Pursuant to section 705 of the Heavy Vehicle National Law (HVNL), the National Heavy Vehicle Regulator (NHVR) has the power to make guidelines about the preparation and content of an industry code of practice that is registered under the HVNL. And with that power, comes great responsibility to ensure parties in the Chain of Responsibility (CoR) are in compliance with the HVNL.
On 29 November 2019, the NHVR approved the first Registered Industry Code of Practice, otherwise known as the Master Code.
The Master Code is an industry-led framework which provides a set of national standards and procedures to assist businesses in the CoR to comply with the various obligations under the HVNL.
The Master Code sets the benchmark for businesses to identify the common CoR risks arising from supply chain activities and guide businesses on how to identify CoR risks arising in their business and assess which of the available and suitable methods, systems or tools are appropriate for their business.
However the Master Code isn’t just a safety and compliance tool for businesses in the CoR. It also has legal standing. Section 632A of the HVNL applies in a proceeding for an offence under the HVNL and allows a registered industry code of practice to be admissible as evidence of whether or not a duty or obligations under the HVNL has been complied with.
A court may:
- have regard to the Master Code as to what is known about hazard and risk assessment and control
- rely on the Master Code to determine what controls are reasonably practicable within sectors covered by the Master Code.
Accordingly, the Master Code isn’t simply a set of suggestions to help businesses with their safety and compliance under the HVNL. The Master Code can and will be used against CoR parties if it can be shown that they have completely failed to identify and address the common risks identified in the Master Code.
Given the significance of the Master Code in the CoR space, we will spend the next few months addressing the Master Code’s application to each “pillar” of the CoR regime. In this article, we address the application of the Master Code to mass, dimension and load restraint.
Mass, dimension and load restraint
Given it is early in 2019, we start with a refresher on the mass, dimension and load restraint obligations under the HVNL.
The first port of call is the overarching primary duty under section 26C of the HVNL. Under section 26C, each party in the CoR for a heavy vehicle must ensure, so far as is reasonably practicable, the safety of the party’s transport activities relating to the vehicle.
Each party must, so far as is reasonably practicable:
- eliminate public risks and, to the extent it is not reasonably practicable to eliminate public risks, minimise the public risks
- ensure the party’s conduct does not directly or indirectly cause or encourage the driver of the heavy vehicle to contravene this law; or another person, including another party in the chain of responsibility, to contravene this law.
In order to comply with the “primary duty”, CoR parties must address the mass, dimension and loading requirements under Chapter 4 of the HVNL. The purpose of that chapter is to:
- improve public safety by decreasing risks to public safety caused by excessively loaded or excessively large heavy vehicles
- minimise any adverse impact of excessively loaded or excessively large heavy vehicles on road infrastructure or public amenity.
The HVNL attempts to achieve this purpose by imposing mass, dimension and loading requirements for heavy vehicles, restricting access to certain roads by some heavy vehicles and allowing regulatory schemes to apply more flexible mass limits. Particularly in relation to load restraint, with some recent fatalities on our roads being partly attributed to a failure to properly secure loads, there is a significant spotlight on load restraint and all parties subject to CoR must ensure they are compliant with this very technical area.
Pursuant to sections 96, 102 and 111 of the HVNL, a failure to comply with the requirements under Chapter 4 or allowing another person to be in breach, will result in a breach unless there is a reasonable excuse.
The stated purpose of the mass, dimension and loading requirements in the HVNL is to decrease the risks associated with excessively loaded or excessively large heavy vehicles and as a consequence, improve public safety.
Accordingly, mass breaches are often the target of prosecution as mass breaches are often easy to detect in roadside inspections. Mass breaches get particular attention because of the disproportionate impact over mass heavy vehicles have on public infrastructure and because the poor performance of an over-mass heavy vehicle often leads to crashes with disastrous consequences.
The Master Code identifies a range of risks associated with non-compliant mass, dimension and load restraint, including risks that:
- off-road parties such as consignors, schedules or loaders are not carrying enough of the weight of ensuring mass compliance by, for example, not ensuring that they are aware of the mass of the load that they are providing, ensuring that they provide accurate information and instructions to the driver/transport operator in relation to the load mass or not being aware of the mass limits applying to a heavy vehicle and its intended route
- unsatisfactory load restraint practices affect the stability of a heavy vehicle and is on-road performance, resulting in the driver losing control. As you would expect, unevenly distributed load or loads with a high centre of gravity increase the risk of the heavy vehicle rolling over and causing significant damage to not just the vehicle, but everyone and thing in its vicinity
- heavy vehicles in breach of the mass, dimension and load restraint requirements will cause significant damage to road infrastructure and result in serious incidents and traffic congestion. It is a stated goal that the HVNL attempts to curtail any adverse impact of heavy vehicles on road infrastructure and/or public amenity. Accordingly, the HVNL forces parties to ensure they are proactively trying to address the risk of incidents such as over-height loads colliding with bridges, tunnels and overhead powerlines.
We set out below a list of contributing factors, as extracted from the Master Code, which may cause safety risks or encourage breaches of heavy vehicle mass, dimension and loading requirements:
- lack of policy and procedures, or systems to report non-compliance
- ineffective two-way consultation, cooperation and coordination of all parties along the supply chain
- inadequate information, training, instruction and/or supervision of mass, dimension and loading requirements and associated procedures
- conflicting commercial arrangements between parties
- poorly planned or prepared loads and/or inadequate oversight to verify suitability
- incorrect placement and positioning of loads
- lack of weighing or measuring equipment or method inflexible loading and unloading practices, including inability to re-adjust loads
- improperly restrained loads and/or inadequate expertise to verify suitability of load restraint systems
- non-compliance with vehicle and equipment operating requirements
- inadequate maintenance of equipment
- deliberate actions of drivers or other CoR parties
- inadequate monitoring and/or due diligence by all CoR parties to ensure safety and compliance of transport activities.
How to approach compliance
The Master Code recommends parties implement a risk-based approach to manage safety and ensure compliance with the HVNL provisions in relation to mass, dimension and loading.
There are many ways that this can be achieved and there isn’t going to be one control that can be implemented which will address every risk. Every compliance framework must be agile enough to respond to new and existing risks in a business’ commercial activities.
For all CoR parties, risks and the controls to mitigate those risks will vary. For most CoR parties, there will be a control for the implementation of a business-wide policy not to enter a contract that is considered to have a risk of causing a driver or operator to breach mass, dimension and loading requirements.
However, other controls will be unique to the specific business and where they sit along the CoR. For example, employers and prime contractors will have to make sure a review process in place to check a driver or subcontractor is performing the activity according to their employment or contractual arrangements and that those arrangements are effective in managing mass, dimension and loading risks.
On the other hand, a scheduler will need to have a control in place to make sure route (journey) plans take into consideration mass and dimension requirements to ensure the route/ infrastructure is suitable for the load and complies with any route permits or conditions as applicable.
As stated above, the Master Code isn’t just a list of suggestions but a tool to assist CoR parties to ensure compliance with the HVNL but also extends to other safety matters beyond the core responsibilities of CoR.
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.