New South Wales Consolidated Regulations

ROAD TRANSPORT (GENERAL) REGULATION 2005 - REG 49

49 Duties on employers, prime contractors and operators

(1) This clause applies to:

(a) the employer of an employed driver of a regulated heavy vehicle, and

(b) the prime contractor of a self-employed driver of a regulated heavy vehicle, and

(c) the operator of the regulated heavy vehicle if the driver is to make a journey for the operator.

(2) The employer, prime contractor and operator each must take all reasonable steps to ensure that the employer’s, prime contractor’s or operator’s business practices will not cause, by act or omission, the driver:

(a) to drive on a road or road related area while impaired by fatigue, or

(b) to drive while in breach of his or her work and rest hours option, or

(c) to drive in breach of another law in order to avoid driving while impaired by fatigue or while in breach of his or her work and rest hours option.

Maximum penalty:

(a) in the case of an individual-20 penalty units (in the case of a first offence) or 40 penalty units (in the case of a second or subsequent offence), and

(b) in the case of a corporation-100 penalty units (in the case of a first offence) or 200 penalty units (in the case of a second or subsequent offence).

Examples of business practices that may cause a driver to drive while impaired by fatigue by omission:

• failing to provide for remuneration for time spent queuing,

• failing to provide rest breaks in a driver’s schedule,

• failing to provide for contingency plans for unexpected traffic delays,

• failing to provide for loading or unloading in schedule times.

(3) The employer must not cause the driver to drive the vehicle unless:

(a) the employer has complied with subclause (2), and

(b) the employer, after making reasonable inquiries, is satisfied that the scheduler has complied with clause 50.

Maximum penalty:

(a) in the case of an individual-15 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence), and

(b) in the case of a corporation-75 penalty units (in the case of a first offence) or 150 penalty units (in the case of a second or subsequent offence).

(4) The prime contractor and operator each must not cause the driver to drive the vehicle, or enter into a contract or agreement with the driver to that effect, unless:

(a) the prime contractor or operator has complied with subclause (2), and

(b) the prime contractor or operator, after making reasonable inquiries, is satisfied that the scheduler has complied with 50.

Maximum penalty:

(a) in the case of an individual-15 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence), and

(b) in the case of a corporation-75 penalty units (in the case of a first offence) or 150 penalty units (in the case of a second or subsequent offence).

(5) A person accused of an offence under this clause does not have the benefit of the mistake of fact defence.

(6) In this clause, "business practices" of an employer, prime contractor or operator, means the practices of the employer, prime contractor or operator in running the business, and includes:

(a) the operating policies and procedures of the business, and

(b) the human resource and contract management arrangements of the business (including the method by which driver remuneration is calculated), and

(c) arrangements for managing safety.