Doing your duty by COR changes

By: Andrew Hobbs

In the second of our three-part series, we look at how companies can develop policies and contracts to help ensure their obligations are met

Doing your duty by COR changes
COR reforms mean the burden of knowing of and acting on safety risks will be heavier for managers and executives


In the August edition of ATN, we looked at changes to the Heavy Vehicle National Law (HVNL) set to come into effect later this year – requiring risks to be managed in a way similar to Australia’s work, health and safety laws.

As a part of these changes, authorised officers from state transport authorities in New South Wales, Victoria, Queensland, South Australia, Tasmania and the Australian Capital Territory will have additional powers to inspect vehicles for breaches from October 1.

Check out the August article online here

National Heavy Vehicle Regulator (NHVR) chain of responsibility manger Kym Farquharson-Jones told ATN that inspectors will be able to examine system features such as fault reporting and correction, maintenance programs, schedules and documentation and collaboration in supply chain reporting.

"It should be noted that these additional information-gathering powers will be confined to information that is relevant to safety duties offences," Farquharson-Jones says. "The changes to Chain of Responsibility place positive safety duties on parties in the chain, which will require additional resources to gather evidence, including from third parties that have relevant information."

At the centre of these HVNL changes is a new primary duty of responsibility – requiring that each party in the chain of responsibility for a heavy vehicle must ensure, so far as is reasonably practicable, the safety of their transport activities relating to the vehicle. This is to be done by both eliminating and minimising public risks and working to ensure nothing is done to encourage reckless behaviour or a breach of the HVNL – such as speeding, driving an overweight vehicle or driving while tired.

Broad Reach

These safety responsibilities extend to every party in the supply chain – from the vehicle driver and their employer to the vehicle scheduler, consignors or consignees, packers, loading managers and loaders and unloaders.

The HVNL has also introduced new responsibilities for executive officers, which it defines as people involved in the management of an organisation – those who have authority over the direction of a company and its finances. These can include executive directors and officers of a corporation, partners in a partnership or management of an unincorporated body.

With equivalent duties to those of an ‘officer’ under WHS laws, under the HVNL executive officers must proactively exercise due diligence to ensure their business complies with the duty of responsibility.

This entails not only knowing how to conduct transport activities safely, and keeping up to date knowledge about safe practices, but also making sure that resources and processes to eliminate or minimise risks are in place and readily available. Most importantly, executive officers must do this themselves – it is not a responsibility that can be delegated to an employee.

So how can executive officers make sure that what they have in place will make the grade?

Policies and Procedures

Because each business has different needs, executive officers should carry out a tailored risk assessment of their company to ensure that their policies, procedures, training programs and contracting and business practices are effective.

Whether someone has met the ‘reasonably practical’ standard will depend on what they know, or reasonably should know, about risks to safety or damage to road infrastructure that their vehicles may be responsible for, according to documents prepared by the National Road Transport Association (NatRoad).

A formal risk assessment involves identifying potential hazards, determining how likely it is that injury or damage will occur, and then determining how serious that damage might be. For example, an assessment will consider whether the cost of risk prevention or avoidance is proportionate to its likelihood, or to the likely harm resulting from an accident.

Remember that we are not only looking at immediate hazards to health and safety, but also at the hazard of breaching maintenance, mass, dimension and loading requirements, as well as inciting drivers to work while fatigued or to speed.

When considering the likelihood of an incident occurring, you should consider how many people are exposed to the hazard, how often and how long for, and whether there are any factors that may increase the risk.

Once you have identified the risk and the potential seriousness of that risk, you can look at ways to control that risk – which might entail eliminating it completely or trying to minimise it where this is not possible.

You might find a way to substitute the hazard with something else, to isolate it from people or to develop engineering or administrative controls, such as work methods and procedures, designed to minimise exposure to the hazard.

The Right Questions

NatRoad suggests executive officers ask themselves how well they understand their business operations and the associated hazards and how they keep up to date with their safety knowledge.

Are your existing control measures adequate – are they up to date? Or is there something new that might be a better solution that you haven’t yet considered?

Once completed, this risk assessment can help you develop your COR compliance policies and safe working procedures.

As with every business policy, your COR policy should:

  • Set out clearly what you expect of each party in the supply chain – explaining the different roles and responsibilities of each in a way they understand
  • Define any terms that are used throughout the policy
  • Detail the consequences of a breach of the policy
  • Be readily accessible by everyone who is party to it – in case they need a reminder.

It is also important that the policy be regularly reviewed with consideration to any recent incidents or near misses – including findings during vehicle maintenance inspections and other examples of non-compliance.

Post-incident records should collect information about the time, location and nature of the incident, the freight involved, including placards, labels or manifest details and the weather conditions and terrain. These incidents should be identified, reported and responded to, and that response recorded so it can be used to further improve company policies and procedures. NatRoad suggests keeping these records for three years at least.

Executive officers should also encourage employees, contractors and other members of the supply chain to suggest improvements to business and safety practices – as well as sometimes actively seeking their input. Ongoing toolbox talks can also help to uncover new ways of addressing any of the plan’s shortcomings.

Consideration for Subcontractors

These measures should not be limited only to your employees, with subcontractors and other parties in your supply chain also having a major role to play. After all, a COR compliance policy will be ineffective if the solutions it recommends have not been communicated throughout its supply chain to customers, staff and subcontractors.

In addition, it is within an executive officer’s duty of responsibility to know how subcontractors perform their duties while working for the officer’s company. For this reason, it is important to have COR compliance clauses within your supply chain contracts and other agreements, requiring that any third party comply with the specific requirements of your business.

This may extend to requiring that they hold certain licences or accreditations, that they pass drug and alcohol tests, or that they notify you if one of their workers receives a legal penalty, such as a speeding fine, while working for you.

You may also wish to consider whether you expect the subcontractors to meet any key performance indicators with regards to safety – such as offering inductions for drivers – and what you agree subcontractors should do if they consider that your requests pose a risk to them.

You should also ensure that your subcontracting arrangements do not have any provisions that could provide your subcontractors with an incentive to breach the HVNL – such as unreasonable KPIs or delivery times. The consequences of a breach should also be outlined.

Tackling Risks

According to NatRoad, both parties should outline what they know about the potential hazards and risks involved and whether they require any extra information from the other party. If requested, this information should be provided readily – with the aim of helping the safety measures introduced by each party be co-ordinated effectively, such as allowing sufficient time for rest stops.

It may be best to provide your subcontractors with a copy of your COR policies and working procedures while negotiating with them to facilitate a frank discussion about safety and ensure that you are both on the same page.

It is never safe to assume that someone else is taking care of a safety issue – an executive officer should always check and confirm what others are doing and ensure that any contracts clearly specify who is responsible for what.

You might also wish to include a requirement for this consultation and co-operation in your contracts – a move which will make the other party clearly aware of the obligation and give you a contractual right to enforce it.

In its October edition, ATN will look at the executive reporting and compliance monitoring systems companies can introduce to help ensure that all parties in the supply chain are on track – plus we will look at how new industry codes can help set a standard for you and your supply chain to meet.

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