On 1 October 2018, changes to the Chain of Responsibility (CoR) laws were introduced. The changes sought to put an emphasis on the accountability and responsibility for breaches of the Heavy Vehicle National Law and Regulations (HVNL). Under CoR laws, if you are named as a party in the CoR and exercise, or are capable of exercising control or influence over any transport task, you have the responsibility to ensure that HVNL is complied with.
As per the NHVR , parties in the chain of responsibility for heavy vehicles are:
- an employer of the driver
- a prime contractor of for a vehicle if the vehicles driver is self-employed
- an operator of the vehicle
- a scheduler for the vehicle
- a loading manager for any goods in the vehicle
- a loader and/or unloader of a vehicle
- a consignor of any goods for transport by the vehicle
- a consignee of any goods in the vehicle
- a loader and/or unloader of any goods in the vehicle
- Primary duty of care- s 26C
The legislative changes abolish deemed liability for parties in the CoR and replaces it with a duty to ensure, ‘so far as reasonably practical, the safety of the parties transport activities relating to the vehicle.’
The s26C amendments place an encompassing primary duty on each party within the CoR. As per s26C:
- Each party must, so far as reasonably practicable eliminate public risks, or where it is not reasonably practicable… minimise the public risks.
- Each party must not directly or indirectly cause or encourage the driver to contravene this Law, exceed the speed limit or encourage another person, including in this chain of responsibility, to contravene this Law.
A notable inclusion is the penalties imposed by a breach of the duty imposed by s 26C. Like the Model WHS laws the breaches are broken into three categories. For an individual the penalties range from $50,000 to $300,000 and 5 years imprisonment.
- Due diligence duty for executives- s 26D
The s 26D amendment imposes an obligation on executive officers to exercise due diligence to ensure that the legal entity complies with its primary duty in accordance to s 26C. s 26D(3) defines an executive of a legal entity as:
- for a corporation – an executive officer of the corporation; or
- for an unincorporated partnership – a partner in the partnership; or
- for an unincorporated body – a management member of the body.
The definition ultimately defines the ‘executive’ as any person who is concerned or takes part in any managerial role. S 26D(3) further lists a number of steps that are considered ‘reasonable’ for an executive officer to:
- acquire and keep up to date knowledge about the safe conduct of transport activities; and
- gain an understanding of the nature of the legal entity’s transport activities, hazards and risks; and
- ensure that the legal entity uses appropriate resources to eliminate or minimise hazards and risks.
- Statutory shared responsibility extends upon WHS laws- s 26A
A key difference between the duty provisions in the HVNL and those in the Model WHS laws is that the HVNL applies the duty not to workers and workplaces but to a party’s transport activities relating to a heavy vehicle .
Section 26A provides an extensive definition of transport activities. Generally, it is all activities that include business practices and decision making associated with the use of a heavy vehicle on a road. It encompasses everything from contractors, directors and employers of drivers to schedulers and recipients of goods unloaded from the vehicle. Parties in the supply chain who are not physically present can be held equally accountable under the CoR regime.
- Prohibited requests or contracts- s 26E
It is prohibited as per s 26E to instruct or direct a driver of a heavy vehicle or person in the CoR to do something that would cause the driver or person in the CoR to breach safety requirements. An example of such be incentivising of an unreasonable schedule. Contravening s 26E carries the penalty of $10,000.
Given the extent and impact of the amendments to the HVNL, it is extremely important to have a thorough understanding of how they affect you and your business. This will include updated training, and compliance systems and monitoring designed to ensure an ongoing understand of the business from the executive team through to drivers.
Disclaimer: This publication by Morrissey Law & Advisory is for general information and commentary only and should not be considered or relied upon as legal advice. Formal legal advice should be sought in relation to any matters or transactions that may arise in relation with communication.