Code of practice makers: the industry response


COR SPECIAL: Chain of Responsibility theory and the master code of practice formulation are high on many agendas, but the practicalities are also crucial

Code of practice makers: the industry response
An overturned cement truck. The HVNL provides legally defensible evidence of what risks parties in the chain should be addressing.

 

The transport and logistics industry had no choice but to respond to a reformed Heavy Vehicle National Law (HVNL). Its answer saw the Australian Logistics Council (ALC) and Australian Trucking Association (ATA) link to formulate a draft Master Industry Code of Practice (master code), with a view to creating a Registered Industry Code of Practice, to be overseen by the National Heavy Vehicle Regulator (NHVR). Such a code demands compliance guidance for industry participants, including on chain of responsibility (COR).

Due for release to coincide with the new HVNL coming into force on October 1, the final master code has graced few eyes apart from those formulating and finishing it. One of those doing just that is Sean Minto, the director and principal consultant of work health and safety consultancy Supply Chain Safety Excellence, who is the technical writer of the code.

Minto gave attendees at the recent Supply Chain Safety and Compliance Summit, jointly held by ALC and ATA, a taste of what it means operationally.

WHAT IT IS AND ISN’T

"Picking up the code and reading it isn’t enough to say you’ve adopted it – you’ve actually got to implement it and put it into practice, and demonstrate that you’re using it," Minto says. "It’s basically a guide on the risk assessment process. There’s a chapter in the code that talks about how to undertake a risk assessment and there is a work example.

"If you’ve already got your own risk assessment process in your business – lots of large organisations do, obviously – you can simply use that to get the same outcome. If you don’t, there are some simple tools you can use and it also references tools that

have been published by the National Heavy Vehicle Regulator."

The draft has an itemisation of the common risks in the industry, particularly around the five core COR obligations: speed; fatigue; mass; dimension and loading; and vehicle standards. There is a list of suggested controls that can be put into practice, though they are not mandatory, and firms and managers may develop their own. There is also guidance on how to implement a tailored risk assessment process and to select controls as part of that process.

As the ATA has already advised, the HVNL provides that a court can look at a code to determine the general standard of industry knowledge on hazard and risk identification and control, and what is reasonably practicable in the circumstances to avoid or minimise those risks. This means it provides legally defensible evidence of what risks parties in the chain should be addressing and the range of suitable ways to deal with them.

For Minto, this is a crucial aspect. "If you’re putting your mind to managing the risk, to thinking about the risk, adopting the suggested controls or developing controls demonstrates that you are trying to do the right thing," he says. "What the master code isn’t is an out-of-the-box risk assessment. You can’t just pick it up, read it and say: ‘Yep, I’m complying, I’m following it, I’m doing it.’

"You’ve got to look at the particular risks that might occur in your business or your transport activities. It’s not a ready to go compliance system.  It doesn’t address every compliance system in the HVNL, so you can’t use it for that affect."

"And it’s not a definitive list. There are suggested controls, but they’re not the only controls; it’s not the only way to do it. Put your mind to it and think: are there other risks, other controls you can use to get a better outcome for your organisation or business?"

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AUDITING

Those approaching the task might be tempted to flip a coin on where to start, but Minto is adamant that assessing risk is the horse that precedes the audit cart.

 "In my mind, unless you assess risk, you’re going to fall at the first hurdle of an audit," he says. "Any decent audit should be asking you: ‘Have you assessed the risk?’ A lot of companies may be controlling risks, but not really appreciating that they are already doing it."

He gives the example of a recent pre-harvest growers’ forum in South Australia, where he was speaking to a grower that happened to operate a couple of B-doubles and a tri-axle. With a six-hour return trip from his property, he realised he couldn’t do the two trips in a day, taking into account any potential delays or other unexpected occurrences. To managing fatigue risk, his outfit was doing one trip a day. If they did need to do a second trip, they contracted that out so they weren’t putting themselves or others at risk.

"Another example he gave me was, during the harvest when things were flat out, rather than doing it all himself, he and his wife shared the driving – he was doing the driving, his wife was doing the driving, other farm workers did the driving," Minto says.

"So they were managing the risk of fatigue, they just hadn’t formalised that. That’s as simple as it needs to be."

The HVNL being brought into line with the health and safety law introduces the concept of ‘so far as reasonably practicable’. As soon as managers are aware of a risk, no matter how fancy some may go about ranking it or assessing it, they must control or eliminate or minimise that risk.

