Ignorance may be bliss when it comes to Chain of Responsibility
(CoR), but only if 'bliss' means a short-term,
unsustainable ecstatic state. Moreover, ignorance is not just
harmful to you, but can affect others in the chain by exposing them
to problems you have created. This is a bit like a game of
'pass the parcel'. So how can you avoid being left holding
the parcel when it 'blows up'?
'C' stands for 'Chain'
The Heavy Vehicle National Law (HVNL) is different to many laws
in that it doesn't always impose absolute obligations. Instead,
it creates a somewhat subjective obligation to take 'all
reasonable steps' to achieve a particular objective. The steps
that are required to satisfy that obligation will differ from
person to person, even if those people are adjacent in the chain.
This can be intensely frustrating for people who like their law to
be black and white, which is not at all surprising in light of the
criminal penalties that can apply for breaches of CoR.
CoR is about systems
While it may not resolve frustrations entirely it is important
to remember that CoR is about systems. On the upside, CoR does not
require that your compliance system is perfect, it just needs to be
defensible in the event that, despite your best intentions,
something does go wrong. This applies not only to your systems and
the way you do business, but also to the way your customers and
suppliers do business. It is a chain, after all. So, how can you
control or influence the way others conduct themselves? The answer
Pre-qualify your suppliers and contractors
Before you do business with another company, find out what they
know about their CoR obligations. Do this by:
giving them a questionnaire;
getting a guarantee or commitment from them that they are
compliant and will stay compliant; and
auditing that commitment from time to time. Better still, get
them to conduct an independent audit and send you the results.
Remember: Include CoR compliance in any tenders
you issue for transport-related services.
Bear in mind that if your supplier is cutting corners or is
ignorant of CoR, they may be ignorant of other matters, too. You
can't afford to be doing business with suppliers who are
prepared to compromise the safety of themselves and others.
You should include appropriate terms in contracts. At a minimum,
these terms can require CoR compliance, but should go further than
that. Contract terms could give you a right to terminate the
contract if you believe there has been a breach of CoR compliance.
The terms could require your contractor to forfeit a right to
payment and/or pay liquidated damages in the event of
non-compliance. A non-compliant supplier is potentially exposing
you to criminal sanctions.
It's in your interest that your suppliers, contractors and
customers understand the CoR obligations and are appropriately
trained. Why not discuss training with them and even include them
in your CoR training events? In that way, you can develop a
collective responsibility for CoR. Training can also focus on
real-life examples and the development of proper practices,
procedures and policies relevant to your business, including how to
respond to a CoR incident.
Code of practice
Ultimately, you may wish to consider developing a code of
practice and including your suppliers, contractors and customers in
the development. The National Heavy Vehicle Regulator (NHVR) will
shortly be releasing new guidelines in relation to the development
of industry codes of practice that can offer real protection
against liability and prosecution.
The adage that 'any chain is only as strong as the weakest
link' certainly applies to CoR. Spend some time thinking about
who you interact with and whether there are any ways you can
improve your chain.
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
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This decision will be significant to aviation industry participants in assessing whether claimants in the context of international or domestic carriage by air have commenced claims in an appropriate forum in Australia.
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