Opinion: when you're in breach of mass limits
Here are a few tips on keeping your business safe from mass breach fines
There are a few areas of the Heavy Vehicle National Law that should be on the radar of every operator. They are the laws that carry the biggest fines, are most enforced, and seem to make up the bulk of matters going to court. For transport businesses these are the laws that represent the largest risk.
The mass limit laws are one of these highly policed provisions. They are also one of the areas where I see good operators come unstuck, often through no fault of their own.
When a mass overload is detected in New South Wales, the default position is to charge the operator. The idea is that business owners are more likely to implement compliance policies and run their business carefully if the punishments are aimed at them. There’s good logic behind the policy.
Unfortunately though, even with the best policies in place it’s not always easy for operators to control what happens in the loading environment. Sadly, these mistakes can cost businesses tens of thousands of dollars in fines.
As an operator, there are steps that you can take to prevent yourself from falling foul of the mass overload laws.
Know the laws
It goes without saying that anyone operating a heavy vehicle needs to know their gross and axle mass limits if they want comply with them.
But, knowing the law can also help minimise the damage if something does go wrong.
The Heavy Vehicle National Law provides a defence for operators who despite their best efforts find themselves in breach of the mass limits. The laws says that an operator must not permit someone to drive an overloaded truck "unless the person has a reasonable excuse."
What constitutes a reasonable excuse will be different in every case. It depends on what caused the breach and what could have been done to prevent it.
The starting point for establishing a ‘reasonable excuse’ defence is having taken steps to identify risks and implementing policies to prevent them.
This is why it’s also important that your employees are aware of the laws too. Usually they are the people on the ground who have the most immediate control over avoiding breaches that occur at the loading site.
Not only are educated employees more likely to prevent a breach, but if a breach does occur the authorities will usually ask the driver whether they are aware of the mass limits. You will have a better chance of establishing a ‘reasonable excuse’ for the breach if you can demonstrate that you have educated your staff.
Risk area awareness
Identifying where problems are most likely to arise is the first step in implementing effective policies and procedures, and in turn of giving yourself the best chance of establishing a ‘reasonable excuse’ if things do go wrong.
Most of the cases I see at court are the result of a few common issues:
Axle breaches are often caused by incorrectly placed loads. Even where a vehicle is well under its gross weight, a slightly misplaced load can result in a significant axle overload
Third parties aren’t always reliable. Even the best plans can be ruined when the container you collect is heavier than advised or the third party loader positions the load incorrectly
Unexpected situations arise, for example mechanical issues mean finding a replacement trailer at short notice
Employed drivers sometimes don’t follow the business’ policies.
I recommend that all of my clients spend time thinking about where things could go wrong in each step of their business, from accepting a job, to loading and delivery. Once they have identified their risk areas, they can think about what they can do to minimise or reduce them.
Document your policies
One of the biggest mistakes businesses make is not writing down their policies. Most workplaces have good procedures in place, but many don’t formalise them.
I completely understand this; most of us hate extra paperwork! But, should you find yourself charged with a mass overload breach then your documentation will become your strongest asset.
Written policies and procedures are the evidence of the steps you took to identify risks and prevent breaches. Without having these things in writing it is much harder to show that you have done this, and in turn demonstrate a ‘reasonable excuse’ for the offence. At the very least having this documentation will usually result in a much lower fine even if you can’t defend the charge entirely.
Your written policies and procedures don’t have to be too complicated. The important thing is that they give clear directions about how people in the business will approach tasks and what they need to do to ensure compliance with the law. There are many CoR compliance businesses who can help with this process.
Once you’ve prepared your documents, it’s a good idea to have each member of staff read and sign them to confirm they understand and agree to follow the policies.
Hopefully you will never find yourself in court for a mass breach, but taking these three steps will put you in the best position if you ever do.
Sarah Marinovic is a principal solicitor at Ainsley Law – a firm dedicated to traffic and heavy vehicle law. She has focused on this expertise for over a decade, having started her career prosecuting for the RMS, and then using that experience as a defence lawyer helping professional drivers and truck owners. For more information email her at firstname.lastname@example.org or phone 0416 224 601