4.1
Responsibility for road transport regulation is shared across all levels of government and multiple agencies and regulators. This chapter outlines the legislative framework and considers its appropriateness, relevance and adequacy for stakeholders in the road transport industry.
4.2
This chapter also demonstrates the need for a risk-based approach to the enforcement of safety measures as the most effective way to address road safety outcomes, rather than prosecuting individual drivers for minor breaches. This approach is supported by the Productivity Commission’s review of the Heavy Vehicle National Law (HVNL) and the National Heavy Vehicle Regulator (NHVR). Further, this chapter reveals that the HVNL is not applied consistently across non-compliant operators, which provides some operators with a competitive advantage. Measures such as increased supervision and more regular audits provide scope for consistent and broad application of the HVNL across the entire road transport sector, along with the introduction of incentives to foster best practice for those businesses that comply.
4.3
Inconsistency in the application of HVNL, along with duplication of accreditation schemes, vehicle access to roads, the effectiveness of the law as it applies to chain of responsibility and fatigue management, were all issues raised with the committee in evidence.
4.4
Issues related to the HVNL discussed elsewhere in this report include changes to mass and length limit regulations (discussed in chapter 6) and the regulation of new technologies (discussed in chapter 7).
Heavy Vehicle National Law
4.5
The HVNL was established on 10 February 2014 to provide a single national system of laws for heavy vehicles over 4.5 tonnes gross vehicle mass. The legislative framework consists of the Heavy Vehicle National Law and five sets of regulations. The HVNL replaced 13 model laws and six state and territory transport-related laws.
4.6
The regulatory framework under the HVNL prescribes requirements for:
the standards heavy vehicles must meet before they can use roads;
the maximum permissible mass and dimensions of heavy vehicles;
securing and restraining loads on heavy vehicles;
ensuring parties in the chain of responsibility are held responsible for drivers of heavy vehicles exceeding speed limits;
preventing drivers of heavy vehicles from driving while impaired by fatigue; and
nationally consistent penalties.
4.7
The National Heavy Vehicle Regulator (NHVR) regulates the heavy vehicle industry under the HVNL and aims to improve 'safety, productivity and efficiency outcomes across the heavy vehicle transport sector and the Australian economy'. Its responsibilities include:
… the National Heavy Vehicle Accreditation Scheme; Performance Based Standards (PBS) scheme; vehicle design and access approvals; heavy vehicle access permit applications; heavy vehicle standards modifications and exemption permits; national driver work diaries and the risk classification system for advanced fatigue management; and national exemption notices.
4.8
Mr Sal Petroccitto, chief executive officer of the NHVR, describes the NHVR as a 'policy taker' whereby policy is 'developed by the jurisdictional agencies, adopted through the various state parliaments and then [the NHVR is] asked to implement that legislation'.
Adoption of the HVNL
4.9
Queensland is the 'host' jurisdiction of the HVNL. The other participating jurisdictions—South Australia, Victoria, Tasmania and the Australian Capital Territory—have enacted the Queensland law, in order to apply the HVNL in those jurisdictions. The NHVR is 'in the process of transitioning regulatory functions from the New South Wales government and the Queensland government over the coming years'.
4.10
Western Australia and the Northern Territory have not adopted the HVNL, choosing instead to retain their own regulatory regimes especially in the areas of vehicle accreditation, performance-based standards, fatigue management and approaches to chain of responsibility. However, the HVNL applies to vehicles from these jurisdictions if they cross the state or territory border. Some reasons for the retention of state laws were suggested by the Productivity Commission:
Both jurisdictions apply a less prescriptive approach than the HVNL, and both consider that their legislation is better suited for local conditions while delivering at least comparable safety and productivity benefits. In the case of Western Australia, most interstate freight is delivered by rail rather than road, reducing (but not eliminating) the regulatory costs of different regimes across jurisdictions.
4.11
With respect to the Northern Territory, the Productivity Commission added:
The Northern Territory has generally continued with a light-handed approach (for example, heavy vehicles can use all roads in the territory, with the exception of specified urban roads). In some instances, they have adopted aspects of the HVNL, including the heavy vehicle standards published in the NHVIM [National Heavy Vehicle Inspection Manual]. The Northern Territory also offers flexibility to heavy vehicle operators by allowing operators to comply with their choice of the NT, WA or HVNL schemes.
Derogations
4.12
Derogations occur when some jurisdictions, when enacting the national laws, choose to exclude, add to, or modify sections of the national law in their jurisdiction. Often these are administrative or technical in nature.
4.13
In late 2019 there were over 70 derogations from the HVNL, with 25 in New South Wales alone. Enforcement provisions account for most derogations in the HVNL, creating inconsistent application of enforcement powers. One significant inconsistency relates to periodic vehicle inspections, which are required annually in some jurisdictions but not at all in other jurisdictions.
Productivity Commission review—National Transport Regulatory Reform
4.14
In April 2019, the Productivity Commission (PC) was tasked with assessing the economic impact of reforms to transport regulation agreed to by the Council of Australian Governments (COAG) in 2008–09. Those reforms related to heavy vehicle safety and productivity, rail safety and maritime safety. The PC was also asked to recommend further reforms towards a more integrated national market for transport services.
4.15
The PC presented its final report to the government on 7 April 2020 and it was released to the public on 1 October 2020.
4.16
The PC noted that the transition to the national laws and regulations for heavy vehicles were almost complete, with Western Australia and the Northern Territory operating outside the national heavy vehicle regime. Unnecessary derogations from the HVNL continued and approvals for heavy vehicle access to local roads still lagged in some areas.
4.17
The PC compared crashes involving injury or death per billion vehicle kilometres travelled by heavy vehicles in jurisdictions subject to the HVNL with heavy vehicles in non-HVNL jurisdictions. The PC concluded ‘there is insufficient evidence to conclude that adopting the HVNL had a significant effect on heavy vehicle safety outcomes’.
4.18
The PC noted that heavy vehicle safety had continued to improve, although largely due to new technology and infrastructure investments and suggested that 'a more flexible, outcomes-based approach' should improve safety further.
4.19
The PC also observed that efficiency gains for heavy vehicle operators had not been achieved to the extent expected. Road access for larger trucks had improved, but 'significant bottlenecks remain on some major freight corridors'.
4.20
The PC suggested a number of ways in which the regulators and industry could further promote safety and productivity:
Striking a balance between prescription and outcomes-based approaches in safety regulation by removing unnecessary prescriptive detail from the HVNL and allowing operators to choose between following prescriptive regulation or adopting a more flexible approach with the regulator's approval.
Emphasising risk-based approaches to improving safety and consistency by removing unjustified derogations and streamlining the Australian Design Rule processes for heavy vehicles.
Improving infrastructure provision and management by progressing Heavy Vehicle Road Reform.
Improving the evidence base for policy and regulatory decisions by establishing 'no blame' incident investigation, harnessing telematics data to inform infrastructure investment and access management and improving safety and compliance cost data collected by regulators.
4.21
Despite the findings of the PC that there was insufficient evidence that HVNL had improved safety outcomes, it made the following recommendations:
transferring all regulatory functions still held by participating jurisdictions to the NHVR by 2022 (recommendation 4.2);
introducing or continuing to support education programs to improve road users’ understanding of driving safely around heavy vehicles (recommendation 6.1);
amending the HVNL to clarify obligations of transport operators and other parties under chain of responsibility laws (recommendation 6.1);
removing unnecessarily prescriptive elements from the HVNL and supporting greater use of 'deemed to comply' provisions (recommendation 9.1);
allowing for both 'relatively prescriptive regulation' to operate alongside 'outcomes-based options' (recommendation 10.1);
removing derogations (recommendation 4.1);
promoting a risk-based fatigue management approach including by setting outer limits on driving hours (recommendation 6.3);
amending the Australian Design Rules to allow for new technologies with proven productivity or safety benefits (recommendation 8.1);
expanding heavy vehicle access networks, facilitating a risk-based assessment of access permits and addressing processing times (recommendations 7.3–7.5); and
enabling the Australian Transport Safety Bureau to conduct no-blame investigation and research into heavy vehicle incidents (recommendation 9.4).
