One of the guiding principles under the Chain of Responsibility (CoR) is that you may be held responsible for Heavy Vehicle National Law (HVNL) breaches committed by other parties in the chain. The road supply chain is long and complex. Most businesses don't encompass the whole of the chain, meaning that most have to engage others to perform some functions. So, if you are potentially going to be held responsible for the conduct of your contractors, how do you manage them to ensure that they (and you) comply?
In this article we look at how your supervision and control of other CoR parties can help you to make the 'all reasonable steps' defence when managing contractors. Remember, compliance can't be contracted out. Both you and your contractors must be compliant, and one party's compliance or non-compliance will affect the other's.
Knowing yourself is the beginning of all wisdom
You won't be able to manage your contractors' compliance if you can't manage your own.
So, the first step in managing your contractors is to ensure that you have policies, work systems and training in place to ensure that your business is CoR compliant. A firm base of internal CoR compliance will provide the basis for your business and employees to monitor and assess the compliance of your contractors.
Once these measures have been rolled out internally, you will be ready to monitor your contractors' compliance.
Do unto others as you would have them do unto you
You do not need to reinvent the wheel for contractor compliance. The CoR compliance policy and work systems that you develop internally should apply equally to your contractors.
For example, if you implement a practice whereby the height of all variable height loads in your heavy vehicles is measured prior to departure from your gate, make sure you apply the same control to any contractor heavy vehicles that might also be engaged to transport your materials.
In a recent case, such an internal height check was not applied to third-party vehicles leaving the premises, on the basis that their drivers were primarily responsible for checking load height. This oversight resulted in $213,588 in HVNL fines and compensation orders being imposed when the over-dimension vehicle hit and dislodged infrastructure and became wedged in a tunnel.
This means that any third-party contractors entering your site need to be properly inducted into your CoR safety policies and work practices. This can easily be incorporated into your usual health and safety induction.
Similarly, if you have developed any mass, dimension or load restraint practices, such as detailed loading guides for standard goods, these must be given to contractors. Contractors must also be properly trained in how to apply them.
Any such induction or training must be more than just superficial. In the Nolan case, the loading procedures induction required contractor drivers to secure and visually inspect their loads to ensure they were safe. However, the induction process and work system did not contain any detail about the methods of inspection and securing that should be used, or the means available on site to assist. At the hearing, it was accepted that the company "provided little more than generic induction training to transport contractors".
It is common to see compliance requirements drafted in such broad terms (e.g. "All drivers must ensure that their loads are safe before departing'). It is (incorrectly) thought that such broad provisions are the best way to transfer responsibility for compliance onto the other party. However, if you know how such compliance can be best achieved, you should spell this out. There is no point in keeping known compliance measures to yourself.
The carrot or the stick? The stick!
The obligations under the HVNL to exercise control over the conduct of others means that each party in the chain is deputised to look over the shoulders of other parties. One such supervisory tool that is expressly endorsed in the HVNL is the use of compliance assurance conditions in your contracts with other parties in the chain, including your customers and contractors.
In this context, the Nolan case suggests that you will be criticised if your compliance assurance conditions are too soft. In that case, the compliance assurance conditions required compliance, but didn't have any teeth to enforce it. Specifically, the judge noted that the compliance assurance conditions did not contain a condition that the contractor would not be paid if they breached the HVNL.
Contractor, you're fired!
You can lead a horse to water, but you can't make it drink.
At the end of the day, you must take 'all reasonable steps' not just to educate and ensure HVNL compliance by your contractors, but to avoid any breach.
If, despite your best endeavours, your contractors continue to pose a compliance risk, you may need to enforce the ultimate compliance assurance condition and reconsider using them. This is because if your monitoring and assessment shows that a contractor has a systemic compliance problem, the requirement for you to take 'all reasonable steps' will likely include the step of not using them unless they can demonstrate that their compliance is up to scratch.
Of course, if you are in a service agreement with a contractor, you may be constrained in the circumstances in which you can suspend performance or terminate the contract. So, it is important to ensure that the compliance assurance conditions in your contractor agreements include:
- express key performance indicator requirements as to CoR compliance; and
- your right to suspend performance or terminate the contract in the event of non-compliance.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.