The National Heavy Vehicle Regulator (NHVR) has accepted an enforceable undertaking from the Lindsay Transport Group (Lindsay) after the death of a truck driver in November 2018 saw the trucking giant charged with three Category 2 offences under the Heavy Vehicle National Law (HVNL). This undertaking was proposed by Lindsay following an NHVR investigation into its safety policies and procedures and as an alternative to court proceedings.
The Lindsay case is just one example in a long list of undertakings adopted by trucking companies over the last 12 months. In this article, we unpack the requirements of Lindsay's enforceable undertaking before looking at enforceable undertaking more generally, including when they will be accepted, their benefits and the costs of non-compliance.
The Lindsay enforceable undertaking
The charges laid against Lindsay stem from alleged breaches of its primary duty, which exposed a driver to a risk of death or serious injury or illness without reasonable excuse. As part of this undertaking, Lindsay has committed to pledge $750,000 over a two-year period in an effort to mitigate future risks to driver safety.
The enforceable undertaking imposed five key initiatives which Lindsay must comply with to avoid future prosecution:
- $125,000 to be donated to a not-for-profit organisation or research/medical entity with a specific focus on heavy vehicle driver medicals
- $350,000 - $450,000 to design and develop a web-based driver training platform aimed at educating industry members on key risks in the industry and is able to be adapted for use by other transport operators
- $50,000 - $75,000 to engage an expert to conduct a review of its sleep management practices and procedures
- $50,000 - $75,000 to deliver a training program on topics such as fitness for work, break scheduling and managing driver fatigue issues
- the remaining $25,000 will be allocated to a media campaign to raise awareness for the health and safety issues facing heavy vehicle drivers.
What is an enforceable undertaking?
An enforceable undertaking is a voluntary agreement entered into by a party as an alternative to prosecution for an alleged breach of the HVNL. The NHVR will only accept an undertaking where they are satisfied that the party is willing and capable of complying with their obligations under the agreement.
Given the onerous long-term obligations they impose, enforceable undertakings are sometimes reserved for major breaches of the HVNL, but can be proposed in response to any charge. As part of the undertaking, parties commit to a range of different measures, including, by way of example, to:
- cease the behaviours that led to the alleged contravention
- conduct, facilitate, or fund research into a heavy vehicle transport safety issue relevant to the contravention and/or industry
- conduct promotional and education campaigns targeted at the heavy vehicle transport and supply chain sectors
- establish and/or maintain a transport safety management systems
- participate in compliance monitoring activities
- donate funds to a not-for-profit organisation with a specific focus on heavy vehicle transport safety, including short, medium and long-term objectives.
In the Lindsay case, variations of all of these measures and commitments were included in the enforceable undertaking.
When will an enforceable undertaking be accepted?
The availability of an enforceable undertaking will depend on the nature of the alleged offence, as well as the stage of proceedings.
Section 590A(1) of the HVNL prevents the NHVR from accepting an undertaking in relation to a Category 1 offence except in exceptional circumstances. By way of reminder, a Category 1 offence is when a party is found to have recklessly engaged in conduct that exposes an individual to a risk of death, serious injury or illness without reasonable excuse. Not surprisingly, an undertaking will also most likely be refused where the offence has already been prosecuted and proceedings have been finalised. In this way, a party cannot take a 'wait and see' approach with proceedings and then decide on the option they consider to be the 'better' outcome once they have been finalised.
The advantages of enforceable undertakings and cost of non-compliance
Enforceable undertakings afford conceivable benefits, offering greater flexibility in outcomes to a party. Besides the obvious benefit of avoiding costly litigation, parties are also given the opportunity to improve their workplace and employee safety practices. However, the obligations imposed by an enforceable undertaking are not to be taken lightly. Any breach of an undertaking will be met with harsh penalties of up to $10,000. Parties also run the risk of having their enforceable undertaking discharged and their criminal prosecution revived.
- The Lindsay enforceable undertaking is one of many enforceable undertakings accepted by the NHVR in the last 12 months.
- Enforceable undertakings:
- are voluntary agreements entered into by a party as an alternative to prosecution for an alleged breach of the HVNL
- are generally reserved for the most serious breaches of the HVNL but will generally not be accepted for Category 1 breaches
- require the relevant party to commit to a number of measures to improve their own and the industry's safety practices and procedures
- have a number of benefits, including greater flexibility in outcomes and the avoidance of costly litigation, but the cost of non-compliance can be high.
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.