Working hours regulations and fatigue in transportation: A comparative analysis

Safety Science 43 (2005) 225–252 www.elsevier.com/locate/ssci

Working hours regulations and fatigue in transportation: A comparative analysis Christopher B. Jones a,*, Jillian Dorrian a, Shantha M.W. Rajaratnam b, Drew Dawson a

a

Centre for Sleep Research, Level 5, Basil Hetzel Research Institute, The Queen Elizabeth Hospital, University of South Australia, Woodville, SA 5011, Australia b School of Psychology, Psychiatry and Psychological Medicine, Monash University, Clayton 3800, Australia

Abstract Fatigue is recognised as one of the most important safety issues in transportation. The current paper identifies and compares the laws and regulations of four English speaking nations that limit working hours for safety purposes, and evaluates them against eight fatigue-related criteria. In addition, International and European Union law are considered where relevant. Two different styles of regulation were utilized by the countries surveyed: a prescriptive ‘‘Hours of Service’’ approach, and a non-prescriptive ‘‘outcomes’’ approach. The advantages and disadvantages of these two models are discussed. None of the rules were assessed as addressing all eight criteria. A proposal for a hybrid approach between the prescriptive and non-prescriptive systems is presented.
2005 Elsevier Ltd. All rights reserved. Keywords: Fatigue; Transport; Legislation

*

Corresponding author. Tel.: +61 8 8222 6624; fax: +61 8 8222 6623. E-mail address: [email protected] (C.B. Jones).

0925-7535/$ - see front matter
2005 Elsevier Ltd. All rights reserved. doi:10.1016/j.ssci.2005.06.001

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1. Introduction ‘‘It is obvious that a man cannot work efficiently or be a safe driver if he does not have an opportunity for approximately 8 hours sleep in 24. It is a matter of simple arithmetic that if a man works 16 hours per day, he does not have the opportunity to secure 8 hours sleep. Allowance must be made for eating, dressing, getting to and from work, and the enjoyment of the ordinary recreations.’’ Interstate Commerce Commission (1937) 1.1. What is fatigue? Fatigue is currently recognised as one of the most important safety issues in transportation by the Australian Commonwealth Government (House of Representatives Standing Committee on Transportation, Communication and the Art, 2000) and its modal transportation authorities (Civil Aviation Safety Authority [CASA], 1998; National Road Transport Commission, 2003; Parker et al., 1998). It has remained on the American National Transportation Safety BureauÕs (NTSB) ‘‘Most Wanted Transportation Safety Improvements’’ since the inception of the list in 1990. A consensus statement signed by major sleep researchers claims that fatigue surpasses alcohol and other drugs as the largest identifiable and preventable cause of accidents in all ˚ kerstedt, 2000). Indeed, the performance decrements assomodes of transportation (A ciated with fatigue have been quantified against those caused by alcohol (Dawson and Reid, 1997; Williamson and Feyer, 2000) and used as a method of validation of the effects of fatigue (Williamson et al., 2001). Defining the concept of fatigue has proved complex. It has been broadly described as ‘‘the subjective experience of symptoms during prolonged working’’ (Bartley and Chute, 1947), ‘‘overall unpleasantness’’ (Yoshitake, 1971), ‘‘generalised response to stress experienced over time’’ (Cameron, 1974), and a ‘‘subjectively experienced disinclination to continue performing the task at hand’’ (Brown, 1994) and in addition, several studies have shown a degree of association between subjective and objective manifestations of fatigue (e.g. Gillberg et al., 1994). Objective manifestations of fatigue have been summarised as: • increasingly frequent lapses in performance, • general cognitive slowing, including a lowering of optimum performance capabilities, • memory problems, • time on task decrements, and • an increasing inability to maintain the vigilance required to perform the tasks required (Dinges and Kribbs, 1991). Fatigue is also associated with an increase in sleep propensity (Durner and Dinges, 2005; Curcio et al., 2001). While there may be merit for specific definitions of different aspects of fatigue, it can be generally inferred from previous work that ÔfatigueÕ refers to a subjective desire to rest and an aversion to further work, coupled

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with an objective decrease in performance. Furthermore, this paper will restrict its definition of fatigue to encompass factors associated with sleep loss (as opposed to e.g. muscular fatigue). Based on previous work in this area (Jones et al., 2003) it will be argued in the present paper that a discrepancy exists between regulatory schemes that seek to address fatigue in transportation and the current scientific understanding. This paper will explore this proposition by assessing the laws of four English speaking nations (Australia, Canada, the United Kingdom and the United States of America) against eight criteria identified by research as impacting on fatigue. These nations were chosen due to the need for their laws to cover a very wide range of transport circumstances, and, in the case of the UK, due to its continuing influence in Australian and Canadian law, as well as its membership of the EU. Additionally these nations were selected as they all come from the Common Law tradition, which limits the potential confounding issues of differences between the approaches of the families of law. The overall structure of these laws will be discussed, and a model will be presented that integrates the research criteria. There are undoubtedly other criteria in addition to the ones identified by this review, for example commercial, infrastructure and educational objectives that have not been considered, but that also warrant consideration when implementing working time systems. This analysis does not address the related, but important, question of the nature of the work to be done by different workers. Furthermore, we did not seek to address the questions of enforceability and compliance. 1.2. Law and regulations that limit working time Historically, there have been two directions from which pressure has arisen for the limitation of work hours. They are (1) concerns for worker safety, and (2) concerns for equity between labour and capital. While concerns for safety have been cited as the most direct influence by those who have created the current laws,1 the balance struck between labour and capital, particularly in the first half of the 20th century can also be seen to have an important influence. In particular, the drive to limit working hours to a certain number per day or week (see for example the British Factory Act of 1844, limiting the maximum working day for adults to 12 hours) and provide for minimum holiday periods per year (see Holidays With Pay Convention, 1970; European Community Working Time Directive, 93/104/EC) to create a balance between work and rest have been important in those countries in which social justice has been a driving element of public policy. Although these laws and conventions regulate working hours and by proxy fatigue, the focus of this paper is on the second group of laws that directly limit working hours for safety. Furthermore, this paper will limit its consideration to the commercial transportation industry.

