Electronic Work Diaries – Caveat Emptor

In this post I will be discussing some of the potential limitations associated with the use of approved Electronic Work Diaries (EWDs), I fully understand that a lot of the decisions regarding EWDs were made pre 2014 and not made by the NHVR.

I am hopeful that the HVNL review will produce new risk-based compliance models that will introduce alternatives to the EWD or written work diary, like the tiered approach that TfNSW is achieving for access management (NSW HML article).

Hopefully, you will find this EWD article useful when thinking about your approach to heavy vehicle safety and compliance management.

Introduction

I have spent the last decade developing, implementing, and managing Heavy Vehicle National Law (HVNL) compliance systems for one of Australia’s largest supply chains, the business is one of the leaders in the use of heavy vehicle telematics systems.

The telematics systems in the business track thousands of vehicles and sends more than 40,000 messages per minute between allocations rooms and vehicles across Australia in peak times.

The business uses telematics systems for a variety of productivity functions and importantly for HVNL and National Heavy Vehicle Accreditation Scheme (NHVAS) compliance, as well as due diligence processes.

Over the last ten years I have developed a deep understanding of the HVNL driving hours compliance requirements and have observed faults in many “electronic” driving hours compliance management systems available on the market, the faults in the systems mean that they do not produce exceptions in line with the requirements of the HVNL. Some common mistakes include:

• Congruent counting of night rests and night rests taken on consecutive days

• Long/night work “double dipping” by counting the same hours twice

• Counting time “backwards”

I have often found these issues when auditing transport companies and have seen a lot of truly angry and disappointed transport operators when I explain to them that the system that they have just signed a multiyear contract for does not work as expected.

I have also had multiple upset technology providers tell me “we just build what our customers ask for” or “now aware and will work to fix the issues”.

I understand that non-approved devices are not regulated, and that the HVNL is complex, however, the consumer should be getting what they pay for and frankly the drivers deserve better.

Approved EWDs to the rescue?

At the time of publishing this article (January 2021) the National Heavy Vehicle Regulator (NHVR) has approved four EWD options, some of these options are from “known” technology providers to the Transport Industry and some are relatively unknown.

Many transport operators will assume that an Approved EWD will ensure that the technology is working in strict accordance with the HVNL, unfortunately this is not entirely the case and not what EWDs are designed for.

EWDs – A Regulatory Device

An EWD is a regulatory device that is an “electronic” piece of paper with basically the same amount of validation of the driver inputs. EWDs are an alternative to a written work diary so thinking “I am compliant because I use an EWD” is the same as thinking “I am compliant because I use a written work diary” not a great compliance strategy.

To increase take up of EWDs and to ensure “parity” with the written work diary, in 2018 the NHVR released the EWD Compliance Policy and EWD Standards which are based on the Compliance Policy.

For an EWD to be approved it must be able to demonstrate compliance with the EWD Standards, including the “rule sets” for the various work and rest options of the HVNL.

The NHVR provides test data for the technology providers to test and demonstrate that their systems work in line with the rule sets and therefore the EWD Compliance Policy.

The Compliance Policy is “guidance” for HVNL Authorised Officers in how to enforce EWD compliance.

EWD Enforcement vs HVNL Compliance

Approved EWDs are only required to show events that are enforceable under the NHVR Compliance Policy, put another way, a breach event need only appear if the driver can be fined or prosecuted under the Compliance policy.

The rule sets are hard coded not to show breach events under 15 minutes or minor breaches in the compliance view or investigation aid (even though the driver is in breach), if an Authorised Officer manually reviews the record and identifies the breach then an infringement can be issued (fines for minor breaches are $454 on the side of the road or $4540 in court maximum per offence).

For clarity: the driver could be in complete compliance in the EWD Compliance View or Investigation Aid but be accumulating many thousands of dollars of fines each day.

Aside from the potential of fines for minor breaches, by relying on the rule set alone in an Approved EWD for HVNL compliance, a driver working under standard hours does not need to receive an alert for a breach event until 7 hours and 45 minutes after he / she starts work (no 5½ hour breaches), for a BFM driver this is 9 hours (no 6¼ hour breaches).

Driving for 7 hours and 45 minutes or 9 hours without a break significantly exposes the driver to the risk of “driving whilst fatigued” for which he or she could be fined in court $6850 and lose 3 demerit points.

If a Transport Operator’s business practices allowed this to occur, they may not be compliant with HVNL Sections 26C Primary duty and or 26D Duty of executive of legal entity.

Check the FAQs (Facts)

The rule sets and the test data provided for testing are designed for EWD Compliance Policy outcomes and the testing is limited to those outcomes rather than strict HVNL compliance which for me raises several concerns when I see things like the below on an Approved EWD provider’s website in the FAQ section:

Q. “Will EWDs record in 15 minute blocks, like the written work diary?”

A. “No. Under the EWD Standards, EWDs will record time in minutes for more accurate records. So now a 17min break and a 43min break will equal 60min break requirement.”

EWDs do count time in minutes so ensure yours works per Section 246A of the HVNL:

246A Counting periods of less than 15 minutes—electronic work diaries

(4) A period of rest time of less than 15 minutes does not count towards a minimum rest time.

Examples for the purposes of subsection (4)—

1 A period of not working for 10 minutes does not count towards a minimum rest time because 10 minutes is less than 15 minutes.

2 A period of not working on 3 separate occasions for 14 minutes, 24 minutes and 22 minutes does not count as 60 minutes rest time because the period of 14 minutes, being less than 15 minutes, is disregarded.

Digital Compliance vs Electronic Work Diary

Technology providers can do more than the base requirements of the EWD Standards and provide more alerts and information to the drivers, the providers can also put in place hardware and software that validates the declarations that drivers make (I call this digital compliance) and still have their devices approved as EWDs.

An example of a digital compliance provider is Drivalink a company well known in the Construction Sector of the Transport Industry who appear to have built their system with HVNL compliance front of mind, for example, it has digital validation of driver inputs, through onboard switches and sensors as well as cloud computing, the system also has multiple alerting and reporting options including:

• HVNL compliance for drivers not using EWDs

• HVNL EWD compliance for drivers using EWDs

• NHVR EWD compliance for EWD approval and use by Authorised Officers.

The system also has user friendly historical data updating facilities (especially useful when engaging new drivers) and exception reporting related to record keeping obligations in the HVNL.

Summary

Caveat Emptor is Latin for “let the buyer beware” and means that the buyer is responsible for checking the quality and suitability of products before a purchase is made, hopefully this article will assist you in making sure that you are buying what you think you are buying and getting what you pay for.

Thanks for reading and please contact me via hvnlsupport.com.au or LinkedIn if you need support with your HVNL Compliance or Due diligence process.

HVNL Support

HVNL Support is dedicated to assisting Safety and Compliance Managers to develop and implement effective management systems, we strongly believe that managing heavy vehicle safety and compliance well saves lives, protects heavy vehicle drivers, and can improve your business.

If you would like to discuss how we can add value to your organisation please book a call via hvnlsupport.com.au