For the purposes of sections 191ZI(2)(d) and 191ZR(2)(e) of the Act, an application for BFM accreditation or AFM accreditation must be accompanied by the fee specified in Schedule 2. (2) Subregulation (1) does not apply if the applicant is accredited under either— (a) the Mass Management Module of the National Heavy Vehicle Accreditation Scheme; or (b) the Maintenance Management Module of the National Heavy Vehicle Accreditation Scheme. (3) In this regulation National Heavy Vehicle Accreditation Scheme means the accreditation scheme for heavy vehicle operators developed by the National Transport Commission and approved by the Australian Transport Council in November 1997. 506 Accreditation record requirements For the purposes of sections 191ZN(2) and 191ZX(2) of the Act, an operator to whom BFM accreditation or AFM accreditation is granted must keep the required records— (a) at the record location; and r. 7 -- 7 of 21 -- S.R. No. 116/2008 Road Safety (Drivers) Amendment (Fatigue Management) Regulations 2008 7 (b) in a way which ensures the records— (i) are reasonably accessible by an inspector; and (ii) are readable and reasonably capable of being understood; and (iii) can be used as evidence. 507 Emergency services For the purposes of section 191ZZ(1) of the Act, a person to whom that provision applies is exempt from— (a) Division 3 of Part 10A of the Act; and (b) Division 4 of Part 10A of the Act; and (c) section 191Y of the Act. 508 Application for work diary exemption For the purposes of section 191ZZA of the Act, an application for a work diary exemption must include the following information— (a) the driver's full name, address and driver licence number; (b) the address of the driver's base and record location; (c) the full name and address of the driver's nominee under section 191ZZA(3)(b) of the Act; (d) the grounds for seeking the exemption, together with documentation to support the grounds for the exemption; (e) the period for which the exemption is sought; (f) any conditions to which the exemption is sought to be subject. r. 7 -- 8 of 21 -- S.R. No. 116/2008 Road Safety (Drivers) Amendment (Fatigue Management) Regulations 2008 8 509 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 Corporation. (2) If the application is for a written work diary to replace another written work diary issued to the driver (the existing work diary), the driver must give the existing work diary to the Corporation with the application, unless the existing work diary has been destroyed, lost or stolen. (3) If the driver gives the existing work diary to the Corporation under subregulation (2), the Corporation must— (a) cancel any unused daily sheets in the existing work diary; and (b) return the existing work diary to the driver when the Corporation issues the replacement work diary to the driver. (4) If the application is for a written work diary to replace an existing 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 (as the case may be); and (b) briefly outline the circumstances of the destruction, loss or theft (as the case may be). (5) The Corporation must issue a written work diary to a driver if— (a) the application meets the requirements of this regulation; and r. 7 -- 9 of 21 -- S.R. No. 116/2008 Road Safety (Drivers) Amendment (Fatigue Management) Regulations 2008 9 (b) the driver shows the driver's current driver licence to the Corporation; and (c) the driver pays the fee specified in Schedule 2. (6) If the Corporation issues a written work diary to a driver, it must note the date, time and place of issue on the written work diary. (7) The Corporation may make other notes on the written work diary. (8) If the Corporation issues a written work diary to a driver from another jurisdiction in the participating zone it must— (a) notify the corresponding Authority of that jurisdiction of— (i) the identifying number for the work diary; and (ii) the driver's name and licence number; and (iii) the time, date and place of issue; and (b) include with that notification— (i) a statement of the reason it issued the work diary; or (ii) a copy of the application it received for the issue of the work diary. 510 Approval of electronic work diaries (1) A person may make written application to the Corporation for approval of a particular type of electronic work diary. r. 7 -- 10 of 21 -- S.R. No. 116/2008 Road Safety (Drivers) Amendment (Fatigue Management) Regulations 2008 10 (2) The Corporation may approve a system of recording information electronically for use as an electronic work diary for the purposes of Part 10A of the Act if it is satisfied that the system— (a) is suitable for fitting to, or for use in, a fatigue regulated heavy vehicle; and (b) has a mechanism that readily indicates to the driver of the vehicle that the system is, or is not, properly functioning; and (c) is capable of accurately monitoring and recording the work and rest times of the driver of the vehicle, and of recording any other information that a driver is required to record in a work diary under Part 10A of the Act; and (d) if the system is to be fitted to the vehicle and is to be used by more than one driver, is capable of ensuring that— (i) all of the information referred to in paragraph (c) can be accurately monitored or recorded (as the case may be) for each driver; and (ii) the details recorded by, or for a driver, are readily distinguishable from the details recorded by, or for any other driver; and (iii) the name of each driver for whom details are recorded is shown whenever the details are accessed; and r. 7 -- 11 