Proposed fatigue laws won’t maintain safety standards

The RTBU has welcomed the response by Transport for NSW to the draft National Laws regulating fatigue management in the rail industry.

“Transport for NSW has picked up the deficiencies in the draft that the union has long been campaigning against,” says NSW Loco Division Secretary Bob Hayden. “In particular, the fact that the National Laws will water down the strong protections for shift lengths and breaks that are currently enshrined in NSW law. We are pleased that they are taking rail safety seriously and demanding that the existing high standards are maintained.”

In a submission to the National Transport Council (NTC), Transport for NSW broadly supports the establishment of the new Rail Safety National Regulator, but says “the proposals for the management of fatigue contained within the National Law and Regulations are still insufficient to manage this critical area of safety”.

Transport for NSW’s submission says the draft Regulatory Impact Statement (RIS) “does not contain sufficient evidence to support the proposition that safety will not be compromised in NSW”. It points out that the RIS admits there may be a gradual drift to longer hours, shorter breaks, and that fatigue-related errors, incidents and accidents may increase under the new laws.

The RIS also acknowledges that commercial pressures and driver shortages may adversely impact on safety, noting that there are deficiencies in the industry’s abilities to manage risk.

Transport for NSW highlighted four key areas it says require further analysis and consideration by the NTC before finalisation of the laws.

The first concern is that the proposed model will require employers at assess risk themselves as the basis for their individual fatigue management plans. Transport for NSW is concerned that the Australian rail industry lacks the skills and capacity to adequately assess risk and put in place effective management systems.

Transport for NSW also believes that the RIS does not provide an accurate analysis of all available options for regulating fatigue. The RIS discusses the pros and cons of “prescriptive” and “performance-based” approaches to regulation, but doesn’t take into account the approach currently used in NSW, Queensland and internationally, which is a combination of prescription (outer limits) and performance-based regulation (safety management systems).

With the removal of regulations for outer limits of working time arrangements, the Regulator itself becomes the “safety net”. This means that huge extra resources will be required by the Regulator to assess, monitor and enforce fatigue management arrangements across the industry. Transport for NSW argues that the RIS has not fully addressed the financial impact and is underestimating the costs of compliance.

The final point is that the RIS does not examine properly how existing working time arrangements in different states will clash with the new laws – in particular where operators request an exemption in order to extended shift lengths. Transport for NSW notes that “the exemption capacity is an integral part of the NSW arrangements and it should not be overlooked by the RIS”.

With the unions and Transport for NSW both calling for more effective safety legislation, the RTBU hopes the NTC will take into account these important points before delivering the final regulatory impact statement to the Standing Council on Transport and Infrastructure (SCOTI, formerly ATC) in May 2012.

Download the Rail Tram and Bus Union Submission and the Transport for NSW Rail Safety National Law Submission here.

To download other comments submitted to the NTC go to:

http://ntc.gov.au/RFCCommentsView.aspx?DocumentId=2275