NHVR successfully prosecutes logging operator and its director following ongoing fatigue breaches

The National Heavy Vehicle Regulator (NHVR) has successfully prosecuted a Tasmanian-based logging company and its director following pleas of guilty to serious offences under the Heavy Vehicle National Law (HVNL).

As a result, the Tasmanian Local Court issued two Supervisory Intervention Orders (SIOs) worth $100,000 to the company and its director and ordered fines of $80,000 and $8,000, respectively.

Background

Following an extensive investigation, the NHVR identified that over a 12-month period, the company had 251 fatigue-related breaches which were undetected by the company and its director. Due to the management of these practices, charges were laid under sections 26G (Category 2) and 26H (Category 3) of the HVNL.

The Court’s decision 

The Tasmanian Local Court found that the company and its director had failed to take reasonably practicable steps as an employer (company) and scheduler (director) in the Chain of Responsibility (CoR). The director also failed to take reasonably practicable steps as an executive of the company to exercise due diligence to ensure the company complied with its safety duty.

According to the Court, the company and the director’s failure to take reasonably practical steps, as mandated by the HVNL, resulted in a culture of continued and systemic breaches of the safety duties imposed by the HVNL. 

These failures exposed employed drivers of the company and the public to a risk of death or serious injury.

As a result of the above, the Court issued two SIOs worth $100,000 to the company and its director, requiring them to address their faults in fatigue management, and ordered fines of $80,000 and $8,000, respectively.

What are SIOs and when are they ordered?

SIOs are orders of the court which require the convicted person, at the person’s own expense and for a stated period of no more than one year, do one or more of the following:

• state measures the court considers will improve the person’s compliance with the HVNL including, for example, training and supervising staff; obtaining expert advice about HVNL compliance; and installing equipment for monitoring or managing compliance with the HVNL
• implement stated practices, systems or procedures for monitoring or ensuring compliance with the HVNL
• give compliance reports about the convicted person to the NHVR or the court (or both) in a stated way and for a stated period
• appoint a person to help and monitor the convicted person’s compliance with the HVNL and give the NHVR or court (or both) compliance reports in relation to the convicted person.

The court will only issue a SIO if it is satisfied the order is capable of improving the convicted person’s ability or willingness to comply the HVNL. A contravention of a SIO without reasonable excuse carries with it a maximum penalty of $10,000.  

The SIOs ordered in this case

The SIO ordered against the company was for 12 months with conditions to receive training in the following units:

• training for all senior management, schedulers, and compliance officers in: 
  • applying and administering a fatigue risk management system
  • completing a work diary in the road transport industry.
• training for all drivers in:
  • applying a fatigue risk management systems
  • completing a work diary in the road transport industry.
• within six months of the SIO being made, engage an accredited installer of Teletrac Navman for the installation of the vehicle tracking technology in all fatigue-regulated heavy vehicles registered to the company. The Installation must include the Teletrac Navman and Electronic Work Diary add-on
• within eight months of the SIO being made, implement a policy that all drivers of fatigue-regulated vehicles use electronic work diaries.

The director’s SIO was also for 12 months with conditions to receive training in the following units:

• administration of a fatigue risk management system 
• monitoring the safety of transport activities
• ensuring safe transport activities for the CoR.

The director must also not engage in activities as a scheduler until the NHVR confirms that it has received the certificates of completion for the above training. 

Significance of decision

In announcing the decision, the NHVR said that:

“both outcomes are significant as they will help improve safety across the industry…the sentence is designed to deter the company and [director] from repeating the offence while protecting the safety of industry and the broader community. We urge all companies to review their training practices to manage the fatigue of their drivers.

Fatigue is a serious issue that can result in serious injury or death. It is imperative you train your drivers and take on the responsibility of fatigue management…using orders such as these [i.e., SIO], risks can be addressed and encourage safer practices.”

If you have any questions about this article, fatigue management or how to respond to a Supervisory Intervention Order, please get in touch with partner Nathan Cecil or a member of our Transport, Shipping & Logistics team below.

• This article was originally published in CoR Adviser. The article is © 2023 Portner Press Publishing Pty Ltd and has been reproduced with permission of Portner Press.

Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Nathan Cecil

Melanie Long

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