What do recent HVNL changes mean with regards to how they are interpreted & obligations under Workplace Health and Safety legislation?

What do recent HVNL changes mean with regards to how they are interpreted/obligations under Workplace Health and Safety legislation?

On October 1, 2018 changes were made to Heavy Vehicle National Law. The change does not introduce new duties but clarifies the way existing duties to ensure the safe operation of heavy vehicles are be interpreted, and how the legislation will be applied in the event of an incident.

The changes are intended to ensure others, who impact on the safe operation of a heavy vehicle, such as consignors, consignees, loaders, schedulers, transport operators, are held responsible in the event that their actions contribute to an incident or create a risk involving a heavy vehicle.

Prior to Oct 1, 2018, in the event of an incident a party in the chain was assumed to be guilty of an offence under the NHVL unless they could demonstrate that they had taken all reasonable steps to prevent the incident or there were no steps the person could reasonably be expected to have taken to prevent the incident. Essentially guilty until proven innocent.

This has been modified to require that parties eliminate or reduce risk so far as is reasonably practicable and shifts the onus of proof onto to the prosecution to prove that a party in the chain has failed in their duty. Essentially innocent until proven guilty.

The changes bring the interpretation of duties owed under the NHVL into line with the interpretation of duties owed under workplace health and safety legislation.

What this means is that the following factors will be considered when determining if a party has met their duty to ensure the safe operation of a heavy vehicle so far as is reasonably practicable;

  1. The seriousness of the risk involved
  2. The likelihood of the risk occurring
  3. The knowledge the party had about the risk and ways of controlling it that thy party had or should have had
  4. The suitability of implementing a particular control
  5. The cost of a particular control

This duty has been considered by the High Court and;

  1. Duties are limited to matters over which a party has control.
  2. not requiring employers to ensure accidents never happen
  3. The Court must look at the facts of each case as practical people would look at them not with benefit of hindsight or the wisdom of Solomon
  4. Such a responsibility can only be discharged by taking an active imaginative and flexible approach to dangers
  5. Questions of safety and practicability in many cases raise issues of common sense rather than specialist knowledge.
  6. Does not mean doing anything possible.
  7. the capacity to influence and control another party is limited by the cost and effort of controlling and directing the other party,
  8. a party engaging an independent contractor is entitled to rely upon the expertise of that contractor to manage the risks arising from the contractor’s operations.

So just because you are in the chain you are not assumed to have control over others in the chain. For example, loaders must ensure loads are safe, and loaded properly but are not responsible for driver conduct on the road such as speeding, or breaches of road rules or consignors and consignees are entitled to rely on transport operators to manage vehicle safety and driver fitness for work.

What will the likely impact be on parties to the Chain including distributors, transporters and receivers of goods?

The change requires that all parties in the chain understand their own operations, identify how they may create risk to the operation of a heavy vehicle and do what is reasonably practicable, as defined by the Courts, to eliminate or reduce that risk.

In the event of an incident the steps to determine liability will include;

  1. identifying the parties “involved” in the incident (who is in the chain) and
  2. identifying the risks which lead to the incident and
  3. confirming whether a party had (real) control or influence over the risk and
  4. confirming whether they eliminated or controlled those risks so far as is reasonably practicable (referring to established WHS legal principles)
  5. whether those risks if not eliminated or controlled contributed to the incident.

There will be a presumption of innocence and the prosecution will have the burden of proof to prove guilt.

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What misinformation / misunderstandings / confusion do you see regarding the above in the transport industry?

Employers across the chain are being wrongly advised that they will be held liable in the event that an incident occurs involving a heavy vehicle regardless of their role or actual influence over the factors which lead to the incident. Examples have included that a consigner may be held responsible if a transport operator fails to maintain their vehicles, a consignee may be held responsible for a driver being fatigued etc where these operations are outside the control of the consignor or consignee.

Phrases such as

  • “every party in the heavy vehicle supply chainis responsible and may be held liable for safety breaches committed anywhere along the Chain”
  • Your future in supply chain depends on your ability to ensure that any possible risk is removed from causing danger or harm to anyone else, whether they work for your business or not.
  • Under the HVNL parties are also required to take all reasonable steps to exercise control or influence over the compliance conduct of third parties in your supply chain.
  • a manufacturer can be held responsible for the compliance of any truck operating within its supply chain, whether operated by the manufacturer internally or by an outsourced provider engaged within that supply chain.

are misguided and misrepresent the duties and how they apply. The term “shared obligation” has caused significant confusion and anxiety across the transport industry through its misinterpretation.

The intention of creating a shared obligation is to make sure a party doesn’t do anything which forces another party in the chain to engage in unsafe practices. It is not about interfering in other parties’ operations which you are not directly involved in

There is also significant misinformation about the way in which parties can meet their obligations. Many COR systems being promoted focus on examining what others in the chain are doing to manage their risks, rather than focusing on a party’s own operations and consequent risks. Examples include systems which require collecting from other transport operator’s vehicle maintenance records, driver fatigue records, licenses, obtaining evidence of training, induction and safe operating procedures. None of which is necessary.

How can companies best avoid overcomplicating processes and target their efforts to support compliance and best practice management of transport-related safety?

On a practical level each party needs to take a traditional risk management approach to management of safety involving heavy vehicles. This means identifying how you might contribute to or create a risk in the operation of that vehicle and then eliminating or reducing those risks so far as is reasonably practicable.

What parties do NOT need to do is implement complex systems monitoring the safety arrangements of others in the chain.

The essential elements of COR compliance include

  • Consider how your operations pose risk to the operation of a heavy vehicle
  • Implement processes to manage those risks
  • Engage contractors with a good reputation
  • Ask the right questions i.e. do you have systems to manage safety? (yes or no)
  • Don’t collect copious paper work
  • Monitor and communicate safety performance during the contract
  • Clearly establish the scope of work and responsibilities of each party for safety
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What are the implications of the above for OHS leaders? Steps/advice for them?

Qualified safety professionals are vital in assisting parties in the chain to clearly understand their obligations under the “new” interpretation of duties owed under the NHVL.

Qualified and certified OHS professionals clearly understand the application of WHS legal principles and they can support parties to implement efficient and effective systematic management of heavy vehicle related risks. Including looking closely at a party’s operations and identifying where they can impact on the safety of transport operations vs misguidedly focusing their efforts on monitoring the operations and safety arrangements of others in the chain.

Safety professionals have an important role in implementing effective targeted safety management strategies, which correctly interpret the duties.

The essential steps to complying with the modified duties under the NHVL reflect long held risk management principles including;

  1. Identifying how your operations can impact on heavy vehicle safety
  2. Implementing risk management strategies to eliminate or reduce risks so far as is practicable.
  3. Monitoring the effectiveness of those strategies and making modifications where necessary.
  4. Working with others in the chain to support safe practices in areas you have control or influence.

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