1 See for example, United Kingdom of Great Britain and Northern Ireland v Council of the European Union, Case C-84/94, European Court Reports 1996 Page I-05755.

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The first law directly limiting working hours for safety reasons in transportation was the Hours of Service Act, 1907 which addressed the duty time of railway engineers in the United States of America (USA). The approach can be classified as a prescriptive ‘‘Hours of Service’’ (HOS) model that is based on the government prescribing maximum working hours or minimum rest limits. Prescriptive legislation or regulation governs all transport modalities in the USA and the majority worldwide. Most regulations were established between the early 1930s and the early 1950s and have not been significantly altered since that time. However, in addition to the fact that the regulations are not scientifically justified, recently they have been criticised as ineffective. These concerns have sparked reviews of the regulations in several countries including Australia, Canada, the United Kingdom (UK) and the USA. This has resulted in a large number of new regulations being passed in the last five years, which is quite remarkable, given the lack of change during the previous 50 years. These reviews have sought out scientific input, but as this paper will demonstrate, the resulting regulations remain deficient in numerous scientific areas. More recently, several jurisdictions have introduced a different, non-prescriptive performance based approach. In 1972, Lord Robens handed down his report of inquiry into safety at workplaces in the UK. In it, he proposed a radically different approach to the management of safety that forms the theoretical underpinning of the non-prescriptive approaches. He proposed a system based on individual workplaces managing the risks at a local level supported by a legislative duty to do all that was reasonable to manage risk, rather than governments prescribing industry wide standards. In the fatigue management context, this approach involves leaving the detail

Fig. 1. The first, most significant and most recently revised regulations.

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of fatigue management up to the company or workplace, but requiring that a certain outcome or standard be achieved. The performance based approach is most commonly applied using the framework established by Occupational Health and Safety (OHS) laws, but the theory can equally be applied in a freestanding form. The first holistic, jurisdiction wide application of these principles to manage fatigue in a transport industry was the accreditation of the Western Australian Code of Practice for Commercial Vehicle Drivers, 1998 (The Northern Territory (NT), Australia, accredited a similar code the same year). See Fig. 1 for a timeline of significant events in the history of the development of fatigue-related transport laws.

2. Methodology: comparing regulations and research This paper compares the laws of Australia, Canada, the UK and the USA, treaties/conventions at the international level and directives of the EU that impose requirements to limit working time in the four transportation modalities (Road, Rail, Aviation and Marine). They are assessed against fatigue-related factors drawn from the Dawson et al. (2001) and NTSB (1999) report. It is important that each regulation be studied carefully and in detail, as some of the criteria can be composed of emergent properties of the laws. For example the circadian adaptation criterion can only be deduced by looking at how the particular work environment operates with respect to the diurnal nature of human beings. Table 1 lists the laws, regulations and conventions that will be analysed and Table 2 lists the criteria by which they are assessed.

3. Results: comparison outcomes An analysis of the extent to which each instrument addresses the various elements of fatigue discussed in the preceding section is summarised in Table 3. 3.1. The United Nations (UN) specialist bodies The UN has specialist bodies for aviation, marine transport and labour standards: the International Civil Aviation Organisation (ICAO), the International Maritime Organisation (IMO) and the International Labour Organisation (ILO) respectively. ICAO administers the Convention on International Civil Aviation (Chicago, 1944). Annex VI of the Convention requires that member States shall regulate working hours of aviators. However no particular measures are specified. Therefore, specific rules are created by each individual country and will be discussed separately. In maritime transport, the IMO has recently implemented (February, 2002) the Standards of Training, Certification and Watchkeeping for Seafarers, 1995 (SCTW 95). SCTW 95 is summarised and assessed in Table 4. Additionally, the IMO has promulgated the International Safety Management (ISM) Code, incorporated as Chapter IX of the Safety of Life at Sea (SOLAS)

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Table 1 Sources of law regulating working hours to manage fatigue Road

Marine

Australia

Canada

UK

USA

Aviation Chicago Convention, 1944, Annex VI

I.M.O I.L.O E.U.

Country

Rail

I.C.A.O SCTW 1995; SOLAS (ISM Code) Conventions 147, 180 Working Hours Directive 93/104/EC; Horizontal Amending Directive 2000/34/EC and sector specific agreements Road Traffic (Driving Hours) Regulations (State) Commercial Vehicle Hours of Service Regulations, 1994 Transport Act, 1968, Part VI

49 C.F.R. 395

Rail Safety Act (State)

Marine Orders

Civil Aviation Orders

Rail Safety Act, 1985

Crewing Regulations

Canadian Aviation Regulations

Safety Case (SI 2000/2688)

Statutory Instruments 2002/2125; 2000/484; 1997/1320; 1998/1561

49 U.S.C. 211

46 U.S.C. 8104

Air Navigation Order, 2000 & 2001 (SI 2000/1562; 2001/2128) 121 & 135 C.F.R

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Supra National Body

Table 2 Criteria for evaluating fatigue management regulations Criteria

Importance

References

Work at night poses more risk of fatigue-related incidents Operating at variance with the bodyÕs 24 hours (circadian) rhythm causes poor performance. The body can adjust by ±2 hours/day

Duration of opportunity for sleep

Do the regulations prescribe a minimum off duty duration greater than eight hours?

Sleep is the only antidote to fatigue

D

Sleep quality

Uninterrupted sleep is the most effective

E

Predictability

F

Sleep debt

G

Time on task

H

Short breaks

If sleep is not to occur at the workerÕs house, do the regulations provide for quality of sleep issues? Is there a requirement that start time will be notified sufficiently in advance in order for the employee to plan their sleep? Do the regulations provide for an extended sleep period that is greater than 34 hours?a Is the primary task limited to a maximum of 12 hours? Is there provision for short breaks?

Dijk et al. (1992), Lenne et al. (1998) Campbell (1995), Czeisler et al. (1990), Dawson and Campbell (1991), Dawson et al. (1995), Ha¨rma et al. (1994) Carskadon and Roth (1991), Van Dongen et al. (2003a) Mohler and Mohler (1992)

Time of day

B

Circadian rhythms

C

Predictability allows utilisation of optimum (circadian) sleep times

Murray and Dodds (2003), Torsvall and ˚ kerstedt (1988) A

Lack of sleep accumulates over time. Extended sleep is needed to compensate Risk exponentially increases after 12 hours

Dinges et al. (1997), Van Dongen et al. (2003b) Hanecke et al. (1998)

Short breaks significantly improve performance for short periods

Tucker et al. (2003); Horne and Reyner (1996)

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Question to be satisfied Do the regulations address work at night? Are circadian rhythms addressed?

