Australia: Compliance assurance conditions in supply chain contracts

Last Updated: 5 December 2016
Article by Nathan Cecil
Most Read Contributor in Australia, September 2018

Section 620 of the Heavy Vehicle National Law (HVNL) sets out some examples of steps that you can (and should) take to satisfy your general Chain of Responsibility (CoR) compliance obligation to take all reasonable steps to avoid any breach of the HVNL.

Two of those recommended steps relate to exercising supervision and control over other parties in the chain.

In this article, we look at how you can, and should, work those supervision and control mechanisms into your contracts throughout the supply chain.

Contracting for the 'all reasonable steps' defence

Readers know that all CoR participants in the supply chain must take 'all reasonable steps' to avoid any CoR breach of the HVNL. However, because supply chain functions, operations and the conduct of the heavy vehicle road transport tasks are conducted in any number of ways, there is no fixed and final definition of what will constitute all reasonable steps within the HVNL.

Instead, the HVNL mandates that parties in the chain should conduct an assessment of the CoR compliance risks arising within their supply chain. Then they should implement suitable control measures to avoid or mitigate those risks.

This approach is said to give parties in the chain the flexibility to manage their compliance. In reality, it means parties in the chain are left scratching their heads and wondering what they are required to do and when they have done enough.

Thankfully, the HVNL does include some guidance as to the kinds of assessments and control measures parties could consider undertaking and implementing.

Suggested control measures

Two of the suggested control measures contained in s 620 of the HVNL are that you should take steps to:

  • exercise supervision or control over others involved in activities that could lead to a contravention; and
  • include compliance assurance conditions in relevant commercial arrangements with other responsible persons for heavy vehicles.

So, parties are required to exercise supervision and control over other parties involved in the supply chain whose actions could impact the conduct and/or safety of the road transport.

One of the ways in which you could do that is to include terms in your contracts with those parties that require them to comply with the HVNL. You could also provide notice of, and guidance in relation to, compliance with your CoR compliance policies and procedures.

Who is a 'responsible person for a heavy vehicle'?

Section 620 says that "compliance assurance conditions" should be included in contracts between any "responsible persons for a heavy vehicle". These include the:

  • owner, driver, operator of a heavy vehicle;
  • person in charge of a heavy vehicle, its garage address or the base of its driver;
  • person appointed to certify and monitor compliance under one of the heavy vehicle accreditation schemes;
  • person who provides an intelligent transport scheme in relation to a heavy vehicle;
  • person in charge of a place entered by an authorised officer;
  • consignor of goods for road transport;
  • packer of goods in a package, pallet or freight container for road transport;
  • person who loads goods or a container for road transport;
  • person who unloads goods or a container containing goods consigned for road transport;
  • person who receives goods packed outside Australia in a freight container or other container or on a pallet for road transport in Australia;
  • owner or operator of a weighbridge or weighing facility used to weigh the vehicle, or an occupier of the place where the weighbridge or weighing facility is located;
  • responsible entity for a freight container (a consignor, person who arranges road transport or offers the container for transport or the importer);
  • loading manager or person who controls or directly influences the loading of goods in a heavy vehicle for road transport;
  • scheduler of a heavy vehicle; and
  • employer, employee or subcontractor of any of the above.

A shorter way of saying the above is that you should include compliance assurance conditions in your contracts or terms and conditions with everyone. This will include all other parties in the chain with whom you deal, such as materials/products suppliers, manufacturers, importers/exporters, logistics providers, warehouse operators, operators of loading/unloading and distribution centres, road transport operators and consignors/consignees.

Businesses falling short

In our experience, most businesses are falling far short of this legislative requirement. At best, they are including compliance conditions only in their road transport contracts. This overlooks many CoR relationships, for example:

  • the way the manufacturer packs your goods into a container will impact compliance with mass and load restraint laws, for which you will be held liable; and
  • the truck arrival and loading time constraints imposed by the third-party logistics (3PL), your distribution centre provider, will impact on speeding and fatigue compliance, for which you will be held liable.

Remember that parties in the chain need to take a more expansive view of their obligations to include CoR compliance assurance conditions in their contracts or terms and conditions that govern their relationship with any of the above persons.

Third parties, once removed

What happens when those persons subcontract or involve third parties with whom you have no relationship? How do you extend your supervision, influence and control down another level?

The answer is that your compliance assurance conditions should include a provision that requires those persons to ensure that similar terms and conditions of compliance apply equally to any such third parties.

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.

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Nathan Cecil
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