National Transport Commission—Heavy Vehicle National Law Review
4.22
The National Transport Commission (NTC) is a statutory body accountable to the Infrastructure and Transport Ministers' Meeting (formerly the COAG Transport and Infrastructure Council), which comprises Commonwealth, state and territory transport ministers.
4.23
The NTC is responsible for establishing and maintaining national laws for road, rail and intermodal transport including the Australian Road Rules, Australian Code for the Transport of Dangerous Goods by Road and Rail, and the HVNL.
4.24
The purpose of the NTC review was to create a simplified, modern law to:
improve safety for all road users;
support increased economic productivity and innovation;
simplify administration and enforcement of the law;
support the use of new technologies and methods of operation; and
provide flexible, outcome-focused compliance options.
4.25
In November 2018, the NTC was asked to review the HVNL and its supporting regulations. The NTC released a summary of its consultations in January 2020 and a consultation regulation impact statement in June 2020. Final policy directions and an implementation plan to deliver a new HVNL were due to be presented to ministers in May 2021, after which the drafting of new legislation would commence.
4.26
The consultation regulation impact statement reported that the review had 'not found a case for repealing or overhauling the HVNL in its entirety' but had instead identified 'a suite of incremental improvements'. It also identified areas for industry reform including improving vehicle access by expanding both the mass and dimensions limits and improving the efficiency of access authorisations; streamlining the performance-based standards approval process; using technology such as on-board mass devices and fatigue and driver distraction monitoring devices to aid compliance; and improving the regulation of fatigue and creating a more effective assurance scheme.
Harmonisation
4.27
Several of the larger transport operators in their submissions to the committee were in favour of completing the harmonisation of heavy vehicle regulation across Australia. Toll Group, whose operations traverse state and territory borders, supported having a uniform regulatory regime:
… one rule book for heavy vehicles and heavy vehicle drivers across the country. No variations, no exceptions. This must cover a standard definition of a heavy vehicle as well as a national approach to mandatory stationary rest times for heavy vehicle drivers, speed limits for heavy vehicles and a driver licensing system.
4.28
ALDI considered lack of harmonisation a 'drain on efficiency' and advocated that the NHVR 'should be allowed to carry out its harmonisation agenda properly and deliver the productivity and safety benefits to the industry that it was set up to deliver'. To the Livestock and Rural Transporters' Association of Victoria, 'harmonising legislation and regulation is just good business' for the many operators who work across state borders.
4.29
In the view of the National Road Transport Association (NatRoad), which represents road freight transport operators, the design of the HVNL and the 'slow development of appropriate and effective policies' was due in large part to the states having the power to make laws for road transport.
4.30
The peak body representing road transport companies servicing the agricultural supply chain, the Australian Livestock and Rural Transporters' Association (ALRTA), also drew attention to the 'complex and overlapping' regulatory responsibilities of state and federal government agencies. ALRTA's ideal solution was for a single body for heavy vehicle regulation:
If Australia is ever to achieve world’s best infrastructure provisions and heavy vehicle regulation it will be necessary for Australian Governments to embark on a bold journey during which the current ‘silo’ approach is abolished with key powers referred to a new statutory authority with jurisdiction to regulate all facets of road transport relating to vehicle standards (pre and post service), driver licencing, training, health, charging, infrastructure, access, compliance and enforcement.
4.31
The need for resilient cross-border supply chains and state cooperation was brought into stark relief by the COVID-19 pandemic. Mr Mark Mazurek, chief executive officer of Linfox Logistics, elaborated that:
The pandemic has served to highlight the weaknesses in our road transport systems. There are other frailties in the interstate network, but road is especially vulnerable. Panic driven fluctuations have certainly created a lot of stress and concern for the industry. Overnight border closures almost turned off the entire road transport business overnight.
4.32
Linfox supported harmonisation and called for 'deeper national and sector-wide coordination' to reinforce supply chains and ensure the success of business.
4.33
In its submission to the committee, the NHVR identified harmonised law as a reform priority for the organisation. It signalled its intention to work to reduce duplication and inconsistencies across state and territory borders and to transition compliance functions 'from jurisdictions to the NHVR'. Mr Petroccitto also conceded that 'there are provisions in the Western Australian legislation that are very beneficial that would be good to have within the HVNL'.
4.34
The committee also heard from a number of stakeholders from jurisdictions outside the HVNL.
4.35
The Northern Territory Department of Infrastructure, Planning and Logistics stated that the Northern Territory's position was to not support the national law as the productivity benefits in implementing it—estimated at $2.1 million over 20 years—were not great. In its submission it further noted that the 'NT continues to participate in the national arena to harmonise heavy vehicle regulation where possible, and works with the NHVR on relevant national enforcement activities'.
4.36
Grain handlers CBH Group, in considering Western Australia adopting the HVNL, argued:
…that decision would require extensive consultation with the road transport industry and users, and should balance any benefits of the national system against not only … the resulting increased regulatory compliance cost, but also the significant safety and productivity efficiencies that have been gained at the local level which may not be available under the national system.
4.37
The Livestock and Rural Transport Association of Western Australia (LRTAWA) opposed Western Australia joining the HVNL on the basis that 'there is no evidence it will benefit the majority of WA transport companies'. LRTAWA argued that the HVNL is focused on line haul operations when '95% of WA’s freight task is conducted intrastate'. Furthermore it considered the HVNL to be 'outdated, complex, long, prescriptive' and 'not supportive of road safety outcomes' while the WA system was 'agile and responsive to industry needs'. LRTAWA was, however, supportive of:
… increased mutual recognition that would enable reciprocal acceptance of fatigue and accreditation systems as well as access for combinations not provided by either of the systems. Mutual recognition would enable the differences between jurisdictions to be smoothed out whilst in the case of WA, retain the inherent strength of the local system. WA and participating NHVR jurisdictions should continue to learn from one another and share IT systems and know-how where appropriate.
4.38
In their joint submission, the Western Roads Federation and the Northern Territory Road Transport Association suggested that an industry working group be formed to collaborate on achieving national harmonisation. It suggested that the group include current organisations already collaborating on achieving national harmonisation, namely, the Victorian Transport Association, Northern Territory Road Transport Association, NatRoad and the Western Roads Federation.
4.39
Mr Glyn Castanelli, a registered auditor for both the national and Western Australian schemes, expressed the view that claims of the differences in the laws across jurisdictions had been overstated and that aside from 'a small difference in driving hours':
The standards for heavy vehicles between NHVAS and WAHVA jurisdictions are very similar. In fact, if you read them, a lot of them are actually word for word the same. I can't say the laws governing it are exactly the same, but the way the law is implemented on [the eastern] side of the country is that it is a law enforcement problem, and over on the other side of the country it's a workplace health and safety problem. That is really the only difference.
4.40
Fatigue management and vehicle access under the HVNL and Western Australian and Northern Territory systems are discussed in more detail later in the chapter.
Enforcement
4.41
On-road compliance and enforcement of the HVNL is undertaken by the NHVR, state and territory road transport authorities and police. Regulatory areas commonly subject to enforcement include driver fatigue and work diary requirements, vehicle standards, mass and dimensions of heavy vehicles and load restraint.