A

a

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34 hours will allow for two 10 hour rest periods encompassing the hours 12 p.m.–6 a.m., one on the first 24 hours off, one immediately following. See the discussion in 68(81) Federal Register 22477.

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Table 3 Comparison of prescriptive laws and regulations on eight fatigue-related criteria (A) Time of day

(B) Circadian adaptation

(C) Sleep duration

(D) Sleep quality

(E) Predictability

(F) Sleep debt recovery

(G) Time on task

(H) Short breaks

SCTW 95 (IMO) C 180 (ILO) C 147 (ILO)b WTD/HAD (EU)

NS NA – S

NA NA – NA

S S – S

NA NA S NA

NS NA – S

NA NS – NS

NA NA – S

Road Traffic (Driving Hours) Regulations (SA) 1999 Rail Safety Act, 2002 (NSW) Schedule 2 (Freight) CAO 48.x (Australia) Commercial Vehicle Drivers Hours of Service, 1994 (Canada) Work/Rest Rules Rail (Canada) (TC O 0-33) Canadian Aviation Regulations (700.xx & 624.xx) Canadian Crewing Regulations, 2001 Transport Act, 1968 (UK) Air Navigation Order, 2000 (UK) and CAP 371 49 CFR 395 (USA Road)

NA

NA

S

NA

NA

NA NS – NS (S for aviation) NS

S

S

NA

NA

NA

NA

NA

S

S

S NA

NA NA

S (home depot only) S NS

NA NA

S NS

S NS

NA NA

NAa

NAa

NS

NA S (berths only) NAa

NAa

NAa

NS

NAa

NA

NA

NS

S

NA

S

NS

NS

NA NA S

NA NA S

NS S S

NA NA S

NA NA S

NA NS S

NA S NA

NA

NA

S

NA

S

NA NA

NA NA

NS S

S (berths only) S NA

NA NA

NA NS

NA S NS (see Table 8) NS (Work) S (Drive) NA S

NA NA

NA

NA

NA

NA

NA

NA

NS

NA

49 USC 211 (USA Rail) 14 CFR 121.xxx (&135.xxx) (USA Aviation) 46 USC 8104 (USA Marine)

NA—not addressed. S—sufficient (addresses this criteria to the standards identified in Table 2). NS—not sufficient. a Fatigue Management Programme (FMP) to address. b C 147 specifically only addresses sleep quality.

NA

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Convention, legislation or subordinate instrument

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Table 4 International conventions: SCTW 95 and the ILO Regulation

Article or Regulation

Comment

Criteria addressed (Table 3)

Sufficient/not sufficient/not addressed

SCTW 95

A-VIII/1: min. rest

10 hours min. (must include 1 · 6 hours block) No requirement for rest to take place at same time each day

Sleep duration

Sufficient

Time of day

Not sufficient

70 hours min. rest/7 days

Sleep duration

Sufficient

No requirement for timing roster release

Predictability

Not sufficient

Work: 14 hours/day & 72 hours/week Rest: 10 hours/day & 77 hours/week (no more than 14 hours between rest periods) Assumed to be 7 days, 8 hours/day, with one day off

Time on task or sleep duration

Work: not sufficient Rest: sufficient

Sleep debt recovery

Not sufficient

Must be addressed, but does not specify standard

Sleep quality

Sufficient

A-VIII/1: 24 hour period used as reference point in convention A-VIII/4: longer periods min. rest A-VIII/5: roster to be located in accessible place ILO Convention 180

Article 5: max. work or min. rest

Preamble to Article 5: ‘‘Working week’’ ILO Convention 176

Quality of sleep

Convention 1974, which requires all passenger ships, cargo ships and mobile drilling units over 500 Gross Tonnes (GRT) to have a written, auditable safety management system on board. The ISM Code states that the safety management system should include the provision of safe practices for ship operations and work environment, the establishment of safeguards against identified risks, and the continual improvement of safety standards (ISM Code 1.2.2.1–3). As fatigue is a recognised safety concern, its management should fall within the scope of the Code. However, as there are no suggested guidelines contained within the Code, there cannot be any assessment against the criteria identified in Table 2. Since 1936, the ILO has promulgated a number of conventions on maritime working conditions, but they have received limited support.2 Nonetheless, there are two of significance: (1) SeafarersÕ Hours of Work and the Manning of Ships Convention, 1996 2 See ILO Conventions 57 (four ratifications), 76 (one ratification), 93 (six ratifications), 109 (16 ratifications) and 180 (10 ratifications).

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(Convention 180); and (2) Merchant Shipping (Minimum Standards) Convention, 1976 (Convention 147). The most recent of these, Convention 180 (in force in August, 2002), has been ratified by 10 countries. The ILO Conventions are assessed in Table 4. 3.2. The European Union The EU is currently finalising the implementation of the 1993 Working Time Directive (WTD) that had excluded transportation operations from its coverage. The WTD and the sectorial directives are assessed in Table 5. It can be seen that this framework (WTD + HAD) provides a comprehensive set of general working time regulations, although the limitation of its implementation in the transportation industries diminishes its fatigue-regulating effectiveness. This is particularly the case for the aviation industry agreement. 3.3. National comparisons: Australia As a Federation, Australia divides the responsibility for the different modalities between the Commonwealth and the States.3 The Commonwealth has responsibility for Aviation and Maritime transport, while the States have responsibility for Road and Rail. Traditionally, each of the States has regulated their own jurisdiction without consideration for national consistency. More recently, they have agreed to pursue a common Road Transport framework. The National Road Transport Commission was founded in 1991 to coordinate this process. It has been successful in introducing the Road Transport (Driving Hours) Regulations, that provide for a common prescriptive structure in the eastern states and South Australia (SA). Western Australia (WA) and the NT have chosen to remain outside this framework, and have adopted a performance based approach. 3.3.1. Road transport—Eastern states of Australia and South Australia During 1998 and 1999, Queensland, New South Wales (NSW), Victoria, Tasmania and South Australia adopted the Road Traffic (Driving Hours) Regulations. These rules are prescriptive and limit drivers to a maximum of 5 hours driving in 5 1/2 hours, 12 hours in 24 and 72 hours in 168 (a week). Minimum rest periods are also set. The regulatory scheme is displayed in Table 6. These regulations may not consistently require a 24 hour schedule to address Criteria B of Table 3. For example, if a particular shift takes only 10 hours (rather than 14), the driver can be required to report for service 4 hours earlier on the following day, violating the 24 ± 2 hours principle (Criteria B) of Table 2.