The law also is a positive duty, which means there is no option of turning a blind eye to or trying to ignore any risk, let alone allowing the belief to exist that there is an easy way out. "From being a positive proactive duty, you will be prosecuted or proceeded against if you don’t put your mind to it; if you just plead ignorance, which you just can’t do, obviously," Minto notes.

"One thing I’ve learnt from writing the code, and this includes myself, there are a lot of bush lawyers out there. If you want a better legal interpretation, you’d better speak to a lawyer."

RISK ASSESSMENT

In his consultancy, Minto has been taking clients through the brass-tack basics of what their transport activities actually are. The exercise aims to establish the context for their risk assessment: what goods; what passengers; what type of vehicles; where are they going to and from; and how often.

"[We are] building a story around what the modular transport activities are, or your role within that transport activity, be it a consignor or consignee, the actual operator, a scheduler for example," he says.

"Within those activities there are going to be multiple roles and multiple parties, so it’s looking at how you can control and influence that activity, and what capacity you have to control and influence that activity.

"Once you done that, you can create what I call a ‘transport control register’. You can write it down on a piece of paper and it can be added to a spreadsheet, or it might be something more sophisticated. I’ve worked with clients who use SharePoint – an electronic Web tool – and there are activity registers in there."

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HAZARDS

Now that such clients have a clear understanding of what they are doing, the next step is to identify the hazards associated with that task – what could cause harm or loss? How could someone get hurt, or how could the business incur a loss through compliance, as with fines and prosecution costs?

A hazard could be anything that arises from business practices or activities. For example, setting unrealistic schedules or delivery windows could create a hazard, encouraging behaviours like speeding or driving impaired by fatigue to meet a deadline, or situations like a poorly restrained load, loading or unloading delays or traffic congestion, and physical objects such as a heavy vehicle with defective brakes or worn lashings.

"Also the management practices of the business," Minto adds. "Things like not providing training to employees could create a hazard if they don’t know what they are doing."

In each chapter of the code that deals with the core obligations – speed, fatigue, mass, dimension and loading, and vehicle standards – there is a list of contributing factors that could give rise to hazards. "What I’ve been doing with clients is, once we look at the hazard we work through this list, just to make sure – to prompt ourselves – is there anything else that could be contributing to this hazard and this risk occurring … and what existing controls do you have to prevent that from occurring?" Minto points out.

"The obvious person at risk is the driver, but there are others, such as passengers, other road users, or pedestrians that are interacting with heavy vehicles. Damage may occur to the heavy vehicle itself or the load, other vehicles, buildings, or road infrastructure – tunnels, bridges, barriers. Damage to the environment can also come into play in a heavy vehicle incident."

Each of the core obligations have master code chapters that start by identifying what the risk types prevalent in the trucking industry are, though users should be aware that not all risks are necessarily attached to their individual business profile.

HIERARCHY OF CONTROL

Control options can be worked through to define the best solution to the apparent risk, or allow a better option to be uncovered. "When you implement a control, it is likely it will need supporting measures to help imbed it. Things like procedures, training, supervision and inspections," he says. "In terms of procedure, for example, you may have a load-restraint procedure, but the actual activity of restraining the load – how many lashings you may need – that’s the control; the procedure just describes it and educates people in that control."

Minto knows of companies that are aware that fatigue is at its most dangerous between midnight and 6am, when humans normally sleep, and refuse to drive between those times.

He admits that this may not be an option available to certain firms, but it is an example of a control.

Others use driver-focused fatigue recognition technology. Ron Finemore, head of the firm that bears his name, made a presentation to the summit on his company’s use of Seeing Machines’ technology and showed video of how it works to alert drivers.

Administrative controls, which are down the list, might be to call drivers regularly to check on their welfare and whether a rest period may be in order. Personal protective equipment (PPE), such as seat belts and airbags in cabs, also count as a control.

REVIEW

Minto, and doubtless the master code itself, advises active investigation by managers of control performance, including talking to those employees who are using them, to gauge the state of their implementation and effectiveness.

Review and analysis can involve GPS data for verification with key performance indicators. "For every control you have put in place, you should be able to link that to some sort of performance measure to demonstrate that that control is effective," he says.

Documentation of steps taken should occur "in a risk register or a template or a hazard form … and the code suggest where you can go to source that information, with the NHVR and Safe Work Australia good places to start," he adds. "The code has an example of a suggested control that says ‘service periods may need to vary, based on the operating conditions of the vehicle and may need to be more frequent than the manufacturer’s recommendations’.