4.42
Many submitters and witnesses told the committee that enforcement regimes were unfair on drivers, subjecting them to unnecessary fines and hardship for what in many cases amounted to technical or administrative errors such as in work diaries. Mr Campbell Dumesny, chief executive officer of the Western Roads Federation, told the committee:
We had a driver in a two-up team who was sleeping in the cab, in the bunk, and he was woken up by the police enforcement team in South Australia and asked to produce his logbook. He had not signed his logbook off before he had gone to have a rest. The fine was $750.
4.43
Ms Janelle Whale, a principal with Ainslie Law, a legal firm which represents heavy vehicle operators and drivers charged under the HVNL, outlined the range of fines to which drivers are subject:
… the maximum penalty, if it goes to court, for forgetting to tick a box or signing the bottom of the page—any minor problems with a work diary page—is $1,500 … It goes up with CPI, so it's about $1,680 or something at the moment. The ticket roadside is $168, but once you get into the scaled fatigue offences, they can go up to $15,000, $10,000 and so on.
4.44
Ms Roxanne Mysko, chief executive officer of the United Transport Group, elaborated further on the effect of fines on drivers:
With the intimidation and the costs of the fines, these are now totally outstripping what these truck drivers are actually earning and, probably in a lot of cases, on the volume of profit they are actually making out of the freight that they are moving.
4.45
The Australian Logistics Council (ALC) argued that enforcement carried out by diverse bodies including the 'NHVR, authorised officers, state and territory road authorities and state and territory police forces' is resulting in inconsistencies, minor infractions and insufficient driver education. In the ALC's view, the NHVR and state police forces should enter into a memorandum of understanding to establish greater national consistency regarding how and when police officers should exercise the powers vested in them by the HVNL. Mr Rod Hannifey, president of the National Road Freighters' Association, went further to suggest the removal of police powers to enforce the HVNL.
4.46
A specific inconsistency in the enforcement of the laws identified by Ainslie Law was where drivers received separate charges for multiple offences for logbook pages that had already been signed off on by a previous inspection officer. Ainslie Law argued that the practice was unfair, as had the mistake been identified earlier, the driver would have had an opportunity to correct their behaviour. Ms Whale also argued that there is an educative role for enforcement officers:
Transport officers and police, when they pull drivers over, are actually in a really powerful position to be able to guide drivers to get these things right. When they look back through work diaries, there are some officers who will say, 'Look, you need to make sure you're doing this,' or 'Just be careful when you're counting that.' Rather than charging them, they give them that instruction so that, moving forward, they're doing the right thing. That's quite helpful, but a more organised training regime around all of that would avoid all of these issues.
4.47
Ainsley Law argued that an unjust application of the HVNL affects the relationship between drivers and the authorities, with an 'us and them' perception developing among drivers instead of a common purpose to make conditions safer for drivers and the community.
4.48
The NHVR submitted that it is focused on shifting from a reliance on on-road enforcement to 'engagement, education and then sanctions', informed by data on areas posing the greatest safety risks. It argued that a risk-based, data‐ and intelligence‐led approach will enable it to target the areas of greatest safety risk. Mr Petroccitto told the committee:
I don't want my officers blistering someone because they've spelt a name wrong. I don't want my officers issuing an infringement because there's a cracked mudflap on the back of the truck. What I'd rather they do and what we are doing is educate the driver on the importance of making sure that those systems or facilities are appropriately managed … Industry would be the first one to mention that, if someone is doing the wrong thing, they expect you to act. But industry would also say to you, if they've honestly made a mistake, they would like the opportunity to learn from that mistake and do things better, and that's the approach we're aiming to adopt.
4.49
To Mr Tim Dawson, branch secretary of the Western Australian Transport Workers' Union, a highly punitive regulatory system does not address the systemic issues where large businesses exert pressure on operators and drivers. Mr Dawson argued that the majority of operators are professional but the system in which they operate forces them to cut corners and take risks because 'if they do get caught, at the end of the day it's worth that risk to try and win contracts'.
4.50
This view was taken further by Mr Campbell Dumesny who argued in favour of more on-road enforcement for transport companies. From his perspective, companies that meet compliance standards spend money to employ officers with expertise in compliance, safety and driver training:
But they're being undercut by other operators who don't do that, who just cheat the system. Because there's no enforcement on the road—this is a national problem—they get away with it. If the risk of getting caught is low, if the profits are higher and the consequences are not much, then you will continue to have cheating, and that needs to be addressed.
4.51
The independent research and consulting group, Transport and Logistics Centre (TALC), saw a need for 'consistent and regular enforcement of regulations on parties at all levels of the CoR [chain of responsibility]'. This would include whistle-blower protections for truck drivers to enable them to safely report breaches, a 'range of sanctions and deterrents to change behaviour such as point to point cameras', 'adverse publicity for recalcitrant parties' and 'regulatory mechanisms that reach most effectively into the top layers of the CoR to influence the design of safe, healthy and productive work'.
Chain of Responsibility
4.52
Chain of responsibility (CoR) refers to the specific legal obligations placed on people and businesses that make up the heavy vehicle supply chain. Any time a business sends or receives goods using a heavy vehicle, that business becomes part of the supply chain and is accountable for breaches or safety incidents where they have influenced non-compliance. The NHVR notes that:
A person may be a party in the supply chain in more than one way and legal liability can apply to their actions, inactions and demands. Some roles that can influence heavy vehicle safety include loading manager, consignee, operator, consignor, scheduler, packer, loader, employer, executive officer and prime contractor.
4.53
The requirements for business compliance under CoR were described for the committee by Mr Glyn Castanelli, the Secretary of the National Road Freighters' Association:
Under chain-of-responsibility laws, businesses are responsible for ensuring as far as reasonably possible that rosters and schedules do not require the driver to exceed driving-hour regulations or speeds, keeping records of driver work and rest hours and taking all reasonable steps to ensure drivers do not work while impaired or fatigued or drive in breach of their work-or-rest options, vehicles are maintained and speed limiter functions properly, vehicles are not loaded in a way that exceeds mass or dimension limits and loads are properly restrained with appropriate restraining equipment, and it's the employer's responsibility to ensure the driver is trained in all of these areas before they put them on the road.
4.54
When the HVNL commenced in February 2014, parties in the CoR were usually held responsible only after a driver had committed an on-road offence. Furthermore, parties in the chain of responsibility deemed to be liable 'sometimes did not include the most responsible party'.
4.55
In October 2018, amendments were made to the legislation, which abolished deemed liability for parties in the CoR and replaced it with a duty to 'ensure, as far as is reasonably practicable, the safety of the party's transport activities relating to the vehicle'. The new legislation was modelled from workplace health and safety laws and principles.
4.56
Representatives of O'Brien Transport Services were supportive of CoR, with commercial manager Mr Dean O'Brien noting that the system provided a mechanism to resolve issues such as delays at distribution centres:
Whereas before we wouldn't have the courage to go and speak to them because we didn't want to lose our contracts, we actually have to now engage with those people.
4.57
However, a large number of witnesses and submitters raised concerns about the effectiveness of CoR laws, with the Queensland Trucking Association expressing the view that 'there is little evidence that enforcement and prosecution practice has made any tangible strategy shift' in sharing responsibility along the length of the supply chain.
4.58
Mr Peter Biagini, branch secretary of the Queensland Transport Workers' Union, was sceptical of the success of the CoR laws:
In writing it sounds good and in principle it sounds good, but it doesn't work. Whenever they come across companies that have done the wrong thing and they investigate it, the companies drag it out. They get lawyers from the top end of town involved and they get out of it … what I've noticed over the 40-odd years I've been doing this job is it used to be a minority of companies that were cheating everybody. Now it's becoming nearly a majority.