3 For the purposes of this discussion, the term ‘‘State’’ also includes the Australian Capital Territory and the Northern Territory.

Table 5 The European Union Article or Regulation

Comment

Criteria addressed (Table 3)

Sufficient/not sufficient/ not addressed

EU WTD (93/104/EC) + (2000/34/EC) as consolidated

Article 6: Working time limit Article 3: Daily rest Article 5: Recuperative rest Articles 8–11: Night work Article 4: Short breaks

Avg. 48 hours/week Min. 11 hours/24 hours 1 · 24 hours/week Average 8 hours/24 hours Short break after 6 hours work

Time on task Sleep duration Sleep debt recovery Time of day Short breaks

Not sufficient Sufficient Not sufficient Sufficient Sufficient

HAD (2000/79/EC) Aviation

Clause 18: Yearly flying limit Clause 19: Extended breaks

900 hours flying/1 year 7 days off/month 96 days off/year

Time on task Sleep debt recovery

Not sufficient Sufficient

HAD (1999/95/EC) + (1999/63/EC) Marine

Reproduces requirements of ILO 180, STCW 95

See Table 4

See Table 4

See Table 3

HAD (2002/15/EC) Road

Article 4: Maximum working hours Article 5: Short Breaks

Avg. 48 hours/week

Time on task

Not sufficient

30 minutes break/6 hours driving or 2 · 15 Max. 8 hours/24 hours driving time Min. 11 hours/24 hours 1 · 24 hours/week

Short breaks

Sufficient

Time of day

Sufficient

Sleep duration Sleep debt recovery

Sufficient Not sufficient

Article 7: Night work Article 5: Rest Article 5: Extended rest

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Regulation

235

236

Table 6 Australian Road and Aviation Regulations Article/Regulation

Comment

Criteria addressed (Table 3)

Sufficient/ not sufficient/ not addressed

Road Traffic (Driving Hours) Regulations, 1999 (SA)

r. 21. Short breaks rr.. 19–20. Daily max. work r. 19–20. Extended max. work r. 21. Daily rest min. r. 21. Weekly rest min. R. 21. Extended rest min.

1 · 30 minutes or 2 · 15 minutes 12 hours drive and 14 work 72 hours/week 10 hours/24 hours, including 1 · 6 hours 96 hours/week, including 1 · 24 384 hours/month, including 4 · 24 hours, or 1 · 72 hours + 1 · 24 hours

Short breaks Time on task Time on task Sleep duration Sleep debt recovery Sleep debt recovery

Sufficient Not sufficient Not sufficient Sufficient Not sufficient Not sufficient

CAO 48.1 (Aviation)

Paragraph 1.2 Min. rest

9 hours/24 hours, including between 10 p.m. and 6 a.m. 10 hours/24 hours if work required between those hours 11 hours 8 hours 2 consecutive nights including the hours between 10 p.m. and 6 a.m. 30 hours/week; 100 hours/month; 900 hours/year

Sleep duration

Sufficient

Time of day

Sufficient

Time on task Time on task Sleep debt recovery

Sufficient Sufficient Sufficient

Time on task

Not sufficient

Paragraphs 1.3 & 1.4 Max. duty time Paragraphs 1.3 & 1.4 Max. flying time Paragraph 1.12 Extended rest Extended flying time limits

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Regulation

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3.3.2. Road transport—the Northern Territory and Western Australia approach The NT and WA have adopted a different approach. Instead of regulating hours in a prescriptive manner, they have utilized their Occupational Health and Safety laws to create a performance based system.4 The NT and WA have also produced voluntary Codes of Practice that provide guidance to companies about managing fatigue. These Codes have been formally adopted under the principal Act, and therefore have legal status in relation to evidentiary presumptions. As each company may devise their own program, it is not possible to compare the legislative regime against the scientific criteria, as a company may create a program that satisfies all or none of the criteria and still be legal. However, the Occupational Health and Safety Regulations (WA), 1996, (Part 10, r 3.13) establishes some Ôouter boundaryÕ conditions that may reasonable be assumed to be a starting point for a number of companies when developing their fatigue management system. 3.3.3. Rail Regulation of the railroads is also a State responsibility in Australia. The current regulatory environment for Australian railways is simple—there are no formal requirements to manage fatigue, provide minimum rest periods, or limit working hours. However, there is a general certification requirement to create and operate a safety management plan. While this requirement could arguably extend to the management of fatigue, this is not specified and no caselaw exists to explicitly clarify the question. The exception is New South Wales, which has recently amended legislation to require fatigue management programs for rail operators (Rail Safety Act, 2002 (NSW), s43 and Schedule 2), and also sets down some prescriptive conditions within which the fatigue management program must operate. 3.3.4. Aviation and maritime Aviation and Marine regulation are the responsibility of the Commonwealth Government, which has delegated its authority to statutory bodies, CASA and the AMSA respectively. Civil Aviation Order 48 (CAO 48.x) contains the regulations limiting the flight times of pilots, flight engineers, navigators and radio operators respectively as is required by the Chicago Convention, Annex VI. Cabin crew flight times are not required to be limited. All CAO 48 regulations follow a similar framework, with slightly different parameters. CASA has acknowledged that flexibility is necessary in any regulatory scheme, especially given the wide range of aviation activities undertaken in Australia. Therefore, CASA has implemented a standard exemption process to CAO 48. CASA states that it will not grant an exemption unless it is satisfied that the operator will not roster flight crew that are considered to be a fatigue risk however it is unclear how this assessment takes place. It is currently estimated that more operators work under exemptions to CAO 48 than to the order itself (CASA, 1998).

