The new stuff coming to Chain of Respnosibility [CoR] in mid-2018
What is Chain of Responsibility?
First of all, Chain of Responsibility [CoR] is the legal description of all accountable people influencing a fatigue-regulated heavy vehicle [S214, 227 HVNL]. It includes:
(a) an employer of the vehicle’s driver;
(b) a prime contractor for the vehicle’s driver;
(c) an operator of the vehicle;
(d) a scheduler for the vehicle;
(e) a consignor of any goods for transport by the vehicle that are in the vehicle;
(f) a consignee of any goods in the vehicle;
(g) a loading manager for any goods in the vehicle;
(h) a loader of any goods in the vehicle;
(i) an unloader of any goods in the vehicle
The Heavy Vehicle National Law [HVNL] imposes certain obligations on these parties with respect to, among other things, fatigue management, maximum permissible mass and dimensions of vehicles, and load restraint.
2018 Amendments to the HVNL
The HVNL changes will be introduced to all states and territories except WA and NT. As summarised by Thompson and Peake, they include:
- New Primary Duty - the "so far as is reasonably practicable" test
Under HVNL amendments, every participant in the CoR will be under a non-transferrable duty to ensure, "so far as is reasonably practicable", the safety of that party's transport activities relating to the heavy vehicle. Each party must also ensure, so far as is reasonably practicable, that its conduct does not cause or encourage the driver or any other party to breach any CoR Laws. This will replace the previous obligation to take "reasonable steps" to ensure compliance.
- Executive Officer Liability
As part of the amendments, a duty will be imposed on executive officers to exercise due diligence to ensure that a corporation complies with its duties under the amended HVNL. Breach of this duty may result in executive officers being held personally liable. Based on the wording of the new amendments, it is possible for executive officers to be held liable for breach of this duty, even where the corporation has not committed an offence under the HVNL.
Amended penalties have also been introduced in line with the new primary duty including a maximum of five years imprisonment, a $300,000 fine for individuals or a $3 million fine for corporations.
It is important to note that defences for offences under the HVNL have also been amended to encourage a targeted and business specific approach by companies and individuals. Accordingly, whether a business or individual has in effect "done its best" to comply with its obligations will be judged in relation to what was reasonably practical for the particular business, rather than by a prescriptive checklist of reasonable steps.
Passenger transport chain participants should review and implement policies and practices to effectively manage the risk of breaches of the HVNL within the organisation, but also to manage risks in the supply chain from participants "up the line" and to stop the transferral of risk "down the line".
This may include employee training, creation and implementation of management plans, amendment of policies and procedures and review of key commercial agreements.
It is wise to seek the advice of external passenger transport consultants (not just truck industry experts), as they have the specialised knowledge of the intricacies of the bus and coach sector.
You can conduct an audit of your current systems and ascertain how to develop and implement (and regularly review) enhanced operations to protect your entire business.
Remember, you are not only protecting yourself and staff, but your clients as well.
Heavy Vehicle National Law (2014) last accessed 5-10-2017 <https://www.legislation.qld.gov.au/view/pdf/inforce/current/act-2012-hvnlq>
Thompson, Stephen and Peake, Julian (2017) What do amendments to chain of responsibility legislation mean for supply chain participants? last accessed 5-10-2017 <http://www.mondaq.com/article.asp?articleid=634274&email_access=on&chk=2018368&q=1384094>