Managers face COR risk of other companies say lawyers

By: Rob McKay


CBP’s Thompson and Peake warn dangers arise up and down the chain

Managers face COR risk of other companies say lawyers
Stephen Thompson sees the amendments a reformulation rather than adding new burdens

 

Transport and logistics executives and their customer counterparts must fend off chain of responsibility (COR) risk burdens – both within their companies and without – as reforms loom.

The extension of risk and responsibility beyond its traditional position within a company or operation come into focus following recent general advice to executives and managers from two transport lawyers.

In the commentary piece, ‘What do amendments to Chain of Responsibility legislation mean for supply chain participants?’, Colin Biggers & Paisley (CBP) Lawyers partner Stephen Thompson and solicitor Julian Peake examine the tightened rules due to come into force at the middle of next year.

"Supply 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’," they say.

Some of the moves that can be brought to bear include:

  • employee training
  • creation and implementation of management plans
  • amendment of policies and procedures
  • review of key commercial agreements. 

The wide net that the strengthened Heavy Vehicle National Law (HVNL) rules – which had come under much criticism in the industry due to a perceived lack of force in chain links beyond transport companies – has been a common thread of recent commentary, not least from the National Heavy Vehicle Regulator (NHVR).

The CBP lawyers note that, 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.

Thompson and Peake note that, 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. 

But there is a shield of sorts for exposed company decision-makers.

"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," the lawyers say.

"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."

Thompson advises transport and logistics facility owning firms to go through risk management and due diligence processes internally but externally also make it plain to those that they deal with that they take COR seriously and will take active measure if they believe their own safety regimes are being compromised.

"It looks a bit intimidating when you first see it but if you break it down into steps it’s what most legitimate businesses are doing, by and large," he tells ATN.

Thompson believes if diligent managers make plain their analysis of safety shortfalls in an enterprise and fail to "get traction" from those who direct them, "then they really need to consider their position" because they are amongst the most exposed by design.

That said, he believes it would be a mistake "too anxious" as far as the latest amendments are concerned, given the bulk of the COR burden has come in the past 12 years.

"It’s really [just] reformulating the standards to be more compliant with that general run of workplace safety," he says.

"It mirrors what has been done in the rail space in terms of language and structure and the whole approach of articulating what the standards are."

You can also follow our updates by joining our LinkedIn group or liking us on Facebook