RECENT HVNL CHANGES AND YOUR TRANSPORT BUSINESS

RECENT HVNL CHANGES AND YOUR TRANSPORT BUSINESS

In October 2018, changes were made to Heavy Vehicle National Law. The changes clarify how existing duties of parties in the chain of responsibility (COR) are interpreted.

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The changes ensure anyone who impacts on the safe operation of a heavy vehicle—such as consignors, consignees, loaders, schedulers and 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 the changes, in the event of an incident a party in the chain was assumed to be guilty of an offence under NHVL unless they could demonstrate that they had taken all reasonable steps (the reasonable steps defence) to prevent the incident, or that there were no steps the person could reasonably be expected to have taken to prevent the incident—essentially guilty until proven innocent.

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The changes require that risks to the operation of a heavy vehicle are eliminated or reduced so far as is reasonably practicable, and shifts the onus of proof onto the prosecution to prove that a party in the chain has failed in their duty—essentially innocent until proven guilty.

This brings the interpretation of the duties into line with workplace health and safety legislation which considers the following factors when assessing compliance:

  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 they had or should have had
  4. The suitability of implementing a particular control
  5. The cost of a particular control

Reasonable practicability has been considered by the High Court and the Court observed that:

  1. Duties are limited to matters over which a party has control.
  2. The duty does not require 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 (eliminate or reduce risk so far as is practicable) can only be discharged by taking an active imaginative and flexible approach to dangers
  5. The duty does not mean doing anything possible to prevent an accident but doing what is reasonably practicable
  6. The capacity to influence and control another party is limited by the cost and effort of controlling and directing the other party,
  7. 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

As a result, you are not assumed to have or are required to take control over others in the chain just because you are a party 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. Consignors and consignees are entitled to rely on transport operators to manage vehicle safety and driver fitness for work.

WHY IS THERE CONFUSION?

Sadly, there is significant confusion across the transport industry due to parties being wrongly advised that they will be held liable in the event that any incident occurs involving a heavy vehicle, regardless of their role or actual influence over the factors which lead to the incident. Examples have included:

  1. every party in the heavy vehicle supply chain is responsible and may be held liable for safety breaches committed anywhere along the Chain
  2. 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
  3. 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
  4. manufacturers 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

The term “shared obligation” has caused significant confusion and anxiety 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 COR obligations. Many COR systems 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, licences, obtaining evidence of training, induction and safe operating procedures—none of which is necessary.

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SIMPLE RISK MANAGEMENT AND COMPLIANCE

All parties in the chain must 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.

The Importance Of Tracking Contractor Compliance

The essential steps to complying with the modified duties under the HVNL reflect long held risk management principles, including:

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

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

THE ROLE OF QUALIFIED WHS PROFESSIONALS

Qualified safety professionals are vital to assist parties in the chain to clearly understand their obligations under the “new” interpretation of duties owed under the HVNL, as they clearly understand the application of WHS legal principles. They can support parties to implement efficient and effective systematic management of heavy vehicle related risks.

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