Many transport and logistics businesses actively use technology to drive business management and efficiency. There is a growing recognition that the same or similar technology can also be used by businesses to monitor, manage and demonstrate compliance with the Heavy Vehicle National Law (HVNL). In this article, we look at how technology fits within the compliance framework. In particular, we consider how it can be used to help demonstrate compliance by providing evidence of 'all reasonable steps'.
The compliance framework
Under the HVNL, businesses must take 'all reasonable steps' to ensure that Chain of Responsibility (CoR) breaches do not occur. The HVNL does not set out an exhaustive list of what will constitute 'all reasonable steps'. Instead, it includes a list of matters that a court may consider in deciding whether all reasonable steps have been taken. Some of these matters may be addressed by using technology.
It is important to note that the use of compliance technology or any particular product, system or platform is not mandatory, but there are good reasons for using it.
Who should be included in your compliance technology system?
Technology can be used by you to monitor, manage and demonstrate your own compliance with the HVNL. However, your personal compliance alone will not relieve you of any potential liability under the HVNL.
It is important to note that where one party in the chain commits a CoR breach, all other parties in the chain may be deemed to have committed the same breach and may be investigated, prosecuted and fined. That is, you are held responsible for the CoR compliance performance of the other parties in your shared supply chain.
In recognition of this, one of the matters that a court may consider in any prosecution of your business is the steps available and taken by you to "exercise supervision or control over others involved in activities leading to [any] contravention". So, from a compliance perspective, it makes sense to include the other participants in your supply chain in your technology compliance system. This may have the further benefits of reducing the administrative burden of managing the compliance of those parties and increasing the return on your technology investment.
Which elements of CoR are suited to compliance technology?
Technological solutions are particularly well-suited to CoR elements that are fixed or measureable and result in a 'yes/no' or 'green light/warning light' type of compliance assessment. These include:
- Mass management
Electronic mass measurement has the benefit of providing immediate, accurate, reliable and reproducible mass data for both gross and axle load weight compliance. A particular benefit of electronic mass management technology is that the figures provided will automatically include the tare and on-board equipment, fuel and driver weight, avoiding the need to calculate (or the temptation to guess) these figures.
- Speed management
Electronic real-time speed management technology is perhaps the most sure-fire method to manage speed compliance. Realtime driver warnings as well as head office incident reporting provide an immediate way to identify breaches and manage compliance.
In addition, advanced systems can be linked to job and journey booking systems so that depot or journey delays can be immediately integrated into journey planning, avoiding the encouragement of speeding to 'make up' any delays.
- Fatigue management
Fatigue management and work/rest time calculation seems to be one of the areas subject to the greatest uncertainty as to how to calculate compliance. It can also be prone to abuse and incorrect reporting to mask noncompliance. Electronic work diaries and automatic calculation of work hours and rest requirements largely solve both of these problems. As mentioned earlier, advanced systems can be linked to job and journey booking systems, which acts as a further cross-check on the recorded hours and prevents any 'creative accounting'.
- Contractor/subcontractor and supply chain participant management
The use of technology can help to reduce the huge compliance burden faced by businesses with a large number of subcontractors and/ or supply chain participants. For example, subcontractor pre-qualification screening can be completed and recorded electronically.
Further, electronic management can assist subcontractor performance, incident notification and response/resolution close out for multiple subcontractors.
Information, instruction and training
Technology can also be used to provide information, instruction and training to employees and other contractors/ subcontractors and supply chain participants you may have responsibility over.
For example, online training modules and questionnaires, online CoR compliance induction modules and the electronic dissemination of CoR compliance manuals (e.g. load restraint operating procedures) can efficiently deliver compliance components to large numbers of businesses and individuals.
Recording and demonstrating compliance
If CoR compliance is not documented, then for the purposes of CoR investigation or prosecution, it doesn't exist. Regulators, courts, prosecutors and defence lawyers all love records, whether hard-copy or electronic. Evidence of compliance is at its strongest in any investigation or prosecution when it can be produced from objective records made at the time.
Technology-based compliance systems have the benefit of centrally recording and storing all evidence of CoR performance and compliance in a form that is readily able to be extracted to respond to any investigation or prosecution. Also, it does not rely on the recollection or credibility of any witnesses who would otherwise have to try to give evidence of such measures.
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.