of 21 -- S.R. No. 116/2008 Road Safety (Drivers) Amendment (Fatigue Management) Regulations 2008 11 (iv) a driver cannot record any information that a driver is required to record in a work diary under Part 10A of the Act in the system for, or on behalf of, another driver; and (e) has a mechanism to ensure that the driver cannot alter any information that the driver records in the system once the driver has had an opportunity to confirm the accuracy of that information; and (f) if the system is designed to enable the driver to send information to the driver's record keeper, has a mechanism that readily indicates to the driver that the information has, or has not, been sent to the record keeper; and (g) on being accessed by the record keeper, is capable of readily reproducing the information it contains; and (h) while the vehicle to which it is fitted is on the road, is capable of readily reproducing the information it contains in a form that— (i) is readily accessible by an inspector; and (ii) is reasonably capable of being understood by the inspector; and (iii) can be used as evidence. Note An electronic work diary may include or form part of an intelligent transport system approved under Part 12 of the Act. r. 7 -- 12 of 21 -- S.R. No. 116/2008 Road Safety (Drivers) Amendment (Fatigue Management) Regulations 2008 12 (3) If the Corporation approves an application under this regulation, it must issue a numbered certificate of approval to the applicant. (4) In granting an approval, the Corporation may impose conditions in relation to the operation and maintenance of the diary. (5) An approval under this regulation covers any system that is identical to the system that was submitted to the Corporation for approval. (6) Any identical system that is covered by an approval is also subject to any conditions that were imposed by the Corporation in relation to the approval. (7) A document that purports to be a certificate of approval issued by the Corporation under this regulation is evidence that any system referred to in the document has been approved by the Corporation as an electronic work diary under this regulation. 511 Labelling of electronic work diary devices (1) In this regulation, approved electronic work diary means a system of recording information electronically that is approved by the Corporation under regulation 510 for use as an electronic work diary for the purposes of Part 10A of the Act, or that is identical to such a system. (2) A person may place on any device that is, or that forms part of, an approved electronic work diary a label that indicates that the device is, or is part of, an approved electronic work diary. r. 7 -- 13 of 21 -- S.R. No. 116/2008 Road Safety (Drivers) Amendment (Fatigue Management) Regulations 2008 13 (3) A person must not place on any device a label that indicates that the device is, or is part of, an approved electronic work diary if the device is not, or does not form part of, an approved electronic work diary. Penalty: 20 penalty units. (4) A person must not use as an electronic work diary for the purposes of Part 10A of the Act any device that has a label that indicates that the device is, or is part of, an approved electronic work diary if the person knows, or reasonably ought to know, that the device is not, or does not form part of, an approved electronic work diary. Penalty: 20 penalty units. (5) The existence of a label on a device that indicates that the device is, or forms part of, an approved electronic work diary, and that purports to show the number of a certificate of approval, is evidence that the device is an approved electronic work diary. 512 Variation or cancellation of approval on application (1) The person to whom the certificate of approval was issued may make written application to the Corporation for variation or cancellation of the approval of an electronic work diary. (2) The application for variation must state the variation sought and outline the reasons for the application. (3) The Corporation may, by written notice given to the applicant, require the applicant to give the Corporation any necessary additional information. r. 7 -- 14 of 21 -- S.R. No. 116/2008 Road Safety (Drivers) Amendment (Fatigue Management) Regulations 2008 14 (4) The Corporation must decide the application as soon as practicable after the Corporation receives it. (5) If the Corporation decides to grant the application, the Corporation must give the applicant written notice of the decision. (6) The variation or cancellation takes effect— (a) when written notice of the decision is given to the applicant; or (b) if a later time is stated in the written notice of the decision, at that time. (7) If the Corporation does not vary or cancel the approval as requested by the applicant, the Corporation must give the applicant a written notice that states— (a) the Corporation's decision; and (b) the reasons for the decision; and (c) that the applicant may apply to have the decision reconsidered. (8) Section 191ZZZD of the Act applies to a reconsideration of a decision under this regulation as though it were a decision to which Division 9 of Part 10A of the Act applies. 