Australia: Documenting Chain of Responsibility compliance – is it important?

Last Updated: 23 February 2018
Article by Nathan Cecil
Most Read Contributor in Australia, March 2019

In the realms of Chain of Responsibility (CoR) compliance, 'being seen to be doing' or being able to demonstrate that you have done something is sometimes equally as important as the 'doing' in the first place.

The reasons for this are many and include:

  • documenting your compliance policies and procedures assists in communicating them within your business and to relevant parties throughout your supply chain
  • compliance is increasingly becoming a mandatory selection criterion in tenders and a mandatory performance term in all supply chain contracts and must be demonstrated or proved in order to secure work or respond to allegations of default
  • if your operations are investigated or you are prosecuted in Court, you will have to demonstrate to the regulators/Court that you have complied with your obligations
  • certain provisions of the Heavy Vehicle National Law (HVNL) require you to retain records for a mandatory period of at least three years.

Documenting CoR compliance assists training and awareness

Under the HVNL you are required to take all reasonable steps to ensure that your employees are suitably trained in CoR compliance. You are also required to take all reasonable steps to exercise control or influence over the compliance conduct of third parties in your supply chain. Spreading the message evangelically by word-of-mouth is going to be a poor delivery method to reach your target audience. Also, solely word-of-mouth delivery runs a greater risk that the message will be changed and miscommunicated as it is passed from one person to the other. Reducing your policy, procedures and training and awareness materials to writing (and this includes electronic 'writing' in the form of induction videos) ensures that they are easy to disseminate to a wide audience, their message remains clear and the same, no matter how many times they are passed on and hopefully means that they are interpreted and implemented consistently.

Documenting CoR compliance assists your tendering and contract performance management

As the CoR message spreads throughout all sectors and right up and down the Chain, CoR compliance performance is increasingly becoming a focus of contracting.

It is now very common to see CoR compliance as a pre-condition to the award of tenders or contracts in the construction, projects and logistics sectors. Principal contractors, project owners and importers and distributors of goods are increasingly wanting assurance that their subcontractors are CoR compliant before they are willing to engage them. When tendering for work then, it is important that you are able to produce CoR compliance records which paint a positive picture of your awareness of and compliance with your obligations. Obviously, your policies, procedures and training materials discussed above will be relevant. In addition, being able to produce records of compliance inspections, audits and CoR compliance performance figures will help you paint a positive picture.

Likewise after a contract has been awarded, most supply chain contracts now contain terms that penalise you for CoR breach – in fact, the HVNL implicitly requires every supply chain contract to contain CoR compliance clauses and the Courts have consistently said that they wish to see contractual penalties imposed for CoR breach. If your counterpart alleges a CoR breach, it is important that you are able to refute this by producing transport documentation records which demonstrate compliance. Alternatively, if you are in breach, it will be important for you to be able to demonstrate that you have taken steps to remedy the breach and reduce the risk of recurrence.

Documenting CoR compliance assist you in investigations

If the regulators come knocking or you are 'invited' to Court, you had better have your house in order.

The regulators are unlikely to accept your word at face value and will likely require hard evidence to back up what you say. In order to be persuasive, this must usually be in the form of documents created at the time of the relevant conduct

Even better, if you are able to demonstrate to the regulators that you are doing your best to comply, rather than that your business doesn't have any compliance framework in place, they are more likely to work with you to plug any gap, rather than taking you to Court. Having strong, complete and easily producible documentary compliance materials to hand can help you avoid ever going to Court in the first place.

If you do end up in Court, Courts are usually only persuaded by objective independent evidence and documents are usually accepted as the best evidence.

Documenting CoR compliance is the law

Last but not least, any document required to be kept under the HVNL and (under s6323) any risk and hazard assessment relating to speed and fatigue management, must be kept for a minimum period of three years. It is a breach punishable by penalty/prosecution if you fail to keep those records.

So, while 'doing' is undoubtedly supremely important, don't ever overlook the benefit of 'being seen to be doing' or being able to demonstrate that you have done something.

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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