4 In Queensland, there is a pilot non-prescriptive scheme being trialled which has the same philosophy as the WA/NT approach, except it is operated under transport legislation rather than in the OHS framework.

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Marine transport is administered by AMSA, that enforces SCTW 95 under its authority under the Navigation Act, 1912 (Cth) but has no other specific instruments that place limitations on working hours. Additionally, AMSA enforces the ISM Code as Marine Order 58. 3.4. National comparisons: Canada The Canadian federal government is involved in the regulation of all of the transportation modalities, although when the transportation task falls entirely within one province, regulation falls to the provincial authorities. 3.4.1. Road transport The Commercial Vehicle Drivers Hours of Service Regulations, 1994 provide for an HOS approach and is addressed in Table 7. 3.4.2. Rail The major Canadian rail networks fall under Federal jurisdiction, governed by the Rail Safety Act (R.S. 1985, c. 32 (4th Supp.)), which establishes no general regulations limiting hours of service. However, there are specific rules in place to regulate particular circumstances. Rule Respecting Mandatory Off Duty Time for Railway Operating Employees Working in Covered Service (July, 1993) extends some basic mandatory off duty times for employees of federally regulated railways, and the Work/Rest Rules for Rail Operating Employees with accompanying Circular 14 (Approval Number TC O 0-33) imposes more detailed rules on a larger number of companies. As a large proportion of the rail industry is covered by the Work/Rest Rules, they will be discussed in detail. The accompanying Circular No. 14 provides advice to companies and employees about the implementation of the rules. Given the non-specific nature of the requirement, the adequacy of these regulations is entirely dependent on the implementation approach within each company, and as such, is beyond the scope of this manuscript. 3.4.3. Aviation The Aviation Industry in Canada is regulated by the Aeronautics Act (R.S. 1985, c. A-2) and Canadian Aviation Regulations (CARs). The CARs contain two parts that regulate flight time limitations. These Parts regulate Commercial Air Services (CAR Part VII, Division II, 700.14–700.23) and Private Operator Passenger Transportation services (CAR Part VI, Division IV, 604.26–604.33). Additionally, Standards provide more information about extending flight periods otherwise prescribed. 3.4.4. Marine The federal government has responsibility for shipping and has promulgated Crewing Regulations under the Canada Shipping Act, 2001. These regulations provide for a minimum rest period of at least 6 hours every 24 and 16 every 48. Canada is also a signatory to SCTW 95 (discussed above). Therefore, the regulations only addresses the duration of sleep criteria of Tables 2 and 3. This minimum rest period

Table 7 Canadian Road, Rail and Aviation Regulations Article or Regulation

Comment

Criteria addressed (Table 3)

Sufficient/ not sufficient/ not addressed

Commercial Vehicles HOS Regulations, 1994

Section 4: Rest

No driving to commence unless 8 hours rest provided Max. driving 13 hours Max. work 15 hours Max. 60 hours on duty/week 70 hours on duty/8 days 120 hours on duty/14 days Max. 75 hours on duty then min. 1 · 24 hours off duty No driving if faculties impaired

Sleep duration

Not sufficient

Time on task

Not sufficient

Time on task

Not sufficient

Sleep debt recovery

Not sufficient

–

–

Time on task

Not sufficient

Sleep duration

Not sufficient

Sleep duration All except sleep duration and time on task

Not sufficient Organisation dependent

Section 7(1): Max. working time Section 7(2): Extended max working time Section 7(5): Extended rest Section 7(6): Fatigue management

Work/Rest Rules (Rail)

Max. working time

Min. off duty Min. rest time Employee scheduling Education/training Alertness strategies Rest environment Work environment Unusual Circumstances Unique deadheading (employee transport)

12 hours/tour; 16/work train service Maximum 18 hours/24 hours for multiple tours >10 hours tour home: 8 hours off duty away: 6 hours off duty Min. 6 hours All to be addressed by the organisationÕs fatigue management plan

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Regulation

(continued on next page) 239

240

Article or Regulation

Comment

Criteria addressed (Table 3)

Sufficient/ not sufficient/ not addressed

Canadian Aviation Regulations (1996) 700.14 & 604.26

Maximum flight time

1200 hours/12 months 300 hours/3 months 120 hours/30 days 8 hours/24 hours (single pilot) Max. 14 hours/24 hours Before duty (604.27), After duty (700.16) 36 hours off duty/7 days; 3 · 24 consec/17 days Required for onboard rest

Time on task (single pilot)

Not sufficient (sufficient for single pilot)

Time on task Sleep duration

Not sufficient Not sufficient

Sleep debt recovery

Sufficient

Sleep quality

Sufficient

Short breaks

Not sufficient

Flight duty time Rest Extended rest Adequate sleeping conditions Short breaks

Compensation for extended duty time

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Table 7 (continued) Regulation

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would be at the lower end of what might be considered sufficient to allow for enough sleep to prevent fatigue (for all crew except watchkeepers). 3.5. National comparisons: United Kingdom 3.5.1. Road Working hours in the road transport industry in the UK are regulated by the Transport Act, 1968, Part VI (s 96–103) which imposes a prescriptive 10 hour daily driving limit, an 11 hour minimum rest period, a half an hour short break after 5 and a half hours driving and at least 24 hours off duty each week. In addition, there is a weekly driving hours cap of 60 hours. If extended driving or split shifts occur, there are also provisions for compensatory rest. 3.5.2. Rail There are no instruments in the United Kingdom that directly address the limits of working hours in the railway industry, except in the case of emergencies.5 Rather, the Health and Safety at Work Act, 1974 (UK), the primary OHS legislation, applies. To become and remain accredited, a railway operator must, by way of a safety case, indicate how they are managing all aspects of safety, including fatigue.6 The EU WTD will become operative in the rail industry when the HAD is fully implemented. As there are no guidelines issued by the relevant governmental bodies on the management of fatigue in rail, this regulatory scheme cannot be directly assessed against the criteria. 3.5.3. Aviation The current regulations that limit flight and duty time in the UK are very detailed and complicated (Table 8). They are also one of the few sets of regulations that specifically requires operators to addresses fatigue. The regulations are found in the Air Navigation Order (2000), Air Navigation (Overseas Territories) Order (2001)7 and publications of the Civil Aviation Authority (CAA). The Orders operate by imposing two measures. Firstly, they impose the duty on operators not to allow anybody to work if they are known (or are suspected) of being fatigued. There is a corollary to this requirement which applies to employees, as any person required to fly must not do so if they are aware, or suspect that they are suffering from fatigue. Secondly, the Orders require that each operator has an approved flying scheme for the regulation of flight time of each crew member. Regulation 74 places some overall prescriptive limits on flying time. A person must not act as a member of a flight crew if they have, at the beginning of the flight time, flown more than 100 hours in the previous 28, or 900 in the previous 12 months. Thus, the overall broad requirements in this Order make it resemble a non-prescriptive performance based systems.

