Recent decision clarifies work diary obligations and counting overlapping time

In a recent decision, the South Australian Supreme Court confirmed that heavy vehicle drivers may be operating under multiple overlapping 24-hour periods. Drivers operating under multiple overlapping periods need to comply with their permitted work and rest hours across each of those periods.

What happened?

Barnes was a self-employed driver of a heavy vehicle operating on ‘standard hours’.

Barnes arrived in Alice Springs at 6.00 pm on 27 November 2014, at which time he ceased work. He did not work at all on 28 November 2014. He spent the day visiting friends in Alice Springs and made no entry in his work diary during that day.

He started working again at 12.30 pm on 29 November 2014. He recorded in his work diary that between 12.30 pm on 29 November 2014 and 12.30 pm on 30 November 2014 he worked a total of 14 hours, interspersed with various periods of rest. He also recorded that he rested from midnight on 29 November 2014 until 7.45 am on 30 November 2014, when he resumed driving.

At some point during the afternoon of 30 November 2014, Barnes crossed the border back into South Australia. He was stopped by the police at 4.15 pm. After examining his work diary, the police charged Barnes with contravening section 250 of the Heavy Vehicle National Law by working more than 12 hours in a 24-hour period commencing at 12.30 pm on 29 November 2014.

What does the HVNL say?

In any period of 24 hours, a solo driver operating under standard hours must not work for more than 12 hours and must have at least seven continuous hours of stationary rest.

When counting time for the purposes of a 24-hour period, the time must be counted forward from the end of a ‘relevant major rest break’ (a break of at least five continuous hours).

Magistrate’s decision

Barnes argued that the time leading up to 12.30 pm on 29 November 2014 was not rest time; rather, it was time off or personal time. Accordingly, the end of the ‘relevant major rest break’ could only be a reference to 7.45 am on 30 November 2014. Barnes contended that as he had not worked more than 12 hours in the 24-hour period commencing at 7.45 am on 30 November 2014, he did not contravene the prescribed maximum work time under the HVNL.

The Magistrate accepted Barnes’ argument. Her Honour accepted that in the period leading up to 12.30 pm on 29 November 2014, Barnes was ‘not working at all’, with the result that when he started work at 12.30 pm on that day, it was not the end of a ‘relevant major rest break’.

The Magistrate found Barnes not guilty on the basis that, while he had worked for 14 hours during the 24-hour period commencing at 12.30 pm on 29 November 2014, the relevant 24-hour period commenced 7.45 am on 30 November 2014, and Barnes had not worked more than 12 hours in that period.

Supreme Court’s decision

The police appealed the decision to the Supreme Court, arguing that HVNL treated all time as either work time or rest time; that there was no other category of time, such as time off or personal time.

The Supreme Court agreed that notions of ‘work time’ and ‘rest time’ are intended to be exhaustive of a driver’s time. They do not allow for a third category of time, for example, when the driver is between driving jobs, or having personal time or time off.

The Supreme Court noted that there is nothing in the HVNL that suggests that the counting of work time was to stop when Barnes took a major rest break from midnight on 29 November 2014 and to recommence when he resumed work at 7.45 am on 30 November 2014. While work time may also be counted from that time, that need not be to the exclusion of the earlier period continuing to run.

The Supreme Court said:

It is true that this has the effect that during the morning of 30 November 2014 there were two 24 hour periods running. But there is nothing unworkable, or even confusing, about the legislation operating in that way. To the contrary, it is plain to me that this is precisely how the legislation was intended to operate. It was intended to operate by reference to a series of rolling, and potentially overlapping, periods of time.

The Supreme Court allowed the appeal and remitted the matter to the Magistrate to decide whether Barnes could make out the ‘reasonable steps’ defence.

Lessons to be learned

The decision provides support for the approach taken by the police when pulling over vehicles, inspecting work diaries and counting work and rest time.

The decision illustrates that drivers need to be very careful that they are keeping track of their fatigue obligations across all relevant periods (including overlapping periods).