513 Variation or cancellation of approval— without application (1) If the Corporation is satisfied on reasonable grounds that an application for the approval of an electronic work diary was false or misleading in a material respect, the Corporation may— (a) cancel the approval; or r. 7 -- 15 of 21 -- S.R. No. 116/2008 Road Safety (Drivers) Amendment (Fatigue Management) Regulations 2008 15 (b) if the circumstances do not require the cancellation of the approval, vary the approval. (2) Before the Corporation cancels or varies an approval of an electronic work diary the Corporation must give to the person to whom the certificate of approval was issued written notice that the Corporation proposes to cancel or to vary the approval, as the case may be. (3) The notice under subregulation (2) must— (a) if the proposed action is to vary the approval, state the proposed variation; and (b) state the ground for the proposed cancellation or variation; and (c) outline the facts and other circumstances forming the basis for the ground; and (d) invite the person to state in writing, within a specified period of at least 14 days after the notice is given, why the approval should not be varied or cancelled. (4) If, after considering any written statement made within the specified time, the Corporation is satisfied that the application was false or misleading in a material respect, the Corporation may decide— (a) if the proposed action is to vary the approval, to vary the approval in the manner stated in the notice; or r. 7 -- 16 of 21 -- S.R. No. 116/2008 Road Safety (Drivers) Amendment (Fatigue Management) Regulations 2008 16 (b) if the proposed action is to cancel the approval— (i) to cancel the approval; or (ii) to vary the approval in any manner. (5) The Corporation must give the person written notice of the Corporation's decision. (6) If the Corporation decides to vary or cancel the approval, the Corporation 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) if a later time is stated in the notice, that time. (8) Section 191ZZZD of the Act applies to a reconsideration of a decision under this regulation as though it were a decision to which Division 9 of Part 10A of the Act applies. 514 Removal of electronic work diary approval label (1) This regulation applies if the Corporation cancels the approval of an electronic work diary. r. 7 -- 17 of 21 -- S.R. No. 116/2008 Road Safety (Drivers) Amendment (Fatigue Management) Regulations 2008 17 (2) The person who, immediately before the cancellation took effect, held the certificate of approval must— (a) remove from any diaries in that person's possession any label that relates to the cancelled approval; and (b) notify in writing each person to whom that person supplied any diary under the approval that the approval has been cancelled and that any label on any such diary still in the person's possession should be removed. Penalty: 20 penalty units. (3) A person who is aware that the approval of a diary in the person's possession has been cancelled must remove from the diary any label that relates to the cancelled approval. Penalty: 20 penalty units. 515 Corporation may permit the use of diaries whose approval has been cancelled (1) The Corporation may, by notice published in the Government Gazette, permit the use of electronic work diaries whose approval has been cancelled— (a) for a specified period or indefinitely; and (b) on specified conditions. (2) Despite anything to the contrary in the regulations, a diary that is the subject of a notice under this regulation is to be treated as if it were an electronic work diary, unless it is being used contrary to any condition specified in the notice. r. 7 -- 18 of 21 -- S.R. No. 116/2008 Road Safety (Drivers) Amendment (Fatigue Management) Regulations 2008 18 (3) The Corporation may, by notice published in the Government Gazette, vary or revoke a notice under this regulation.". 8 Amendments to Schedule 2 (1) In item 12 of Schedule 2 of the Principal Regulations— (a) for "log book" substitute "written work diary"; and (b) in column 1 for "512(2)" substitute "509(5)". (2) In Schedule 2 to the Principal Regulations, after item 12 insert the following new item— "13. Application for BFM accreditation or AFM accreditation 505(1) 5⋅99 fee units". 9 Amendment to Schedule 2A In Schedule 2A of the Principal Regulations— (1) in the entry relating to the Road Safety Act 1986 for "and 74(1) and (2)" substitute ", 74(1) and (2), 191D(1), 191L(2) and (4), 191M(2) and (4), 191N(2) and (4), 191O(2) and (4), 191P(2) and (4), 191S, 191T, 191ZA, 191ZB, 191ZC, 191ZG, 191ZW and 191ZII"; and (2) in the entry relating to the Road Safety (Drivers) Regulations 1999— (a) for ", 220(2)," substitute "and 220(2)."; and r. 8 -- 19 of 21 -- S.R. No. 116/2008 Road Safety (Drivers) Amendment (Fatigue Management) Regulations 2008 19 (b) omit "503(1) and (2), 504, 504A(c), 505(2), 506(2), 507, 508(2), 508A(2), 510(1) and (2), 511(2), 513(1), (2) and (3), 514, 515, 516(1) and (2), 517 and 518(1) and (2).". ═══════════════ r. 8 -- 20 of 21 -- S.R. No. 116/2008 Road Safety (Drivers) Amendment (Fatigue Management) Regulations 2008 20 ENDNOTES 1 Reg. 4: S.R. No. 26/1999. Reprint No. 4 as at 1 July 2008. —— Fee Units These Regulations provide for fees by reference to fee units within the meaning of the Monetary Units Act 2004. The amount of the fee is to be calculated, in accordance with section 7 of that Act, by multiplying the number of fee units applicable by the value of a fee unit. The value of a fee unit for the financial year commencing 1 July 2008 is $11.35. The amount of the calculated fee may be rounded to the nearest 10 cents. The value of a fee unit for future financial years is to be fixed by the Treasurer under section 5 of the Monetary Units Act 2004. The value of a fee unit for a financial year must be published in the Government Gazette and a Victorian newspaper before 1 June in the preceding financial year. Endnotes -- 21 of 21 --