5 6 7

S.I. 2000/1562. S.I. 2000/2688. S.I. 2001/2128.

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Table 8 UK Aviation Regulations Article or Regulation

Comment

Criteria addressed (Table 3)

Sufficient/ not sufficient/ not addressed

Air Navigation Order (2000)

r. 74: Fatigue management r. 74: Max. flight time

Reciprocal duty on employer and employee

–

–

100 hours/28 days; 900 hours/12 months

Time on task

Not sufficient

Flight crew must be given notice of duty time Suitable rest facilities must be provided

Predictability Sleep quality

Sufficient Sufficient

Determined by: • Number of crew • Number of sectors (flights) • Acclimitisation (uninterrupted sleep when changing time zones—see paras. 13 & 14) Range 9 hours–14 hours No more than 3 consecutive, or 4 days/7 days (between 0100 hours–0659 hours local time) Equal to length of previous shift, or 12 hours (whichever is longer) Min. 34 hours/week; 2 days/14 days; 7 days/4 weeks; avg. 8 days/4 weeks

Time on task, Circadian Adaptation

Sufficient where paras. 13 & 14 allow max. <12 hours Sufficient

Time of day

Sufficient

Sleep duration

Sufficient

Sleep debt recovery

Sufficient

CAP 371

Paragraph 7

Paragraph 3: Notice Paragraph 3: Rest facilities Paragraph 13: Max. duty time

Paragraph 17

Early starts/night flying limits Rest

Paragraph 20

Extended rest

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Regulation

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The CAA has issued a document, CAP 371, detailing the limits with which an approved scheme must comply. The currently available document was initially released for compliance with a previous Air Navigation Order (1989), but a revision has not been released for the current Order. However, given that the text of the 1989 and 2000 Orders are the same for fatigue management, CAP 371 will be regarded for the present purposes as the relevant provision. CAP 371 takes a prescriptive approach, although it purports to merely define the outer limits of any scheme that an operator might seek to have accredited by the CAA. 3.5.4. Marine The regulations governing the working hours onboard British shipping are made under the authority of the Merchant Shipping Act, 1995 (UK) and can be found in a number of statutory instruments (S.I.) that implement the various international treaties and conventions to which the UK is signatory. That is to say, there are instruments incorporating SCTW 95 (S.I. 2000/484; 1997/1320), ILO Convention 180/EU WTD Marine Agreement (S.I. 2002/2125) and the ISM Code (S.I. 1998/156). As these instruments have been considered in detail above, the discussion will not be repeated here. 3.6. National comparisons: United States of America As in Canada, the Federal authorities have significant input into all four modalities in practice in the USA, although State regulations may apply in certain circumstances. 3.6.1. Road The Federal Government has responsibility for commercial motor vehicles that operate in interstate commerce, which in practice comprises most of the significant operations. Congress has delegated the authority to create regulations to the Federal Motor Carrier Safety Authority (FMCSA). The FMCSA recently completed a review and issued new regulations (Federal Register 68 (81) 22456 et seq.)8 3.6.2. Rail The American Congress passed the first piece of legislation that limited the hours of work that a person could work in the transportation industry. Initially passed as the Hours of Service Act in 1907, the rules are now consolidated at 49 USC 211 and administered by the Federal Rail Administration (FRA). The current rules were last amended in 1988 and the most important provisions are contained in sec 21103 (a). Sub section (1) provides that a rail employees must not be required to work if they have not had 8 hours rest in the previous 24, and (2) that after being on duty for 12 hours, they must be allowed 10 hours for rest. In addition, section 21106 provides 8

The US Court of Appeal for the District of Colombia annulled these new regulations and directed the FMCSA to review them (Public Citizen et al. v FMCSA (2004) 374 F3d 1209). However they remain in place as is until October, 2005, when the FMCSA is expected to have completed its re-examination.

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that quarters provided for employees to rest, constructed after 1976, must be suitably quiet so that employees are able to obtain rest. 3.6.3. Aviation The regulation of working hours is administered by the Federal Aviation Administration (FAA), which divides the regulations by type of service, such that there are different rules for different operations, e.g. flag (international) carriers or commuter services (located at 14 CFR 121.xxx and 14 CFR 135.xxx, respectively). Furthermore, there are separate rules for pilots, air traffic dispatchers, non-pilot flight crew and engineers, leading to a number of different individual rules, each of which differs in their specific limits. However, common to all of the different schemes is the framework by which they are established. The scheme for flag carrier pilots (14 CFR 121.481) will be examined in detail as an example in Table 9. Although only one 24 hour block off duty is required, combined with the overall weekly, monthly and yearly limits, sleep debt recovery, although not sufficiently addressed in terms of the criterion F, it is nonetheless likely to be sufficient. 3.6.4. Marine The Federal Government delegated the authority to administer the legislation limiting working hours for shipping to the Coast Guard. In addition, the provisions of STCW 95 and ILO Convention 147 apply. Although different maxima and minima apply to vessels of different tonnage, the regulations are drafted in the same style. The requirements for an ocean going vessel of over 100 gross tonnes will be discussed as an example. When at sea, staffing must be divided into three watches and an individual cannot be required to work more than 8 hours a day. Special limitations for oil tanker sailors were passed in 1990, in response to the Exxon Valdez Oil Spill in Alaska, in which fatigue was found to be a major contributing factor (NTSB, 1990). These limitations provide extra maximum working time limits—15 hours in 24 and 36 hours in 72. This is a curious anomaly, as although seafarers are required to observe the 8 hour a day limit, this limit only applies to work that is ‘‘required’’ by the operator. The Coast Guard has declared that its interpretation of the legislation is that although there are statutory limits, these do not apply to work voluntarily done. Therefore the Coast Guard suggests a maximum of 12 hours per day, with the 15 hour limit as an absolute upper limit (US Coast Guard, Marine Safety Manual, Chapter 20). Clearly, these regulations only address the criteria of time on task, but in combination with the STCW requirements also address opportunity for rest and predictability.

