Are you aware of the planned changes coming to Chain of Responsibility?

The next Transport and Infrastructure Council meeting planned for November 2015 will consider two key recommendations.

National Heavy Vehicle Legislation and Work Health and Safety Act

Chain of Responsibility Taskforce will present a final report to Transport Ministers in November 2015 to consider marrying chain of responsibility provisions under the National Heavy Vehicle Law (NHVL) with Work Health and Safety law (WHS). Transport ministers have given in principle support to reform CoR laws to mirror a WHS approach.

The current NHVL penalties are considerably lower than other safety based legislation, and the need is to move to WHS laws which are performance based rather than the current NHVL laws which are prescriptive based.

The impact would mean penalties changing from the current maximum court imposed fine under NHVL of $20,000 to the current WHS penalty maximum of $600,000 and five years in prison.

NTC CEO Paul Retter states “The intention of these reforms is not to extend the scope of duties of but to restructure and consolidate existing obligations to ensure current parties in the chain of responsibility take a performance based approach to their responsibilities.”

Currently there is significant risk to road safety because the current law does not encourage COR parties to proactively identify and prevent risks and it does not provide sufficient deterrent because the penalties are not provided for. “It’s the carrier’s problem”

Under the proposed changes Consignors, consignees, schedulers, loading managers, loaders and packers and unloaders will become increasingly liable for inducing drivers to push fatigue or speed or mass. Each of these employees will need to have role specific duties to ensure safety is tailored to their role and responsibilities to replace existing CoR requirements.

The current WHS Act splits penalties into three categories, dependent on the severity of the offense:

1. The maximum fine for an individual, such as an employee in the highest category is $300,000 and /or five years in jail

2. The maximum fine for an individual running a business, such as a contractor or owner driver is $600,000 and or five years in jail.

3. The maximum fine even at the lowest offence category is significantly higher than current NHVL penalties ranging from $100,000 for someone running a business to an individual fine of $50,000.

Body corporates can be fined from $500,000 in the lowest category up to $3,000,000 in the highest category.

There will be no decision on penalties until the structure of primary duties for individuals and corporations is finalised.

Should the Transport and Infrastructure Council meeting approve these changes it will require changes to the current NHVL be drafted by May 2016 with amendments to be in place by late 2016 or 2017.

Chain of Responsibility and Maintenance

The second key change being considered by the Transport and Infrastructure Council in November 2015 will be the inclusion of maintenance in the Chain of Responsibility. This matter of maintenance was considered by the Council in May 2015 and it agreed to bring forward consideration of a package of measures to expedite national consistency and compliance improvements for decision in November 2015. The package will include measures regarding chain of responsibility duties for vehicle maintenance and scheduled inspections with the intention of implementing improvements as soon as possible.

Most companies will ensure that their fleets are maintained to a minimum manufacturer’s standard, but this proposed change in legislation will make senior management liable to make sure they do meet this standard. It will also be added responsibility for a Consignor, Consignee, Loading Manager, Scheduler, Loader and unloader to ensure the contract carriers is maintaining the fleet that provides transport services to its business. There will be need for systems and processes to be adopted to establish a reasonable steps defence to confirm this is taking place.

There will also be a requirement to confirm that the equipment chosen for the task is fit for the task. An obligation on the consignor to make clear to the carrier what the load mass is, the dimensions and the load restraint requirements for each consignment and to ensure the carrier has the required equipment to perform the task.

All NHVAS Auditors will be required to have developed Technical Competencies by mid-2016

“Section 14.2 of the Business Rules requires auditors of maintenance and mass management systems to have sufficient technical knowledge to understand records and to conduct technically competent interviews or have a formal arrangement so they can draw upon another person's technical competencies.”

In the light of a litany of heavy vehicle incidents resulting from poor maintenance it is seen as an ever increasing responsibility in the transport industry to ensure compliance to heavy vehicle maintenance and for that responsibility to be shared across the supply chain.

These changes in increased penalties under CoR being aligned to WHS, and the provision of maintenance as a part of CoR will impact heavily on each part of the transport supply chain from individuals to corporations. In order to determine how your current systems and procedures measure up consider a compliance audit on your business which covers all the existing legislation from WHS to NHVL and many other legislative requirements. Don’t wait to get found out, do an internal compliance audit, identify the gaps and develop a corrective action plan to address the gaps. While having processes and systems are important it is also important to demonstrate employee awareness and have adequate training included in the training register to show due diligence in these critical matters.

Modal Logistics can provide compliance auditing, gap analysis measures, corrective action plans and training packages to help your employees, contractor and customers. Kerry Renkema is an approved NHVR Auditor, and a safety specialist with audit qualifications in WHS, OHS and Quality Management.

For a confidential discussion call Kerry Renkema on 0417 220 712 to discuss your situation.