Judge allows appeal on working time case dismissal


Total work time within 24-hour period seen as crucial to SA Police case

Judge allows appeal on working time case dismissal
South Australia Police can appeal a magistrates work time decision

 

A South Australian Supreme Court judge has allowed a police appeal against a magistrate’s dismissal of an owner-driver’s working time prosecution.

In giving the green light, justice Sam Doyle finds that, under the Heavy Vehicle National Law (HVNL), allowable work time in a 24-hour period should be counted as total work time rather than continuous hours worked, as the defence argued.

The defendant, a "solo driver" of a "fatigue-regulated heavy vehicle" for the purposes of the HVNL, was prosecuted for working 14 hours instead of the mandated 12 hours.

The initial Magistrates Court hearing heard that the driver arrived in Alice Springs at 6pm on November 27, 2014, thereby completing that driving job and ceasing "work".

He did not work at all on November 28 and made no entry in his work diary during that day. The driver began work again in Alice Springs at 12.30pm on November 29, with his work diary recording that between then and 12.30pm on the next day he worked a total of 14 hours, but interspersed with various periods of rest.

It also recorded that he rested from midnight on November 29 until 7.45am on November 30, when he resumed driving.

During the afternoon of November 30 the driver crossed back into South Australia and was stopped by the police at 4.15pm.

The prosecution argued that the work time began 12.30pm on November 29, as this was the end of a relevant major rest break for the purposes of section 247 of the HVNL, and so marked the start of a 24 hour period, while the defence case was that it should be counted from 7.45am the next day.

The judge, ruling just before Christmas, states that there is nothing "in the legislation that suggests that the counting of work time must stop and recommence each time the driver subsequently has a major rest break".

The appeal case will now go back to the magistrate concerned.

 

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