4. Discussion The aim of this paper was to compare the regulations that regulate working hours in four modalities of the transportation industries in Australia, Canada, the UK and the USA, as well as the international and supra national conventions that are relevant and in existence. Future research may be able to extend this comparative ap-

Regulation

Article or Regulation

Comment

Criteria addressed (Table 3)

Sufficient/ not sufficient/ not addressed

49 CFR 395 (Road)

Subsection Subsection Subsection Subsection

11 14 10 60 70 34

Time on task Time on task Sleep duration Time on task

Sufficient Not sufficient Sufficient Not sufficient

Sleep debt recovery

Sufficient

Time on task

Sufficient

Sleep duration Time on task

Sufficient Not sufficient

Sleep debt recovery

Not sufficient

(a) Max. driving time (a) Max. work time (a) Min off duty time (b) Extended max work time

Subsection (c) Extended rest 14 CFR 121.481 (Aviation)

Subsection (a) Max flight time Subsection (b) Rest Subsection (a) Extended maximum work time Subsection (d) Extended rest

hours hours hours hours in 7 days; hours in 8 days hours consecutively/week

8 hours/24 hours; compensatory off duty for longer After 8 hours on task, 16 hours rest 32 hours/7 days 100 hours/calendar month 1000 hours/12 months Minimum 1 · 24 hours consecutively/week

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Table 9 USA Road and Aviation Regulations

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proach to consider jurisdictions that are founded on Roman law. We identified eight criteria that have been demonstrated by scientific research and have been acknowledged in industry reports (Fatigue Expert Group, 2001; NTSB, 1999) to be important considerations in the effective management of fatigue, and assessed each of the regulations against these criteria. There are two types of regulation that have been adopted by governments in addressing fatigue: (1) a prescriptive ‘‘Hours of Service’’ approach that typically sets a limit on the maximum hours that a person may work or the minimum hours that a person must be given off duty, and (2) a non-prescriptive performance based approach that requires that a company devise a system that effectively manages fatigue within their organisation. Prescriptive approaches are considered in more detail in the current analysis, as the methodology used for evaluating regulations cannot be applied to non-prescriptive regulations. We will present a discussion of the prescriptive approaches followed by a discussion of non-prescriptive approaches. 4.1. HOS schemes analysis When considering HOS regulations overall it is apparent that they have not been generated utilizing the scientific knowledge available, as they all fail to address all of the eight factors identified. Most striking is the failure to address time of day concerns, which has only been considered by the EU WTD and aviation in Australia and the UK. The main strengths of prescriptive systems are that they are (1) largely simple to comply with and (2) require little consideration from the operator. However, as more criteria are addressed the regulatory system becomes more complex and these benefits are lost. For example, the driving regulations in the UK are simple to comply with, but they only address three factors. Conversely, the UK aviation regulations address six factors, but are very complicated in terms of comprehension and compliance. They are also limited in coverage. Taking the example of rail in the USA, the rules described in this paper only address engineers, not yard workers, dispatchers or others. In a working environment where many people control the safety of a train, it is hard to see why some employees are afforded safety protection by the law, but not others. While there may be merit for some job roles to be excluded from HOS protection, it is not clear that a risk analysis was undertaken concluding that the risk to the employees was negligible. Such analyses, where risk is calculated by reference to the likelihood of occurrence and consequences of an event, would be valuable for all HOS schemes. Comparing how HOS schemes address criteria across modalities also provides important comparative information. For example, there are marked differences between the aviation regulations (that generally address more of the criteria) and the less restrictive railway regulations. A pilot in the United States can only fly a maximum of 100 hours per month, yet a train engineer can be required to work 432 hours. It is difficult to see how this can be justified, as a major incident in either modality can cause significant injury to individuals (risk to public safety is high) and damage to the environment. Although it is beyond the scope of this paper, it may be informative for further research to be undertaken into the nature and reasons

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of comparative differences, or in other words why different countries have adopted their form of regulation for the different modi. An alternative way of comparing the laws is to investigate how the same modality is regulated in the different countries. When this is done, it can be seen that there are vastly different approaches to rail, ranging from the Australian approach where there is almost no regulation, a very simple HOS system in the USA, a more complex system in Canada and the non-prescriptive system in the UK. Furthermore, this is an active area of reform, as reviews have recently occurred in three of the four nations assessed. Maritime rules are very consistent, as they tend to implement international agreements. Nonetheless, differences between the systems can be identified. All of the nations assessed have HOS style aviation laws that address more of the criteria than other modalities, but nevertheless are not perfect. Once again, the UK is assessed as having a better system than the other countries according to the criteria presented. Finally, road transport rules are largely HOS style (with the exception of two Australian states) and have been recently reviewed in three of the four jurisdictions (Australia, Canada and the USA). However, these reviews, while positive in that they show regulators are aware of fatigue, are unsatisfactory as the laws as amended are still not capable of addressing all of the criteria identified. 4.2. Non-prescriptive schemes analysis The basis of the non-prescriptive approach is to set general performance targets. For this reason, these schemes cannot be assessed against the criteria as the HOS schemes were. The non-prescriptive theory has been based on the Health and Safety at Work Act, 1974 (UK), which in turn was based on the Robens report (1970–1972). In its simplest form, it proposes that the focus of managing safety at work should lie with those doing the work—the workers and management at the workplace. Furthermore, the onus of proving compliance with the duty is on the operator to show that they have been operating safely rather than with the regulator to show that the operator had breached a rule. The two primary advantages to these schemes are that (1) they provide flexibility to incorporate all of the facets of a complicated system made more difficult by the extent of variability that human physiology and psychology exhibits, and (2) the focus of the rule is on safety (and hence fatigue) which is not present in most of the regulations where proof of compliance with specific hourly limits is sufficient. Furthermore, unlike HOS Systems, these regulations are usually drafted so that protection extends to almost all work arrangements, as is appropriate to the risk profile of the job. However there are criticisms of non-prescriptive approaches. Firstly, it is unclear whether they are indeed more effective than prescriptive solutions in reducing the toll of industrial accidents. Empirical data are required to evaluate this proposition. Secondly, a major drawback to such a system is that its strength (allowing companies to design their own program) is also its weakness (some companies may find it expensive to create a program, for little benefit). In addition, a legitimate complaint that can be raised is that there is considerable scope for abuse in a system that lets those who have most to gain from extending work hours decide what those work hours will be. For non-prescriptive systems to achieve