4.59
The Australian Trucking Association (ATA) suggested an amendment to chain of responsibility legislation, namely that the prescriptive list of parties in the chain be replaced with a non-exhaustive list on the grounds that if a party cannot be identified, it is not currently recognised by the law. The ATA argued that this would make the law more flexible, for example to cover online freight platforms.
4.60
ALRTA explained that the removal of deeming provisions meant that instead of infringements being issued 'to all chain parties connected to an offence', now when an offence occurred and an infringement was issued to one party, 'the same infringement could be issued to all other parties with an investigation needing to occur'. ALRTA indicated that in practice, insufficient investigations of other parties in the chain of responsibility were being made by the NHVR, state road authorities and police. Instead, infringements were generally only issued to the driver or operator. ALRTA argued that deeming provisions should be re-introduced.
4.61
To Ms Janelle Whale, there was 'little use of the chain of responsibility provisions which were introduced in 2018 in relation to fatigue offences'. Instead, 'nine times out of 10 they will just charge the driver, perhaps because that's easier'. Ms Whale noted that CoR laws have had most success in the area of mass and dimension offences as 'the default position is for the RMS [Roads and Maritime Services] to charge the operator of the vehicle, not the driver'. Ms Whale continued that:
If you're picking up a shipping container, the driver really isn't going to know how heavy it is; he can look at it, and it's anyone's guess. But you can sheet home responsibility to those who packed or those who did the bills of lading, so it's easier to use those provisions to essentially make it hit home and make people do the right thing.
4.62
Toll Group maintained that CoR will only work if customers are committed to safety or the penalties or public exposure for non-compliance are a sufficient deterrent. It observed that there was little evidence of CoR investigations taking place outside of New South Wales. Toll Group also remarked on the shift to shared responsibility brought about by the law:
The law infers, though doesn’t explicitly state, that customers must select their freight carriers on factors other than price alone. Through the primary obligations and other provisions customers must assess the capacity of their carriers to manage the risks inherent in the transport task and make purchasing decisions accordingly.
4.63
The NHVR, in its submission to the committee, suggested that in order for the principle of shared responsibility in section 26A of the HVNL to operate effectively, consideration must be given to the introduction of an 'explicit obligation' upon parties in the CoR to consult with heavy vehicle operators or drivers 'on safety‐critical issues which affect the driving task'.
4.64
The Queensland Trucking Association (QTA) raised a concern that larger transport organisations are shifting the risk on to subcontractors by asking them to sign contracts that make them responsible for CoR, 'even though they are still giving the instructions on how, when and where the work is undertaken'. QTA maintained that all participants in the supply chain are meant to be responsible and larger companies need to be accountable for 'paying rates which do not allow contractors to fulfil their own CoR and statutory obligations'.
4.65
Former owner-operator Mr Timothy Squires told the committee he had observed similar behaviour:
I've seen this over many years where a subcontractor signs—I won't call it a contract; I'll call it an agreement—an agreement with a major company or a major freight user where he has to totally indemnify whoever is his hirer, basically. He has to indemnify them against any offence. Now that's over hours, over weight, regardless of whether he's seen it loaded or not. He turns up, his trailers are all locked up; he can't open them up and have a look how it's loaded. So whether it's overweight or whether they've got him out three or four hours late, they still expect him to be at his destination at the same time and yet he's indemnifying them against prosecution. What happened to chain of responsibility?
4.66
Mr John Mitchell from Mitchell's Livestock Transport raised the need for 'mandatory universal minimum standards' governing contracts between the customers (freight users) and transport companies. He advocated terms within the 'stock standard body of a contract' that put the onus for chain of responsibility on the hirer of the transport service. In Mr Mitchell's view, the contract should 'set out the risks to the freight payer of any breaches of statutory law by the contractor' as well as the responsibilities of the transport company. Mr Mitchell argued that this would make the driver 'the problem of the director of the freight user as much as it is the director of the transport company'. Mr Mitchell also expressed the view that contracts should be mandatory for all freight engagements, from a prime contract appointment to a casual appointment.
4.67
When asked by the committee what a driver can do if they think that they have been forced to break the law or if they think that others have responsibility for an accident or incident, Mr Gary Mahon, chief executive officer of the QTA, replied:
There are a variety of places they can go. They can go to enforcement authorities. They can go to the union. They could go to associations. They could probably go to the ACCC. There are a variety, but it is complex. You heard evidence…that people feel intimidated that there are going to be consequences if they raise those issues, so it's an imperfect system and we're not going to solve it by even further treatment on truck drivers. What I'm asking for, and what we need, is broader consideration to structural change to bring about a better result.
Vehicle access
4.68
The ability for heavy vehicles to access the Australian road network is dependent on the size and mass of the vehicles and whether the road has been gazetted for general access.
4.69
The HVNL sets out the allowable mass and dimension requirements of general access vehicles. Vehicles or combinations of vehicles which exceed these overall dimensions are considered to be 'restricted access vehicles' (RAVs) and thus subject to restrictions on the parts of the road network that they can use. Some combinations such as B-doubles, road trains and vehicles operating at higher mass limits are also restricted.
4.70
Permits to access specified roads in HVNL jurisdictions are issued by the NHVR. In 2019–20 the NHVR processed over 78 000 access permit applications, of which around 3,800 were refused by road managers. While the NHVR processing time of access requests averaged 3.86 days in 2019–20, total end-to-end processing time averaged 16.83 days due to the time required for state and local road managers to consider requests. The average total processing time has halved since 2016–17.
4.71
A number of industry participants and analysts have singled out difficulties with obtaining access for restricted access vehicles as one of the main challenges facing the HVNL. A 2019 report by Deloitte Access Economics commissioned by the Australian Trucking Association pointed to the lack of consistency across states and territories in issuing permits and the delays and lack of transparency in processing permit decisions. Ms Michelle Harwood, executive director of the Tasmanian Transport Association, said that the complexity of gaining access had led to transport operators employing 'consultants who are experts in the permit process', resulting in 'additional cost to the operators that needs to be passed on to the customer'.
4.72
The National Transport Commission, in its consultation with stakeholders on heavy vehicle routes which commenced in June 2019, identified a number of access challenges including the complex process for vehicle classification and route assessment, a prescriptive and inflexible decision-making framework, inconsistent decision-making and limited risk controls.
4.73
The National Farmers' Federation (NFF) expressed the view that the 28-day timeframe in which road managers are able to deny or grant access was excessive. It argued that in the interests of economic productivity, 'the permit application timeframe should be reduced as much as possible without compromising safety'. NFF also called for guidelines for route assessments that were enforceable and mandatory to increase consistency in road manager decision-making.
4.74
NatRoad advocated for a 'radical overhaul' of the access system to one where 'pre-approvals predominate' and where access decisions are subject to external, merit-based review. It submitted that:
Access for heavy vehicles is a crucial area for reform. An efficient freight supply chain should be able to operate 24 hours, 7 days a week. Requiring heavy vehicles to travel only during daylight hours or in certain specified time periods over less-than-optimal routes impedes productivity, increases operating costs and adds to road congestion.
4.75
The Northern Territory has an open access regime for heavy vehicles which, according to the Northern Territory Department of Infrastructure, Planning and Logistics, has resulted in 'some of the largest and most productive vehicles operating on our network'.
4.76
Mr Campbell Dumesny told the committee that the access licence system in Western Australia provided a system of preapproved roads for different combination types of vehicles. For instance, a triple road train network was 'already pre-mapped on the network, so you don't need to apply for a permit'. Instead operators were accredited, after which they had free range of the approved network.
