Australia: CoR compliance - what can we learn from the Remondis judgment?

Last Updated: 1 February 2018
Article by Geoff Farnsworth
Most Read Contributor in Australia, August 2018
Background

On 12 July 2017 NSW Local Court Magistrate McIntyre pronounced sentence in the NSW Road and Maritime Services prosecution against Remondis Australia Pty Ltd.

The judgment was based on an Agreed Statement of Facts which is not on the public record, but relevant background can be gleaned from the judgment itself.

Remondis is a global business engaged in, among other things, waste management.

As part of that business and pursuant to a contract with the local council, its trucks collected organic waste from recycling bins (or green bins) from homes on the central coast of NSW which were deposited at a council owned site at Awaba where Remondis processed and composted the organic waste into mulch. The mulch was then removed from the Awaba site by heavy vehicles contracted by Remondis and operated by at least two contractors, Jet Group Australia Pty Ltd (Jet), and Port Stephens Gardenland (PSG).|

It appears that the carriers and driver were responsible for loading the mulch onto the vehicles, which were only then weighed at a council weighbridge remote from the Awaba site.

As part of invoicing procedures, Jet would provide Remondis with a copy of the weighbridge docket. The carriers were paid per tonne of mulch carried.

In 2008 Remondis had developed a Driver and Operator Manual which it updated in 2014. While the manual referred to Chain of Responsibility (CoR), it related principally to the operation of Remondis' own fleet vehicles and did not make reference to contractors, vehicle mass or overloading.

RMS initially served Court Attendance Notices (CANs) on Remondis and a director, Mr Agati.

Those CANs alleged offences against Remondis in its capacity as both Loader and Consignor.

Remondis and the director entered pleas of not guilty to the charges and the matter was listed for a 14 day hearing.

Ultimately Remondis pleaded guilty to charges as a Consignor. The charges against the director and against Remondis as Loader were ultimately dropped, presumably in exchange for Remondis' agreement to the guilty pleas.

Lessons to be learned

There are many valuable lessons to be learned from this case.

Joining the dots

In the course of sentencing, the Magistrate referred several times to the fact that as part of invoicing procedure Jet was providing Remondis with copies of the weighbridge receipts which clearly evidenced systematic overloading.

It is entirely possible that no one in the Logistics or Operations function at Remondis generally or the Awaba site in particular saw these weighbridge receipts and that no one in the Accounts department (which may for all we know have been located in another country) understood the significance of the weights.

Logistics operations can traverse different departments (and locations) within a business, including Marketing; Operations and Accounts. It may be that CoR compliance issues only become apparent by reviewing records held by different departments across different locations.

Marketing could (and should) make sure that appropriate contract terms and policies are in place when engaging with customers and carriers.

Operations needs to ensure that CoR policies and procedures are complied with.

And Accounts needs to ensure that relevant information provided as part of a billing process is also collated.

In order to be properly CoR compliant businesses need to find a way of 'joining the dots' within the organisation. The fact that no one individual in an organisation is across all aspect of CoR compliance can pose significant risk.

By way of a further example, regulators will occasionally send warning notices if they have detected and are concerned about breaches. On at least one occasion we're aware of, notices sent to the company didn't find their way to the appropriate person within the organisation, which can have damning consequences.

But nothing happened...

The majority of high-profile prosecutions to date have resulted from investigations following a serious road incident, often including a fatality.

There was no suggestion in the judgment that any specific incident had triggered this prosecution. In fact the Court acknowledged that Awaba Road was "fairly isolated, described as a backroad."

An appreciable risk of public harm is one of the factors that the Heavy Vehicle National Law specifies for severe risk breaches. In this regard, the Magistrate observed that "in this case, although such public harm was never realised, should an overloaded truck be have been involved in a driver/pedestrian collision, or a failure to break, or turn, there could have been catastrophic consequences, as was the case in Kemp v Doble Express" (in which there was a fatality).

This emphasises the fact that chronic systemic failures are as culpable as one-off, acute breaches.

Choose your counterparties wisely...

The Magistrate also observed that the overloading was limited to Jet, and there was no evidence that the vehicles operated by the other carrier PSG were overloading either systematically or at all.

Nor was there any suggestion in the judgment that Remondis' own fleet was engaged in any breaches of CoR.

The Court however observed that because Remondis paid Jet per tonne, "ultimately it was their contractual arrangement, together with Remondis' lack of scrutiny of the invoices, which specified the weights carried on every occasion that allowed Jet to benefit from being paid for weight that was unlawfully carried."

As part of its plea in mitigation, Remondis argued that it mistakenly relied on Jet to ensure that loads were within lawful limits and that the Council and Jet would fulfil their chain of responsibility requirements.

This submission, the Court said "falls somewhat flat however when viewed, as it must be through the prism of chain of responsibility legislation, and the substantial if not premiere role that Remondis played within the transport chain.

The Magistrate stated that "it was critical therefore that Remondis had an active system in place to manage the risk and to minimise the chances of road transport law being breached; Kemp v Air Liquide."

What should Remondis have done?

Because the weighbridge was remote from the Awaba site, the Court considered that Remondis should have had immediate, real time access to the data. It should have ensured from the outset that its equipment could measure the consignments being loaded.

Its compliance procedures and manuals did not relate to third party carriers or deal with loading and consignment weight compliance. The Magistrate observed, "Thus, while Remondis may have been aware of its obligations, I am not able to place a great deal of weight on the contention that that awareness was ever properly translated into practice."

After the event, Remondis had taken a number of steps, including;

  • Implementation of a loading protocol so that applicable mass limits are identified and can be verified at the point of loading
  • Installation of load cells at the loader bucket to ensure that legal load limits are not exceeded
  • Implementation of communications protocols between Remondis and the weighbridge or driver to ensure that no truck is allowed to leave the site overweight
  • Provision of supervision to ensure compliance or corrective action when noncompliance occurs.

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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