Under the Heavy Vehicle National Law and, every party in the ‘heavy vehicle’ supply chain is responsible and may be held liable under the Chain of Responsibility (CoR). The governing principle is that all parties in the Chain are responsible for any breach if they did or could have exercised any control or influence to prevent the breach from occurring.
The forthcoming legislative updates will strengthen the requirements from within a revised framework very similar to that prescribed by the WHS Legislative framework.
Of particular note:
- The standard of legal duty is changing – Organisations were previously responsible for avoiding a negative outcome, whereas the new standard will require all parties in the Chain to take “all reasonably practicable steps to ensure the safety of their transport activities”. It is forward-looking, rather than incident-based (currently a business can only be prosecuted where a breach of a CoR component occurs). This means that businesses could be prosecuted for failing to put in place CoR control structures and practices, even if a CoR accident/incident has not arisen.
- Penalties are increasing – Penalties will now align with those under existing WHS law, in order to ensure that businesses and their Executives give greater attention to CoR compliance management. Under this legislation, $1million fines have already been imposed. (For example, the consignor firm, Remondis Australia, was fined $732,206 and paid legal costs for allowing overloaded vehicles of contracted trucking firm Jet Group Australia to carry its mulch between September 2013 and October 2014.)
- Executive liability is changing – Currently, a member of the Executive can only be prosecuted where a breach of a CoR component is committed by their business. The current test is whether an Executive exercised “reasonable diligence” to prevent that breach from occurring. The new standard will require Executives to exercise “due diligence” to ensure that their businesses comply with all duties under the CoR. This means that Executives could be prosecuted for failing to put in place CoR control structures and practices, even if a CoR accident/incident has not arisen.
The National Heavy Vehicle Regulator is recommending that once you have determined where your organisation sits in the supply chain, and therefore what CoR responsibilities you should be addressing, one of the best ways to achieve compliance is to embed CoR into your current safety management systems, as many aspects of existing safety management systems can be adapted as part of your CoR management.
For example, existing WHS risk assessments, safe work procedures, training needs analyses, incident registers and compliance reporting frameworks can be equally applied, or applied with minor adaptions, to CoR management.
The CoR and WHS management systems could be integrated, or at least run in parallel to streamline the way that businesses deal with CoR management.
It is important to note that under the CoR legislation, you have a greater responsibility for the conduct of other parties within the Chain and a responsibility for the conduct of persons off-site. CoR responsibility is not site-based or worker-based, it is supply chain-based, and based on the parties in that supply chain.
Please contact QRMC for more information or for assistance to review your CoR control structures and practices.