4.77
Mr Dumesny explained that the associated productivity gains from pulling a triple road train meant that there was 'commercial value in our accreditation system' which was a reason for Western Australian operators being 'so defensive about keeping the National Heavy Vehicle Regulator out of Western Australia'.
4.78
In its submission, the NHVR identified the need to deliver 'improved productivity and access certainty with a modern access regime' as one of its three reform priorities. The NHVR noted that in its view 'the HVNL review should apply an envelope approach to network access, which groups similar vehicle characteristics into one class, rather than having multiple and unnecessary vehicle classes'.
4.79
Ms Michelle Harwood reported on developments in access for heavy vehicles in Tasmania where the Department of State Growth had developed the Heavy Vehicle Access Management System (HVAMS) in partnership with road managers and industry. The goal of HVAMS was 'to provide as much access as possible under notice, rather than via a permit application process' and allowed transport operators to view access options and conditions for various vehicle configurations in real time using an interactive map. Ms Harwood further explained the advantages for transport operators:
As long as they abide by those conditions, they can travel across the network here based on what the map tells them … Permits are still needed for some of the very highly specialised oversize overmass loads, but, in most cases, there's been a significant reduction in the need to apply for permits …
4.80
Further discussion of access for high productivity vehicles and the Performance-based Standards Scheme is in chapter 7. The link between road conditions and road access is discussed in chapter 6.
Fatigue management under the HVNL
4.81
The HVNL provides the regulatory system for fatigue management for heavy vehicles in HVNL jurisdictions, with different rules applying in Western Australia and the Northern Territory. However, fatigue regulation among the HVNL jurisdictions is inconsistent, with the Productivity Commission observing that some states 'have used derogations to retain past fatigue management regulations in addition to the HVNL'.
4.82
The national heavy vehicle driver fatigue laws apply to heavy vehicles that conform to specified criteria (fatigue-regulated heavy vehicles). These are heavy vehicles with a Gross Vehicle Mass (GVM) of over 12 tonnes; a combination when the total of the GVM is over 12 tonnes; buses with a GVM over 4.5 tonnes fitted to carry more than 12 adults (including the driver); and a truck, or a combination including a truck, with a GVM of over 12 tonnes with a machine or implement attached.
4.83
A driver must not drive a fatigue-regulated heavy vehicle on a road while impaired by fatigue. The fatigue laws cover chain of responsibility, counting time, fatigue management exemptions, record keeping requirements, work and rest hours, and the work diary.
4.84
The Productivity Commission found in its national transport regulatory reform inquiry that while there was 'some evidence that fatigue-related safety outcomes have improved in recent years', it was 'not possible to isolate the effect of the HVNL on fatigue-related safety'.
Work and rest hours
4.85
The HVNL provides three work and rest options: standard hours, basic fatigue management (BFM) and advanced fatigue management (AFM). Under standard hours, drivers must not exceed maximum work hour limits or rest less than the minimum rest hours in a certain period set out by law. Table 4.1 sets out the requirements for solo drivers under standard hours.
Table 4.1: Standard hours - work and rest hour requirement (solo drivers)
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In any period of…
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A driver must not work for more than a maximum of…
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And must have the rest of that period off work with at least a minimum rest break of…
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5.5 hours
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5.25 hours work time
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15 continuous minutes rest time
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8 hours
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7.5 hours work time
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30 minutes rest time in blocks of 15 continuous minutes
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11 hours
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10 hours work time
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60 minutes rest time in blocks of 15 continuous minutes
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24 hours
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12 hours work time
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7 continuous hours stationary rest time*
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7 days
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72 hours work time
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24 continuous hours stationary rest time
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14 days
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144 hours work time
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2 x night rest breaks# and 2 x night rest breaks taken on consecutive days
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*Stationary rest time is the time a driver spends out of a regulated heavy vehicle or in an approved sleeper berth of a stationary regulated heavy vehicle. #Night rest breaks are seven continuous hours stationary rest time taken between the hours of 10pm on a day and 8am on the next day (using the time zone of the base of the driver) or a 24 continuous hours stationary rest break.
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Operators with BFM accreditation have more flexibility in when drivers can work and rest. BFM allows for drivers to work up to 14 hours in a 24-hour period, compared to 12 hours for drivers operating under standard hours. See table 4.2 for the criteria for solo drivers under BFM.
Table 4.2: Basic fatigue management—work and rest hour requirement (solo drivers)
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In any period of…
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A driver must not work for more than a maximum of…
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And must have the rest of that period off work with at least a minimum rest break of…
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6 ¼ hours
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6 hours work time
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15 continuous minutes rest time
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9 hours
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8 1/2 hours work time
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30 minutes rest time in blocks of 15 continuous minutes
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12 hours
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11 hours work time
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60 minutes rest time in blocks of 15 continuous minutes
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24 hours
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14 hours work time
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7 continuous hours stationary rest time*
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7 days
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36 hours long/night work time**
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No limit has been set
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14 days
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144 hours work time
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24 continuous hours stationary rest time taken after no more than 84 hours work time and 24 continuous hours stationary rest time and 2 x night rest breaks# and 2 x night rest breaks taken on consecutive days.
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*Stationary rest time is the time a driver spends out of a regulated heavy vehicle or in an approved sleeper berth of a stationary regulated heavy vehicle.
**Long/night work time is any work time (outside of the period midnight to 6.00 am) that is in excess of 12 hours of work in a 24 hour period or any work time between midnight and 6 am (or the equivalent hours in the time zone of the base of a driver).
#Night rest breaks are 7 continuous hours stationary rest time taken between the hours of 10pm on a day and 8am on the next day (using the time zone of the base of the driver) or a 24 continuous hours stationary rest break.
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AFM does not prescribe work and rest hours, but rather allows fatigue to be managed to comply with a fatigue risk management system. The NHVR grants AFM accreditation to operators who can demonstrate that they 'understand the risks these hours can create' and that they 'can and will take steps to off-set these risks'.
4.88
The leading cause of fatigue within the road transport sector is the excessive hours of work required of drivers. As noted in Chapter 2, a 2001 study by the National Transport Commission found one-quarter of drivers were breaking working hours regulations for every trip and over half of drivers reported breaking working hours regulations for at least half of their trips. The study found the reasons for such behaviour was due to drivers wanting to return home (46.8 per cent), to gain more work to earn a living (36.5 per cent) and a result of tight schedules (31.4 per cent).
4.89
A further study conducted by the TWU in 2018 found drivers working excessively long hours, while risking their job by speaking publicly about their concerns. This was in addition to inflexibility with delivery times and pressure exerted by companies and customers for deliveries to be made “on time” without consideration of drivers’ wellbeing.
Views on fatigue management under the HVNL
4.90
Fatigue management was one of the most contentious areas of the HVNL among inquiry participants.
4.91
The National Driver Work Diary (also known as a logbook) is used to record a driver’s work and rest hours and provide evidence that they are compliant with the HVNL. All drivers of fatigue-regulated heavy vehicles who drive more than 100 kilometres from their base must carry and complete a work diary.
4.92
A common refrain among drivers required to apply the law in practice is that it had to be 'not about counting time but about being able to rest when you need to rest and work when you can work'. Drivers described paradoxical situations where they had been prevented from working due to too much rest:
I've had an instance where I pulled up and went to bed for seven hours. I got up about two o'clock in the morning. I drove for two hours. I felt tired. I went back to bed for four hours, and that totally messed up my book for the next couple of days. Effectively, for that day, if I remember correctly, I worked eight hours of driving time, but the book said I was out of time.
