ARTICLE
20 March 2023

Is the Heavy Vehicle National Law driving businesses out of business?

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Holding Redlich

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Holding Redlich, a national commercial law firm with offices in Melbourne, Canberra, Sydney, Brisbane, and Cairns, delivers tailored solutions with expert legal thinking and industry knowledge, prioritizing client partnerships.
Businesses need to identify the safety risks associated with their operations and remove or reduce those risks.
Australia Transport
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There has been some online discussion recently, with people questioning whether the Heavy Vehicle National Law (HVNL) regime, the approach taken by the National Heavy Vehicle Regulator (NHVR) and the standards imposed by the courts are too high. Specifically, the question has been asked whether it is possible for businesses, particularly small and medium-sized businesses, to reasonably be expected to meet the standards required and/or fines and penalties imposed for breach.

This raises the ultimate question – is the HVNL driving these businesses out of business?

The scenario typically plays out like this; a number of trucks belonging to a small to medium family-owned business are intercepted. The intercepts uncover some problems with their HVNL safety management. NHVR investigation determines that the business cannot produce records that demonstrate any considered HVNL safety framework or consistent business practices that have been put in place to identify or address such risks. The business is prosecuted. The court observes that the business and its executives have failed to assess the risks that their business operations pose to the public, their employees and drivers or to put in place any measures to manage these risks. The court gives guidance on what the business should be doing – including requirements that the business invests the time, personnel, systems and money needed to actively manage the problem – and imposes a significant financial penalty on the business as a result of its failures.

Comments raised often include the following:

1. there was no accident or injury so penalising the business is unnecessarily harsh

Operations aren't safe just because no one has died. Businesses operating in a way that puts people at risk, but where no one has yet been injured, aren't well-run businesses, they are lucky. Relying on luck to manage safety isn't good risk management, it is gambling – but with people's safety and lives as the chips.

2. imposing high fines on such businesses, where costs are high and margins tight, will run them into the ground

Safety risks and incidents are not a 'cost of business' (that is, an acceptable cost that arises from time to time). In fact, managing safety risks is a proper cost of business.

If those businesses had properly invested in safety, the costs might be less than the fines they will continue to receive for failing to address safety. Moreover, it has also been shown that businesses with safety management systems are often better run, with higher productivity, fewer incidents and delays and as a result, more profitable. Therefore, it is important for operators to adopt the mindset that safety pays.

3. the standards imposed by the courts are too high – businesses don't have the time to put in the management and oversight required

Managing safety risks can seem daunting for many businesses, with all the talk about safety management systems, risk management frameworks, control measures, compliance assurance, and etc. That is unfortunate, but it is not an excuse for neglecting safety.

At the end of the day, it all boils down to this – businesses need to identify the safety risks associated with their operations and take steps to remove or reduce those risks. It is the doing that counts. You don't need a comprehensive 64-chapter digital hypertext-linked safety management system run by artificial intelligence on a quantum computer. Sometimes, simpler is better. What you do need is some consistently enforced business practices or safety checks. They don't have to be elegant, fancy or pretty. They can be blunt and ugly. They just have to be effective. For example, routine load planning or loading instructions, weighing or cross-checking driver work diaries against job sheets.

It's easy for businesses to get deafened by all the noise surrounding the HVNL. However, if you tune that out, you'll find a clear and simple melody to follow underneath. We all need to start singing the safety tune, rather than trying to change the channel.

How can we help?

If you have any questions about this article or whether your transport activities comply with the HVNL, please get in touch with partner Nathan Cecil or a member of our Transport, Shipping & Logistics team below.

  • This article was originally published in CoR Adviser. The article is © 2023 Portner Press Publishing Pty Ltd and has been reproduced with permission of Portner Press.

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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