In the first of a three-part series, we look at recent changes to the HVNL that could impact your preparations for the new chain of responsibility regime
After a series of requests from transport and logistics professionals, the National Heavy Vehicle Regulator (NHVR) dished out a reprieve in June – the new chain of responsibility (COR) regime would commence on October 1 – not July. As NHVR chief executive Sal Petroccitto says, the extension “provides the additional time that some sectors were asking for to prepare for the changes”.
It wasn’t an unreasonable decision – the imminent changes to COR legislation have seen companies across Australia compelled to develop new plans and sharpen their focus on their safety processes whether directly involved in the supply chain or not.
In a nutshell, the COR changes to the Heavy Vehicle National Law (HVNL) bring it largely into line with the Work Health and Safety legislation that applies in the same jurisdictions – which from October will be all Australian states and territories except the Northern Territory and Western Australia.
The reforms make it clear that every party in the heavy vehicle supply chain – be they operators, loaders or packers, consignors, executive officers or primary producers – has a duty so far as is reasonably practical to ensure the safety of their transport activities.
Further to this, all these parties could be held liable if they fail to fully meet that obligation to eliminate or minimise potential harm or loss – and an accident need not have happened for there to be a prosecution.
Greater Penalties
With that change comes a rise in the potential penalties for companies and individuals who are found to have been lax in their attention to COR compliance management.
From October 1, a corporation found guilty of recklessly engaging in conduct that exposes an individual to the risk of death, serious injury or illness could be fined up to $3 million, or in the case of an individual, $300,000 and up to five years in prison.
A Category 2 offence – for any contravention of the law that exposes an individual or a group to risk of death or injury could carry a $1.5 million fine for corporations or $150,000 for an individual – while a Category 3 offence for any other contravention of duty could result in fines of $500,000 for a corporation and $50,000 for an individual.
But what has sharpened the focus of many in the industry even further is the fact that prosecutions will now be easier to bring under the HVNL.
The changes passed by the Queensland parliament last month, and soon to be enacted nation-wide, provide a broader power to authorised officers – not only police officers – to require the inspection of a heavy vehicle fleet where there is a reasonable belief that the class of vehicles does not comply with the HVNL.
It also allows for additional sanctions, including the issue of a prohibition notice by an authorised officer and the issue of an injunction by a court where there is non-compliance with the HVNL.
But recent changes to the HVNL and other policy shifts will have an impact on the actions companies and their executives must take when the new laws are introduced.
The Sixth Factor – Vehicle Standards
The changes add a new factor to the existing five COR compliance components of mass, dimension, loading, speed and fatigue – this one relating to Vehicle Standards and ensuring that they continue to be met.
Much of the commentary around this point frames the policy as one of vehicle maintenance – saying a preventative vehicle maintenance program is vital to ensure a vehicle is roadworthy.
While the NHVL already has established heavy vehicle standards, extending vehicle maintenance to a COR component means that all parties in the supply chain will have some responsibility in relation to the roadworthiness of vehicles used.
According to fact sheets prepared by the NHVR, the changes to the Heavy Vehicle (Vehicle Standards) National Regulation are “relatively minor, with the majority being made to align new and in-service vehicle safety standards”.
They include changes to warning sign requirements for long vehicles and road trains, for separate rear marking plates when UN standard markings are fitted, distinct markings for hydrogen and electric powered vehicles and changes to condensate drain valve requirements.
Mass, Dimension and Loading
The same principle will extend to the mass, dimension and loading of freight vehicles, with all parties to be responsible for ensuring the freight and its transporting vehicle are within weight limits, as well at the observance of proper packing methods.
Under recent changes to the laws, the sum of all axle groups on such a truck must not exceed the new 46.5 tonne limit, with a trailer tri-axle group limited to 20t, a tandem drive axle group to 16.5t and a twinsteer axle group limited to 11t when fitted with a load-sharing suspension system.
The total axle mass of a tag trailer and dog and pig trailers must also not exceed that of the vehicle towing it.
In addition to this, the NHVR will require all re-useable freight containers to have a Container Weight Declaration (CWD) before being transported on public roads when the new laws kick in – with penalties if the CWD is false or otherwise inaccurate.
While there is no specific form for a CWD, it must include information such as the weight of the container including its contents, a container number, the address of the entity responsible for the container and the date of declaration. It must also be able to be produced in its entirety to an authorised officer when requested – whether that is online or in a written document.
No Need For Speed
The section of the HVNL which deals with speeding was unchanged in the most recent amendments – with the legislation already prescribing duties to heavy vehicle drivers, schedulers, loading managers and consigners/consignees.
That responsibility is to ensure that their activities do not encourage or otherwise cause a driver to exceed the speed limit – imposing a liability on the people who may be responsible for anything that encourages them to do so. This can include asking a driver to deliver a shipment within a timeframe that requires them to speed, or a lack of organisation leading to unplanned delays in picking up or loading the goods to be shipped.
To help ensure that this is not the case in your business, you may wish to review your contracts and other agreements with the groups in your supply chain to make sure that they contain no incentives for speeding.
These may include unreasonable delivery schedules, key performance indicators which could result in the contract being terminated if not met or liquidated damages that apply in the event of freight being delivered late.
Fatigue Laws
Like the speed laws, the HVNL sections relating to fatigue management were unchanged in the most recent amendments – prescribing a duty on employers and prime contractors, schedulers, loading managers, consignors and consignees to ensure they do nothing to encourage a driver to work while fatigued.
But a Queensland-specific amendment passed by that state’s parliament in June could reduce burdens for both defendants and the prosecuting authority in fatigue cases.
A report from the Queensland Parliament’s Transport and Public Works Committee says that previously, if a person had committed multiple fatigue-related offences in different court districts, the defendant must appear in court proceedings in each of the relevant districts.
“This issue is distinct to fatigue offences because the offences are continuing offences with each single journey potentially giving rise to multiple offences, which may be committed in different court jurisdictions,” the report says.
Allowing multiple offences to be held in a single Magistrates Court will reduce unnecessary burdens as well as giving the state a similar approach to other jurisdictions, where courts have a greater discretion to determine the location of proceedings.
Meeting New Obligations
ATN will look into the ways companies can develop policies and contracts to help prevent a breach of the law in our September edition, and will discuss ways of managing the chain of responsibility, as well as changes to relevant industry codes, in October.
Further information about the obligations of various supply chain members and a timetable of future industry information sessions to take place across Australia is available from the NHVR website.