4.93
Ms Sharon Middleton, president of the South Australian Road Transport Association, told the committee that the law did not take into account unexpected events on the highway. She noted the problem for a driver who has come off two days rest and an hour into the journey is stuck at a traffic accident for five hours:
What does he do? Does he turn that into a 7½ hour break—he's just come from two days off and he's only got an hour up the road—or does he get going? Is he allowed to reset? The laws say he can't. So what happens is that for every day of that journey it will now impact not just on this week but next week and the week after. Eventually he's going to have to miss a trip, because the reset that he has, to work those longer hours, has all been thrown into turmoil, because of something that happened on the road.
4.94
Ainsley Law submitted that a common mistake made by its clients was incorrectly assuming that the clock is reset by the second break:
It is not uncommon for drivers to work a short shift and then take another 7 hour or longer rest break before starting work again. Many drivers believe that the clock is “reset” by the second long break. Often, some of the time from their second day is captured in the first 24 hour period. When this happens, they will have committed serious driver fatigue offences, but honestly believe they have worked two short days with more than the required amount of rest.
4.95
Conversely, operating rules were such that drivers were forced to stop, even if they were 30 minutes away from home or were moving livestock that would be left on the side of the road.
4.96
Long distance driver Mr Andrew Bishop described instances in which he and drivers in a similar position were in effect 'forced to break the law':
I had one instance where I was queuing up for seven hours to get loaded and then was expected to still get the load through to Melbourne the next morning. How do you do that? … I had already slept all night. I can't go back to bed because as the queue moves I have to move the truck up.
4.97
On a second occasion, Mr Bishop was forced to defer a delivery when a loaded truck was required to undergo repairs. He explained that the 'little bit of driving which I did from our yard to the mechanics I couldn't put in my work diary because that would just mess up my whole time' for the delivery the following day. Drivers argued that work pressures and practicalities meant that the 'driver simply doesn't have a choice … if you don't complete the task, you haven't got a job when you get home'.
4.98
The Transport Workers' Union of Australia submitted that drivers falsifying logbooks demonstrated 'the ineffectiveness of existing safety frameworks and the broader failure to address the underlying pressures which lead to excessive hours of work'.
4.99
Drivers informed the committee that sleep requirements and fatigue risk factors varied between individuals (for example, preference for driving at night, fitness for duty) and by circumstance (road surface or weather conditions) and the logbook system did not recognise these differing requirements. Mr Gordon Mackinlay, president of the National Road Freighters Association, accepted the need for caps on driving hours, but considered that the law should 'give us total flexibility to do it when we can do it and when we need to do it'.
4.100
Mr Bishop said that with health experts recommending seven to eight hours sleep, in his opinion the rules did not allow enough time for adequate sleep:
By the time you pull up and you mark off that you've pulled up for the start of your seven hours, then wind down—get out, stretch your legs, get yourself organised and climb into the bunk and doze off to sleep, and set the alarm so you get up in the morning and you're ready to go right on your seven hours—you're lucky if you're getting six hours sleep for the night.
4.101
Drawing on its experience in representing drivers charged with fatigue management offences under the HVNL, Ainsley Law observed in its submission that driver fatigue laws are compromised by lack of training and understanding by drivers. Ainslie Law maintained that work diaries were issued to drivers with a truck licence and contained some 20 pages of instructions, but the drivers received no training on its use. Some were guided by the companies they work for, but many drivers that become Ainsley Law clients after they have made a mistake in their work diaries had no idea what they had done wrong.
4.102
In its review of national transport regulatory reform, the Productivity Commission recommended:
The amendments to the Heavy Vehicle National Law should remove detailed fatigue management requirements from legislation and empower the National Heavy Vehicle Regulator to:
publish ‘acceptable means of compliance’ with fatigue management regulations
set outer limits on driving hours
provide concessions from prescribed aspects of fatigue management regulation, where the National Heavy Vehicle Regulator is satisfied that more effective systems of fatigue management are in place.
4.103
A number of submitters supported a less prescriptive, risk-based approach. The Australian Trucking Association submitted that fatigue management law should provide businesses with two options: (1) ‘a new, performance-based framework that would enable operators to manage fatigue as a risk rather than counting time, including by adopting new technology and proven fatigue management systems’ and (2) a simplified system of prescriptive fatigue rules, to support businesses whose size or risk profile did not warrant a more complex approach. A multi-tiered risk-based approach was also supported by the NHVR and the South Australian Road Transport Association.
4.104
Mr Scott Finemore, general manager of Finemore Transport, highlighted the importance of 'managing high risks rather than just the compliance and administrative controls', noting that compliance 'is not necessarily safer, and better rewards and flexibilities are required for those of us who make a safety investment'.
4.105
Representatives of the NTC in their appearance before the committee reported that in its review into the HVNL the NTC was seeking to simplify fatigue laws but also to provide arrangements for 'more sophisticated operators who may invest in advanced safety technologies to support the productivity and efficiency of their operations'.
4.106
Mr Petroccitto, in his appearance before the committee, endorsed many of the views of stakeholders on the need to give drivers more flexibility in how they manage fatigue. He also recognised that '[what] might work for the livestock sector might not necessarily work for line haul'. Mr Petroccitto emphasised the importance of the review of the HVNL:
The current provisions in the HVNL are outdated. They don't reflect the advancements in safety technology, in fatigue detection technology, but also some of the investment that good operators are making in managing fatigue. We need a policy framework that reflects that, which then allows the regulator to be able to do its job effectively. If we can do that in a partnership approach, we know that we should be able to deliver a better safety outcome for all road users.
Electronic work diaries
4.107
An electronic work diary (EWD) is an alternative to a written work diary and automatically monitors and records the daily, weekly and fortnightly work and rest times of a driver to the minute. The EWD is argued to be simpler and more efficient, record more accurately and transparently, and provide real-time data to transport operators and alerts to drivers approaching a work time limit.
4.108
Stakeholders expressed divergent views on electronic work diaries and whether they should become mandatory for use under the HVNL.
4.109
The Livestock and Rural Transporters' Association of Victoria stated that its 'smaller operators would be very concerned at the ongoing cost and administrative impact of the mandatory use of Electronic Work Diaries' and requested 'rural and livestock operators trial and evaluate any technology long before it is brought into commercial use'.
4.110
In his submission, driver Mr Mike Williams outlined his experience with the 'real and significant advantages' brought about by using EWDs. As well as keeping track of hours and breaks and assuring 'no more spelling issues' or 'guessing the name of the parking bay', he predicted that EWDs would 'finally make DCs [distribution centres], owners and managers have to account for all the time' spent waiting hours for paperwork.
4.111
While there was broad support for the reduction in paperwork, some witnesses were wary of adopting EWDs while the current prescriptive work and rest times remained. Ms Mysko of United Transport Group raised practical concerns for drivers using EWDs amid stringent enforcement:
If we give him or her an electronic work diary, next thing you know they're trying to find a parking bay to pull up if they're long distance … There are times when you really want to pull up in a parking bay and you just can't find one. So I don't think we know enough about the enforcement behind the electronic work diary.
4.112
Toll Group also addressed the issue of EWD users being 'potentially infringeable' from the moment a driver exceeds allowable hours, while a user of a written log book 'has a fifteen-minute window within which to "hide" and may, in fact, never be pulled over and checked'. Toll Group referred to debate taking place within the industry on the merits of 'allowing users of EWDs an 8 minute "tolerance" that would build equity into the system and encourage uptake'.
4.113
In Mr Williams' view, insufficient rest areas on highways and truck parking in towns for mandatory stops will mean that trucks will be 'pulled up on off ramps, on the side of the road anywhere'. He also noted that you 'can't plan for accidents or road work' and unless you 'have some time available your EWD will record a breach'.
