ARE YOU PREPARED?
With October 1 fast approaching, the Heavy Vehicle National Regulator (NVHR) have reformed to align the Heavy Vehicle National Law (HVNL) with other national safety legislation.
Under the reforms, everyone in the Chain of Responsibility (CoR) for a heavy vehicle will have a non-transferable positive duty to ensure, so far as is reasonably practicable, the safety of their transport activities related to the vehicle. The laws will ensure the elimination or minimisation of safety risks, the risk of damage to road infrastructure and ensuring conduct does not directly or indirectly cause or encourage a driver or another party in the chain to contravene the HVNL.
The Chain of Responsibility provides everyone “in the chain” a primary duty to eliminate or minimise risk so far as reasonably practicable. As a party in the chain the recommended way to control this is to incorporate CoR requirements into safety management systems. Risks aligned with Heavy Vehicles involve:
- Vehicle condition;
- Fatigue management;
- Drug and alcohol;
- Mass management, and;
All parties that have control or influence over the transport task are responsible for complying with the Heavy Vehicle National Law (HVNL). A person may have multiple roles in the chain and liability can apply to their actions, inactions and demands on other parties in the chain. This may include, but is not limited to:
- Executive Officer: You are a person who is concerned or takes part in the management of the business.
- Consignor: You request an operator of the heavy transport vehicle (directly, indirectly or through their representative) to transport the goods by road.
- Consignee: You receive the goods after road transport (but not merely the unloader).
- Employer: You employ someone to drive a heavy vehicle (including casual, permanent, part time, contract driving and labour hire.
- Prime Contractor: You engage a driver/s to drive a heavy vehicle under a contract for services.
- Transport Operator: You control or direct the use of a heavy vehicle.
These parties in the chain can be held liable for breaches of the HVNL despite having no direct role in driving or operating a heavy vehicle. If your actions, inactions or demands cause or contribute to an offence, you can be held legally accountable.
1 CODE OF PRACTICE COMPLIANCE
A registered industry code of practice will be admissible in any proceedings as evidence as to whether or not a duty under the HVNL has been complied with. A court may also have regard to the code for evidence as to what is known about a hazard and what is ‘reasonably practicable’ in relation to a party’s activities. Code of Practice is available here: https://www.nhvr.gov.au/files/201611cop-rwta-code-of-practice.pdf
2 ASK YOURSELF
To demonstrate your diligence in this regard, follow the same logic applied to your obligations as officer’s under WHS legislation. Ask yourself these six questions:
- Do I know my obligations?
- Do I understand the risks?
- Have I provided adequate resources?
- Do I respond to incidents and hazards in a timely manner?
- Do I enforce these requirements when breaches occur?
- Can I provide evidence?
3 CHANGES ARE COMING
The extensive changes to the HVNL mean that all parties in the chain need to:
- Familiarise themselves with the new legislated primary duties;
- Educate management and workers on the new primary duties and the severe penalties for non-compliance;
- Consider the risks associated with their transport services? Are the current documented management systems and practices sufficient to manage those risks?
- Understand the definitions of ‘business practices’ and ‘Due Diligence’ as it relates to ‘operating policies and procedures’. Parties in the chain must sufficiently maintain a safety management system which includes details of contractual responsibilities with other parties in the chain.
- Exercise Due Diligence – this forms the basis for a defence of any claim made under the HVNL or Work Health & Safety (WHS) Acts.
For more information or to get started with the IBASafe System, contact our program partners Victual