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John Duffy is a free-lance, commentary coach captain based on the Sunshine Coast, Queensland, who offers a range of services to the coach and bus industry. He trains and assesses drivers and bus companies [including tourism], and provides transport consultancy services. He authored the "Australian Bus and Coach Drivers Guide" as a training resource. He is the first ever Certified Passenger Professional, CILTA Professional of the Year and TLISC Road Transport Trainee of the Year.

Friday, 5 May 2017

The Cost of HVNL Penalties



The enforcement of heavy vehicle road rules in Australia has always seemed burdensome to drivers and, to a lesser extent, operators.  We have seen the advent of increased safety regulation, particularly since the 1990s (in the aftermath of the Grafton and Kempsey coach incidents).  

In more recent decades, we have seen another substantial increase (or supposedly a national "simplification") with the delayed introduction of the Heavy Vehicle National Law [HVNL].  Of course, there remains differences between the states in regards to parts of the HVNL, and Western Australia and Northern Territory still refuse to ratify it.  

Irrespective of the efficacy or success of the HVNL and the National Heavy Vehicle Regulator [NHVR], the laws are here to stay in one form or another.  More importantly, there are changes to the Chain of Responsibility [CoR] laws in mid 2018. "These changes align CoR laws more closely with workplace health and safety laws." (NHVR, 2017).

Now, more than ever, the increasing legal and safety demands on bus drivers (in regards to fatigue, mass, dimension, loading, and vehicle standards) are to be shared implicitly with parties in the CoR, namely:

  • owners 
  • managers and supervisors
  • schedulers
  • loaders/unloaders (if freight or luggage is involved)
  • consignors/consignees (if freight is involved)
  • mechanics
There are also parties not normally considered in general road transport as CoR, that is exclusive to the bus and coach sector.  These other parties include entities that: 
  • book (or contract) charter services (eg. schools, sporting teams) 
  • lead groups (eg. tour guides, teachers on excursions)


With all the features to the current HVNL (and further introductions in 2018), coupled with the very expensive penalties for breaches, there is a noticeable demand for disseminating the practical implications of the law.  This includes comprehensive training and auditing of ALL parties in CoR.  


The Penalty Types of HVNL Breaches


There are currently 330 offences that can be breached under the HVNL.

There are three (3) types of penalties used by the NHVR, being:
  • infringeable offences (for 144 offences)
  • court imposed penalties 
  • demerit points (for 8 offences)

Infringeable Notices

An infringeable notice is the same concept as a traffic ticket.

The alleged offender has a the option to either pay the notice or take the matter to court.

These are for minor infractions of the HVNL.

Court Imposed Penalties

More serious or multiple repeated offences are considered serious and can only be dealt by a court.

The HVNL sets out the maximum penalty level that the court may apply.  (These are summarised in 2016/17 Court Imposed and Infringement Penalties document, which is linked in the References below).

Demerit Points

The final penalty option (which can be issued along with infringeable notices) is to record demerit points against a driver's licence.  

How Do I Find Out the Penalty Cost for an Offence?


When costing Fatigue Management and CoR Management Policy, you should also assess the cost of a breach (or potential breach) - this is where an external auditor can save your company thousands!   

ADVERT: John Duffy ~ Tour Coach Services  < johnduffy.net.au > 😉

Let's take a simple example that has driven the industry mad on social media:  Using the wrong Driver Base.

The HVNL refers to this under S303 Time zone of driver’s base must be used. 

Accessing the Schedule of HVNL Penalties, Infringement Penalties and Demerit Points FY 2016-2017 online document, we search <Ctrl-F> for "303" or "base".

This gives us the following answer:

The first column outlines where the legislation is located:



Chapter 6 - Vehicle Operations - driver fatigue

The second column presents the actual section and explanatory note about the breach:



303 Time zone of driver’s base must be used – The driver must record 
time in the driver’s 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

The third column lists the penalty for increasing severity of certain breaches (as minor, substantial, severe, or critical).  


EXERCISE:  Compare a common breach I encounter doing audits
250 (1) Operating under standard hours—solo drivers


The fourth column outlines the maximum penalty that can be imposed (by a court) for breaching the particular offence:  $1500

The fifth column only pertains to over loading a vehicle.  You can check out the severe breach of S96 (1) Compliance with Mass Requirements.

The sixth column (entitled 2016/17 FY Indexed Penalty) list the maximum penalty value in line with CPI.  This value represents the penalty as at the 1 July (in this case 2017): $1600

The infringeable penalty is presented in column six: $160

The final column lists the demerit points attained for committing particular offences.

EXERCISE:  Check out the demerit points for the following
228 Duty of driver to avoid driving while fatigued


Just How Serious is it for Employers?


The biggest concern I have with the bus industry, is that all parties in the CoR do not know how close they are to massive breaches.

SCENARIO 1

A bus driver is captured by a speed camera doing 97km/h in a 90km/h zone

Not only is the driver committing an offence (under state or territory transport laws), but if not legally covered, the owner can be prosecuted from between $320 to $3000. [Refer to 219(1) Liability of employer etc for speeding offence].

SCENARIO 2

An experienced Tour Manager inadvertently makes a mistake (forgetting about the start of Day Light Savings during a tour).  This causes the driver to drive fatigued.  The manager/business may be prosecuted to a maximum of $10000 (plus legal expenses).
 [According to 233 (1) Duty to ensure driver’s schedule will not cause driver to drive while fatigued etc]

SCENARIO 3

The driver of a "stretch" doesn't have the permits to drive a Controlled Access Bus in NSW when he is parked in Newcastle during a "Transport Blitz".  He could be potentially fined $360 to $3000 [under S83(1) Keeping copy of permit while driving under vehicle standards exemption (permit)].

Even if you can successfully defend your case in court, remember the cost of time (eg. building the case, discussing with lawyers/consultants, away from work), legal costs (eg. legal representation or consultants) and corporate reputation (eg. media misrepresent facts) can have a negative impact on your operations.

Summary


The HVNL is extremely complex, and complements state and territory traffic and passenger transport legislation.  It doesn't need to be feared, but it is essential that all drivers and bus companies have a means of managing and auditing management systems to prevent breaches and potential breaches.

I don't want to seem scare-mongering, but I do want to make the point, to all bus and coach drivers and businesses ...

You must not be complacent with the HVNL !




References

Duffy (2013) Australian  Bus and Coach Drivers' Guide

NHVR (2017) About the Chain of Responsibility. last accessed 05-05-2017
<https://www.nhvr.gov.au/safety-accreditation-compliance/chain-of-responsibility/about-the-chain-of-responsibility>


NHVR (2016) Schedule of HVNL Penalties, Infringement Penalties and Demerit Points FY 2016-2017. last accessed 05-05-2017 <https://www.nhvr.gov.au/files/201606-0369-hvnl-penalties-and-infringements-july2016.pdf>



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