4.114
Another concern about EWDs in general was that they did not record all the working time of a driver. In particular, as Mr Jerry Brown-Sarre submitted, it 'will not record any time spent outside the cabin or when the key is turned off, or what the driver was doing ie; loading unloading, repairing vehicles, washing vehicles or other work-related time'.
4.115
The TWU refuted the notion that EWDs were infallible, arguing that:
… drivers are able to by-pass electronic logbook systems through the use of multiple logins in a single vehicle or the use of multiple vehicles to enable excessive hours of work. Furthermore, electronic logbooks are notorious for having satellite and technical issues, undermining their reliability …
4.116
Larger transport companies were generally more enthusiastic about the take-up of EWDs. Linfox had over a thousand devices installed in its fleet and considered them a 'proven means of reducing accidents'. ALDI Stores supported the mandatory adoption of EWDs and reported to the committee that it had completed trials of EWDs. Its operations in Queensland, New South Wales, Victoria and South Australia were required to use EWDs from the end of February 2021.
4.117
Toll supported mandating EWDs by 2025, citing in particular the advantages to drivers in making fatigue rules clearer and providing warnings of the need for rest breaks. It concluded, if 'coupled with advice about available space at upcoming rest bays (as happens on some routes in the United States), this could be a practical and valuable fatigue management tool'.
4.118
Mr Gary Mahon of the Queensland Trucking Association could see advantages in the calculations made by EWDs and drivers not needing 'to understand in the vicinity of about 2,400 pages of legislation' every time they drove. He further remarked, that there is 'extraordinarily good technology available to us. … Why is that not properly reflected in the law?'
4.119
The TWU observed that whilst EWDs are ‘often worthwhile for other purposes such as addressing issues related to drivers being fined for misspelling names in manual logbooks, [they] deal with the symptom rather than the underlying problems within the industry’.
Fatigue management in Western Australia and the Northern Territory
4.120
Fatigue management in the Northern Territory and Western Australia is based on work health and safety legislation rather than prescriptive transport legislation and is focused on outcomes rather than processes.
4.121
In the Northern Territory, road transport operators and workers are required to manage the risk of fatigue under the Work Health and Safety (National Uniform Legislation) Act 2011. A road transport fatigue management code of practice was discontinued in March 2020 and new guidelines are under development.
4.122
The Western Australian occupational safety and health legislation focuses on rest time rather than work. The legislation requires operators to ensure that there is a fatigue management plan that covers every commercial vehicle driver and that records are kept. Drivers in Western Australia can work a maximum of 168 working hours in any 14-day period, compared to 144 hours for HVNL jurisdiction drivers. A work record is maintained.
4.123
Western Australia has a code of practice on fatigue management for commercial vehicle drivers, which provides guidance to the transport industry, enforcement authorities and the courts. Operating standards for solo drivers in Western Australia are summarised in table 4.3.
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Table 4. Operating standard for solo drivers (Western Australia)
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At least 20 minutes of breaks from driving for every five hours of work time including a break of at least 10 consecutive minutes during or at the end of five hours.
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No more than 168 hours of work time in any 14 day period.
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At least 27 hours of non-work time in any 72 hour period, including at least three periods of at least seven continuous hours of non-work time.
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No more than 17 hours between non-work periods of at least seven continuous hours.
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If there is shiftwork on five or more consecutive days, at least 24 continuous hours of non-work time between shift changes.
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Note: All of the items above and one of the options below must be complied with, so far as is practicable.
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At least two periods of 24 continuous hours non-work time in any 14 day period OR
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At least four periods of 24 continuous hours non-work time in any 28 day period (provided hours of work do not exceed 144 hours in any 14 day period within the 28 days).
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Source: WA Code of practice fatigue management for commercial vehicle drivers, 2019, p. 9.
Views on fatigue management in WA and NT
4.124
The fatigue management systems in Western Australia and the Northern Territory were strongly supported by drivers who had operated under them and some remarked on the difficulty in adjusting to the HVNL on their journeys to the eastern states. Truck driver advocate Mr Robert Bell emphasised the simplicity of the WA scheme:
The truck drivers in the eastern states have an extremely onerous and manifestly excessive enforcement regime. I lived in Western Australia for some time and drove road trains out of Perth up to the Kimberley and the Pilbara and into the Northern Territory. You basically drive till you're ready to go to bed at a reasonable time. You go to bed for the night, you get up the next morning and then you drive again.
4.125
Others drivers lauded the ability to break up the driving day:
In WA every five hours we get a 20-minute break. It can be a 10-minute consecutive time, and then you can break up your next 10 minutes into one-minute intervals if you want.
4.126
In the view of Mr Castanelli, for drivers from the eastern states entering Western Australia, the main point of difference was 'you need to be careful about working six hours straight'. Aside from that, he maintained, drivers could continue running their log books as normal and be compliant.
4.127
For some submitters, the success of the fatigue management schemes in Western Australia and the Northern Territory was a major sticking point for the adoption of the HVNL in those states. The Livestock and Rural Transport Association of Western Australia opposed Western Australia joining the HVNL, arguing:
The operating standards for fatigue in WA offer flexibility in the hours of work to reflect the geography of the state, the heavy vehicle operating environment, human physiology and the distances driven. Under the NHVR, the loss of flexibility in driving hours and a reduction in the ‘safety culture’ approach would lead to increased fatigue risk and negative road safety outcomes.
4.128
The Australian Logistics Council advocated for a single nation-wide HVNL which Western Australia and the Northern Territory should join but recommended that the HVNL should adopt the WA model for fatigue management. In the ALC's view, the WA-style work health and safety legislative framework would mean that:
1. The general duties contained in the Law to take all reasonably practicable steps to eliminate (fatigue) risk will need to be complied with;
2. A subordinate legislative instrument will merely prescribe a maximum number of hours a person can drive per day and per week; and
3. The Law will require heavy vehicle operators to develop a fatigue management plan that will form part of a mandatory safety management system (SMS), so as to comply with a National Operating Standard …
4.129
Mr Petroccitto observed that 'the outer limits in WA and the outer limits on the eastern seaboard under HVNL, under AFM, are not that much different'. In his view, if participants were prepared to 'drop the boundary discussion' and look to 'the best possible outcome', then 'we might be able to land a driving regime that satisfies everyone'.
Heavy vehicle accreditation
4.130
Accreditation schemes offer heavy vehicle industry participants regulatory concessions in return for demonstrating that they have implemented management systems that achieve the objectives of defined industry standards. Accreditation schemes support traditional safety compliance programs, such as prescriptive regulation and penalties and sanctions through vehicle inspections and on-road enforcement.
4.131
In Australia, heavy vehicle accreditation schemes are voluntary, provided by government and industry, and were estimated in 2018 to have been taken up by some 20 per cent of industry participants. An analysis of heavy vehicle accreditation schemes in Australia undertaken for the NHVR found that in 2017 there were 6607 accredited operators under the National Heavy Vehicle Accreditation Scheme and 212 members of the TruckSafe scheme.
4.132
The Productivity Commission, in its 2020 inquiry report National Transport Regulatory Reform, concluded that while heavy vehicle accreditation gave operators flexibility on some aspects of their business, due to outdated data the effects on safety are 'unclear'. It also raised the lack of recognition between the multiple schemes, meaning that for operators 'who participate in multiple schemes this imposes an unnecessary compliance cost'.
National Heavy Vehicle Accreditation Scheme
4.133
The National Heavy Vehicle Accreditation Scheme (NHVAS) is administered by the NHVR. Heavy vehicle operators can apply for accreditation in four modules—mass management, maintenance management, basic fatigue management and advanced fatigue management. Accreditation recognises that a heavy vehicle operator has robust safety and management systems in place. It also affords the operator concessions, exemptions and increased flexibility for the modules in which it holds accreditation, such as by allowing operators to carry larger loads or bypass some vehicle inspections.