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their desired goals of increased safety with increased flexibility, and without becoming de facto deregulated systems, it would appear that a strong, committed and sufficiently resourced policing body is required, as well as equal input by labour and capital. 4.3. Comparison between prescriptive and non-prescriptive approaches Most of the regulations were originally formulated in the first half of the 20th century when the technological capabilities of the vehicles being used were considerably less than they are today, the infrastructure of transport was less developed, and competitive pressures were of a different nature to the global transportation industry in the early 21st century. However, although the technological and business environment in which companies operate have changed, human physiology has not. Even the earliest form of regulation still allowed a minimum of 10 hours per day for rest (House of Service Act, 1907), a figure that is supported by the modern scientific literature (e.g. Van Dongen et al., 2003a) as appropriate (assuming 10 hours off duty allows for seven or eight hours sleep). Prescriptive HOS style regulations can successfully address fatigue issues. The best examples of this are the detailed requirements for aviation in the UK. These rules successfully address all of the scientific criteria (except short breaks and, in some cases, time on task) and provide for an overall duty to manage fatigue. On the other hand, this regulatory scheme also illustrates the weaknesses of a HOS approach, namely that for a prescriptive scheme to address eight interacting factors produces a system that is complicated and inflexible. CAP 371 attempts to introduce flexibilities into its mandatory provisions, but these create even more complicated processes for compensating for any flexible extensions in the system. The result is that companies may not be able to rely on industry-specific expertise in planning their operations. On the other hand, the non-prescriptive approaches can in theory address all of the criteria, but unless information is provided about how to create programs, individual workers may be worse off than under HOS rules if the company implements a poorly designed program (Table 10). Creating any scheme to manage fatigue in transportation, while at the same time balancing operational and other needs is inevitably going to be a complex issue. The adoption of a prescriptive system attempts to embed that complexity into the rules themselves. On the other hand, non-prescriptive systems are relatively simple in regulatory structure and places the management of the complexity in the hands of the operator. The different modes of regulation require different modes of policing. For prescriptive systems, a relatively low level of skill is required to police compliance. In contrast, non-prescriptive systems require knowledgeable assessors to make effective judgements within the less Ôblack and whiteÕ system that each operator creates. 4.4. Recommendations and conclusions A system that combines elements of the prescriptive and non-prescriptive systems could be an effective model for regulation. A hybrid system, drawing on a suggestion

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Table 10 Advantages and disadvantages of prescriptive and non-prescriptive approaches to the management of fatigue

Prescriptive, HOS

Advantages

Disadvantages

Simple to interpret and apply Understood by industry and regulatory authorities May be adequate for many organisations

Can become complex Usually not based on science Does not address all factors Limited class of worker covered Inflexible Compliance Focus on hours, not fatigue Occupational Health & Safety and Industrial Relations intertwined

Non prescriptive, outcomes based

Flexible Dialogue generated between all parties Focus on fatigue Separates Occupational Health & Safety and Industrial Relations

Effectiveness not proven Expensive May not produce worthwhile gains Potential for abuse

Compliance

by Knipling (1998) (see also Dawson and McCulloch, in press) and similar in form to the trial scheme for road transport in Queensland will now be discussed. It consists of a two tiered structure in which there would be an overarching directive to all operators that fatigue must be managed and two alternatives methods to comply with that directive. One alternative would be a simple prescriptive scheme that, if the operator keeps within the limits, would not be likely to generate any fatigue. This alternative would not require the operator to do more than keep suitable records and provide basic information about fatigue management. This would be the default option, and it is expected that it would be suitable for a large proportion of organisations. The other alternative would be for all those organisations who could not operate within those limits, either for operational or economic reasons. This element would be generically called an Ôalternative compliance modeÕ and would be drafted so that a company could apply to the regulator to create its own fatigue risk management plan by way of a safety case. This hybrid model (prescriptive, with the option to apply for a waiver out to create a company-specific non-prescriptive scheme) would incorporate the simplicity of the prescriptive rules for those organisations that chose to utilize them, and incorporate the flexibility of the non-prescriptive schemes. Those adopting the non-prescriptive approach would be subject to greater scrutiny and higher levels of performance, but nonetheless all operators would still be bound to do all that is reasonable to manage fatigue. Such a system would theoretically be already possible in the USA rail industry, as exemptions are already permitted under the legislation.

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In conclusion, it is apparent that the management of fatigue in the transportation industries is a complex issue. This paper evaluates regulatory frameworks for fatigue management in terms of eight key determinants of fatigue. None of the prescriptive systems evaluated in this paper appear to address all of these criteria. It is apparent from this analysis that there is scope for the improvement of prescriptive systems, so that they are grounded in the scientific understanding of fatigue. However, care needs to be taken when drafting them so that they do not become unwieldy and unmanageable. The outcomes approaches described have considerable theoretical appeal, but are still in their infancy and they will no doubt need refinement to address the criticisms that can be levelled at them. In the end, it may be that a hybrid of the two approaches, harnessing the strengths of both systems will be the most effective model for the regulation of fatigue. ˚ kerstedt (2000) is correct and fatigue is now as seriIf the assertion contained in A ous as alcohol in causing preventable accidents, clearly there is a need to re-evaluate the regulation of fatigue in the light of such findings, particularly where the risk to public health and safety are significant.

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