In the current landscape of the trucking industry, the implementation of technology and telematics is not only allowing heavy vehicle operators to keep track of their driving data, but it is allowing them to identify compliance problems and fix them in real-time, which ensures they don’t run afoul of the Heavy Vehicle National Law (HVNL).
That technology runs both ways though. While drivers and fleet owners have access to more tools than ever to ensure they remain aligned with the HVNL, regulators can also use that technology to catch those who find themselves to have fallen into non-compliance.
Non-compliance to the HVNL can have catastrophic consequences on both individuals and businesses. Organisations that fail to meet their safety duty can face penalties of almost $4 million, while executives that fail to meet their duty can be penalised to the tune of up to almost $400,000 and five years jail.
Nathan Cecil, Partner at Australian law firm Holding Redlich, tells ATN the message surrounding the importance of HVNL compliance is reaching executives and fleet operators, however as the technology and methods around managing HVNL compliance improves, so must its implementation.
“Vehicle operators have a primary duty to ensure the safety of their transport operations. That includes driver fitness for duty and managing fatigue and distraction risks,” Cecil says.
“Vehicle operators must manage those risks ‘so far as is reasonably practical’, but what is ‘reasonably practical’ will depend on what the business knows or should reasonably know about such risks and how to deal with them.
“What this means in practice is, as industry knowledge on when and how such risks arise and what methods work best in dealing with such risks improves, businesses are expected to keep on top of this.
“As the standard of knowledge and good practice rises, the practices implemented by businesses must rise as well.
“Businesses have to ensure they stay afloat and don’t sink in terms of good safety practices in this area, and, in addition, executives have an obligation to exercise due diligence to make sure their businesses meet this safety duty.
“I’ve been contacted by businesses across a wide range of industry sectors along the supply chain, and engaged to give their executives awareness and information briefings or to review their chain of responsibility compliance practices.
“That indicates, obviously, the message is getting through, but the executives need to be actively engaged in steering the business through that compliance obligation.”
The advancement of fatigue and distractions technologies (FDDTs) are aiming to keep the sector as safe as possible in the modern world of freight and logistics movement. With these types of telematics, data can be stored and analysed, with changes then implemented to improve the safety and efficiency of operations on multiple levels of an organisation.
This data, however, can also be accessed by regulators and investigators searching for HVNL compliance breaches.
Cecil says companies who implement, use and analyse their FDDTs to the fullest extent possible are mitigating the risk of falling into possible non-compliance.
“Regulators, investigators and the courts don’t want to be told what you do. They want to be shown,” Cecil continues.
“FDDT data is an excellent way to demonstrate your business is proactively identifying and responding to fatigue and distraction risks.
“It is essential that businesses retain the data that is generated by FDDT and how they respond to it.
“Similarly, just because a business isn’t activating all the features of FDDT or is not analysing the data to detect and manage problems doesn’t mean the regulator won’t. It’s important to remember FDDT data may be accessed, analysed and interpreted by regulators.
“If you’ve failed to detect or respond to problems that are evident in the FDDT data, you may have spent money just to create a nice little electronic record that could be used to establish you’ve failed to follow your own safety policies and practices.
“This is slightly unrelated to FDDT as it relates to speed, but I’ve seen instances of companies setting up GPS parameters with too big a margin of error, so a driver is only notified when they’re travelling 10km/h or 15km/h over the speed limit and everything under that is merely recorded in the data bank.
“They have kept the records of overspeeds through GPS, but they haven’t checked those records off themselves. That’s very difficult to do manually, but there are ways with technology where you can be notified of that.
“Then when the regulators ask for your records – and they typically ask for all relevant records for six months – all that information is available for the regulator to be used in an investigation into a prosecution against a business.
“It really is a massive own goal.”
Although the adoption of new technologies in order to keep up with constantly shifting “reasonable” risk management strategies is important, Cecil says there is no need for organisations with strong HVNL compliance practices to constantly be altering their methods.
“There is no mandatory practice you have to adopt,” he says. “There is a rising tide of knowledge of best practice and technology tools that are becoming more known and available, and prices are starting to drop which is making them more financially available.
“It is true that businesses need to keep up to speed with that, and that will include implementing new technologies to some extent, but that doesn’t mean every business needs to adopt every new technology as soon as it comes out.
“What it means is there are things every business needs to give proper consideration to when they’re looking at how they’re going to manage risk.
“If they’re attempting to do it through behavioural controls and trust in their workers as opposed to having in place a reliable system that can monitor people and ensure the right thing is being done, those businesses could find themselves in the crosshairs.
“I think there will come a time where paper-based safety and compliance measures are going to be considered in the light of not keeping up to speed with good industry practice.
“An example of that is when people collect driver work and rest records every month, as opposed to an electronic record which checks it in real time and identifies immediately if someone is working in excess of their hours.
“It’s those sorts of technologies and tools that allow companies to be much more proactive and identify a problem as soon as it arises, rather than being responsive and identifying it a week or a month down the track.”
Potential penalties do not tell the full story of why strong FDDT and non-compliance detection practices are important for fleet owners and operators across the board, though. The improvement of safety for drivers and other road-users is of paramount importance as to why remaining abreast of and compliant to the HVNL matters.
In addition to this, Cecil says, the perspective of safe, responsible and compliant businesses is increasing in importance across the transport industry.
“It is important to remember that FDDTs are resources or tools to help you manage the risks of fatigue and distraction,” he says.
“The starting point is to identify when, where and how these risks arise in your business and how severe the outcomes of such risks arising is likely to be. The next step is to consider how you are going to manage and respond to those risks.
“Once you’ve developed your policies and practices around fatigue and distraction risk management, it’s really important that you implement them consistently. Only following your policies and practices sometimes and not others is a massive own goal.
“It can be seen as evidence that you’ve identified a risk and what you need to do to manage it and have then failed to follow up. So, if you’ve determined that you’re going to respond to certain alerts in a certain way or have drawn up a driver performance management response plan, it’s essential that you follow those steps each and every time.
“Customers and other supply chain partners are increasingly prioritising solid safety performance in their transport operators, including as part of customers managing their own chain of responsibility duties.
“Transport businesses with a poor safety track record can find themselves locked out of work. They’re seen as being too high-risk to deal with.
“The reputational and financial damage that can accompany safety problems can be more severe than the penalties imposed.”
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