4.134
Accreditation is usually granted for two years and audits of an operator's compliance with module standards are carried out by approved independent auditors. According to a report on the NHVAS undertaken by the NHVR in 2018, auditors 'must be recognised as a fit and proper person and hold certification in heavy vehicle auditing [and]…demonstrate experience in the heavy vehicle industry'. To be a maintenance and mass management auditor they must have 'received training provided or recognised by the NHVR or have arrangements with a suitably qualified person to provide technical input into an audit'. Auditors are not permitted to undertake more than two consecutive audits of a module for an operator.
Other accreditation schemes
4.135
The Western Australian Heavy Vehicle Accreditation Scheme (WAHVA) is administered by Main Roads Western Australia. WAHVA is compulsory for operators wishing to use restricted access vehicles in Western Australia and covers around 10 per cent of the total heavy vehicle fleet in Western Australia. Its modules cover fatigue, maintenance and dimension and loading. According to accreditation auditor Mr Glyn Castanelli, 'audits are conducted every 12 months and Main Roads WA has a requirement to randomly audit five per cent of current operators each year'.
Accreditation scheme effectiveness
4.136
A number of industry stakeholders expressed frustration at the number of auditing and accreditation bodies that they have to deal with and the lack of recognition between those schemes. Mr Rodney McIntosh, human resources and compliance manager from O'Brien Transport Services, explained:
You've got companies now that are coming to us, and they want all your information that you've got, like all your registrations, all your driver details, copies of your licenses and all your insurance. Most of that we already provided to them, but they've just gone to the next level. The other side of that is that we already get audited for that through NHVR … but that's not enough for some of the transport companies that we might work for or some of the businesses that we do work for.
4.137
The Livestock and Rural Transporters' Association of Victoria noted that its members deal with dozens of sites such as saleyards and processors which insist on 'inductions, accreditation and training' to cover their legal responsibilities under CoR.
4.138
The result of the increased administration, according to Mr Dean O'Brien from O'Brien Transport Services, was:
We're spending all our time auditing instead of being out and helping [with compliance] at the nuts and bolts. We're not out training people; we're going through audits. We just need one unified body that says, 'You comply to legislation. Here it is.' But it's not going to happen. They're all businesses. It's a money making machine.
4.139
The committee heard that often the compliance audits were conducted by the same individual for different bodies and that the company had to pay for the audit on each occasion.
4.140
Some industry participants favoured a single, mandatory national accreditation framework.
4.141
The Australian Logistics Council (ALC) argued that 'the low uptake of the current accreditation schemes suggests the market place has decided the schemes aren't fit for purpose'. Instead the ALC proposed that the nation's heavy vehicle fleet should be operated only by operators that meet an agreed set of national operating standards which should be incorporated into the HVNL. ALC chief executive officer Mr Kirk Coningham stated that meeting the standard took more effort than cost, but that a uniform standard would identify operators doing the right thing. Regarding the standards, Mr Coningham said that:
… a lot of these are not cost measures, and a lot of these will be very simple for reputable operators in the industry already. They'll be more difficult for someone coming in who's trying to pretend that they're a trucking company. I think that just the standard itself will actually be—and should be—welcomed by the operators in the industry right now, because the ease with which they can be compliant is almost there already. Whereas … for a new person to come into the industry … they're going to have to be held to a standard that everyone else is already held to.
4.142
According to the ALC, the adoption of safety management systems through the provision of a common set of standards would reduce duplication and 'encourage the operators of heavy vehicle safety schemes to mutually recognise each other's audits and so reduce the number of audits that operators have to undergo and pay for'.
4.143
Toll Group also supported 'minimal checks like whether [operators] have the financial capacity to maintain a truck' and the introduction of an 'operator licensing system'. Mr Mark Williams suggested that a licensing system:
… would get rid of the price-cutting blokes and people entering the industry who don't know their costs, who don't care about their costs, who are paying under award and doing all the wrong things. If they had a licence and continued to do the wrong things, there would be trigger audits on them generated by the authorities—through the NHVR perhaps or some other body that was responsible for that. They'd have to show cause if they continued with that practice, and it would be three strikes and you're out.
4.144
ALRTA argued against mandatory accreditation on the basis that it would impose a significant regulatory and cost burden on businesses and cost hundreds of millions of dollars annually to administer. It suggested instead that regulators be empowered 'to prohibit certain individuals or entities from operating or controlling any type of road freight business on a case-by-case basis'.
4.145
Mr Petroccitto maintained that the NHVAS administrative fee and the costings for its modules were modest and that it was run for its safety outcomes, not to make a profit. The two-yearly auditing fees were set by the auditors, not the NHVR.
4.146
The Australian Trucking Association, which delivers TruckSafe, maintained that its safety accreditation scheme audited businesses to a level above that required by the law. ATA contended that the NHVAS does not cover fatigue management under standard hours, speed management, speed limiter tampering, mass management for vehicles operating at general mass limits, management of vehicle dimensions, load restraint nor compliance with safety duties in the HVNL Chapter 1A.
4.147
ATA submitted that there was unnecessary duplication with the NHVAS as 90 per cent of its businesses had both certifications. It proposed that the NHVR should cease to run a certification scheme and instead confine itself to regulating providers.
4.148
An alternative proposal for an industry-wide scheme was the five star trucking concept provided by the Transport and Logistics Centre. Dr Daryll Hull, Managing Director of TALC, informed the committee that this was ‘a ratings system for transport operators, in terms of safe work and competitive business practice, setting national industry standards’. The proposed system would rank operators from basic compliance to best practice for factors including speed, fatigue, driver health and vehicle and conditions management. Operators with a five star rating would receive concessions such as fewer roadside heavy vehicle inspections, extended working time hours and infrastructure access.
4.149
Mr Petroccitto responded that the TruckSafe scheme had some elements 'that would be worthy of consideration in a national framework', but that it did not 'make sense to duplicate any of the national accreditation framework things that are already within the law'. Instead he advocated a 'single administrative scheme through a regulatory agency which provides certainty and clarity to the whole supply chain [rather] than having multiple schemes that operators would need to comply with to get jobs or win contracts'.
4.150
Mr Petroccitto also indicated that the NHVR was also working with the WAHVA to see if there could be 'some mutual recognition of the two government schemes'.
Centralisation of accreditation documentation
4.151
Several stakeholders proposed the establishment of a resource, or the augmentation of an existing NHVR portal, which would list the accreditation scheme or schemes under which transport companies operated.
4.152
Mr Gordon Mackinlay suggested that the need to forward documentation to customers at short notice was a particular issue for small transport companies as they found it difficult to supply paperwork when on the road.
4.153
According to Mr Rodney McIntosh of O'Brien Transport Services, centralised documentation would mean:
If there were one portal, that company could go into that portal and put in 'O'Brien Transport'. 'Yes, they're accredited under this, this, this and that, and they've done all that. Okay, no worries. All we need from them is their insurance documentation, and away we go.
4.154
Some stakeholders suggested that a broader range of data be available to the industry including maintenance and compliance records of companies, as well as their track record in paying tax, super and wages, fatigue and weight management and work health and safety.
Training of auditors
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In its submission, ALC responded to criticisms within industry of the quality of audits and auditors. ALC argued that the current level of training of auditors at vocational education and training certificate IV level within the Australian Qualifications Framework was too low. ALC recommended that the NHVR, in partnership with industry, develop a safety auditor training course falling within the national Transport and Logistics Training Package at Diploma (AQF certificate V) level.
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Mr Petroccitto agreed that more work could be done to improve the quality of auditing and that this would form part of the consideration, under the HVNL review, of a national accreditation framework.