"For example, vehicles operating on unsealed roads, regularly transporting over-size over-mass loads, exposure to harsh environments – it could be livestock transport, effluent, working in the logging industry in those conditions. In writing the code, we actually got information from the regulator around the logging industry that this was a real risk and this is how they manage it as well."

One firm Minto works with has service regimes in their administrative controls based on usage types. One relates to trucks used around mines; another covers those for urban tasks. Monitoring can involve fault reporting and maintenance and repair costs based on those usage types as indicators of whether the control is working as expected.

"Whilst we have looked at that transport activity and I have focused on vehicle standards, what I’ve been doing with clients is: once we’ve described the transport activity – normally they don’t just have one, they have many – basically just work through the core obligations."

DEBATE

Given it is a central ALC and ATA project and a major policy document of the past year, one that the broader transport and logistics industry can present to government as serious proof of its commitment to safety, it was always going to engender summit debate. 

How the theory of a registered code of industry practice can be made to have an effect in the real world was at the centre of early discussion that took place before Minto’s presentation. Concern was also expressed at the likelihood of duplication as well as "box-ticking" the master code might engender, along with what change it might actually achieve.

South Australian Road Transport Association (SARTA) president and Whiteline Transport director Sharon Middleton, and small rural trucking firm owner  John Beer, both point to a disconnect between initiatives pushed at the most senior levels and what happens at the interface between transport and customers.

Middleton identifies the unreal expectations customers have of the value of the trip plans they demand of operators, given how a task may be allocated to other parties. Beer expressed a hope for the master code’s success, but had significant doubts given its lack of sanction related to facilities. "Who is the off-road policeman?" he asked.

John West Logistics managing director John West states that the master code is being designed to be of use to small- and medium-sized operators as much as larger ones, but insists all must play an active part in making it an effective document. He observes that present COR reforms and the master code were making themselves felt beyond transport: "I’ve never had so much response from the customer base," he says, with that side asking: "How do we do this?"

"It’s a great document," he adds.

Panellists from firms such as Origin, Coates Hire, and CSR speak of awareness among senior managers and at board level in firms that take the risks seriously. They speak of board members appearing at facilities unannounced and safety committee members holding meetings on ship floors.

Ron Finemore of Ron Finemore Transport says he is "heartened" to hear that, as it shows COR "is being taken seriously," though it has "taken a bloody long time." That said, he earlier made plain the transport industry still has huge issues with bringing up safety issues with customers.

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Supply Chain Safety and Compliance Summit Communique

The major issues and areas for further action identified are:

• End-to-end supply chain collaboration on safety is crucial. More needs to be done to demonstrate that an effective approach to managing safety risks not only delivers better safety outcomes, but greater efficiencies for operators and for customers

• The master code is relevant to all parts of the industry, including smaller operators. ALC and the ATA should continue working to demonstrate how the master code embodies a practical approach to the management of safety risks, which will help demystify many of these issues for smaller operators

• Increasing duplication throughout the auditing system for heavy vehicles is having a detrimental impact and must be addressed. Industry, customers, and the wider community will be better served by a system that is less focussed on ‘box ticking’, and instead does more to embrace the practical, real-world experience of drivers in managing safety risks

• Jurisdictional inconsistencies in the enforcement of COR and the HVNL remain a significant frustration. Leading industry bodies such as ALC and ATA should lead efforts to ensure compliance authorities understand how consignors and consignees are managing risks – and ensure those efforts are being recognised when it comes to enforcement

• Executive-level recognition of the importance of COR will drive better safety. When a company’s leadership shows they ‘get it’, it drives cultural change throughout an organisation. ALC and ATA can play a role in helping executives understand that demonstrating compliance with their safety obligations is not merely a legal requirement, but offers tangible business benefits

• Statistics on heavy vehicle safety need to be presented more effectively. The tendency to assume that the heavy vehicle is at fault in every incident has a bearing on the industry’s social licence. Industry should work with authorities to ensure that the statistics present a more accurate picture, and develop strategies to ensure passenger vehicles share the road with heavy vehicles more safely

• There needs to be far more honest conversations about mental health in the industry. Driving is a solitary activity that necessitates a lot of time away from homes and families. Industry organisations need to work collaboratively on initiatives that remove the stigma around talking about mental health challenges. Developing programs that equip the industry’s workforce with tools needed to deal with mental health issues effectively must be a top priority

• Improving technology should be embraced by all in the effort to save lives on our roads. This includes promoting much greater uptake of telematics, in-vehicle cameras, and the development of consistent data standards that will promote enhanced safety right though the supply chain, assist with business management, and promote better infrastructure investment (including rest stops).

 

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