Australia: Tightening the chain of responsibility – Implications for the construction sector

Last Updated: 6 September 2018
Article by Nathan Cecil and Rebecca Niumeitolu
Most Read Contributor in Australia, September 2018

The new Heavy Vehicle National Law (HVNL) will commence on 1 October 2018. The new laws will have a wide ranging impact on the construction sector, including the obligations of civil contractors. This article tells you what you need to know to finalise (or kick-start, if you are behind) your preparation for the new laws and penalties.

Why is it important to be ready for the new laws? Aside from the clear safety advantages, four words: 'it pays to comply'.

  • businesses that do not comply will be seen as a compliance risk and a weak link in the chain ­– customers and other businesses may think twice before engaging such weak links and exposing themselves to compliance risk
  • the potential penalties for non-compliance are significant.

What is the Chain of Responsibility (CoR)?

The CoR is a principle that underpins the HVNL. It recognises that transport safety risks don't just transpire when a driver hits the road, they often arise because of failings in the larger transport supply chain.

The CoR manifests itself in the obligations we see imposed not just on drivers and operators but on all parties that can directly affect safety outcomes of transport activities.

The list of responsible parties includes businesses that consign, receive or deliver machinery, building materials, waste and other goods using heavy vehicles. It also includes parties involved in loading and loading a heavy vehicle.

In summary, the CoR in the HVNL context means that the regulator's net is cast wide and if a transport risk or incident arises, any party involved in it, or a party who had the ability to control or avoid that risk, could get caught.

What is covered?

With a couple of exceptions, the CoR laws apply to heavy vehicles across Australia. A heavy vehicle is a vehicle or combination with a gross vehicle mass (maximum permitted loaded mass) of 4.5 tonnes or more.

The CoR laws cover the major causes of unsafe loads, vehicles and drivers:

  • Mass – A loaded vehicle must not exceed its gross or axle mass limits
  • Dimension – No part of a vehicle or its load may extend beyond the permitted limits in any direction
  • Load restraint – All goods on a vehicle, including those within a container, must be restrained so that they meet the Performance Standards set out in the Load Restraint Guide 2018 and are not able to shift to a degree that would contribute adversely to vehicle instability or become dislodged from the vehicle
  • Speed – No vehicle may exceed any speed limit and certain heavy vehicles must be fitted with 100km/h speed limiters; no person may require, request, encourage or provide any incentive for a driver to speed
  • Fatigue – No driver may drive while adversely affected by fatigue or in breach of mandatory work/rest hours; no person may require, request, encourage or provide any incentive for a driver to drive in breach of fatigue laws
  • Vehicle roadworthiness – Every vehicle must comply with relevant heavy vehicle standards as to their registration requirements and roadworthiness.

What's new?

The new laws call on CoR parties to step it up a notch.

Key differences between the old and the new laws are:

  • the new laws consolidate most of the extended CoR party obligations into an overarching primary duty to ensure, so far as reasonably practicable, the safety of their transport activities. 'Transport activities' include consigning, packing, loading, carrying, unloading and receiving goods; scheduling road transport; operating and maintaining a vehicle; and operating premises at which vehicles are loaded/unloaded
  • the new laws impose a distinct obligation on executives to exercise due diligence to ensure their businesses comply with their safety duties.

What this means for businesses is that they need to get on the front-foot with their safety compliance and reporting measures.

For a CoR business to ensure, so far as reasonably practicable, the safety of its transport activities, reverse engineering a reasonable steps defence, figuring out what the business did or did not know in respect of a single breach and the steps taken to counter its occurrence will not be enough. Under the new laws, CoR parties are required to have the following business practices in place:

  • CoR compliance policies
  • working procedures for any CoR transport activity
  • a system of induction, awareness and training in compliance with the CoR laws and relevant policies and procedures
  • CoR compliance terms in all supply chain contracts (including procurement/supply, transport, warehousing/packing/handling, distribution and customer contracts)
  • a system of CoR compliance performance monitoring and incident reporting and rectification
  • executive compliance performance reporting.

Examples of the above systems in practice include:

  • if a vehicle is driving to a site and its load becomes dislodged, even if no collision occurs, the issue needs to be identified, notified and communicated to parties down the supply chain and up their organisational structure to Executives. Those CoR parties then need to consider how and why that breach occurred and what steps can be taken to avoid it in the future
  • when planning earthworks, excavation and the removal of soil volumes, check HVNL compliance of contractors and that all parties are across their obligations in respect of assessing transport risks; mapping out the appropriate transport routes; ensuring that there are sufficient resources to secure loads, weigh loads and assess their dimensions; and implementing contingency plans if an incident or unforeseen transport risk arises.

So, how much will it hurt to get wrong?

Maximum penalties under the new HVNL have been dramatically increased.

Maximum penalties for a corporation are $3 million. Maximum penalties for an individual (eg: executives) are $300,000 and up to five years in jail.

So, the answer is, 'it will hurt if you do not get this right'. Not many businesses will be able happily to swallow $3 million in unbudgeted and unprofitable expense. Not many bosses will enjoy being fined $300,000 and sent on a mandatory holiday from home for five years.

In addition, courts can disqualify individuals from running a transport business or being in charge of any relevant 'transport activity' and make orders for businesses to be subject to a program of performance management and oversight by the regulators, called a 'supervisory intervention order'.

With the new laws coming in on 1 October 2018, it's likely that the regulator will be on the prowl to set an example for industries to comply with their new HVNL obligations; the construction industry, which so heavily relies on the use of heavy vehicles, is one such industry to keep a close eye on. As we see it, there are two choices, comply or face the unforgiving burden of paying up.

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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