Recommended changes to Chain of Responsibility and Executive Officers Liability
- Dec 1, 2015
- 5 min read
The Transport and Infrastructure Council in its Communique of Friday 6th November 2015 has made a number of recommendations which will clearly impact the obligations of a parties affected by Chain of Responsibility and heavy vehicle roadworthiness.
The Council was briefed by the National Transport Commission and the National Heavy Vehicle Regulator on the progress of the Heavy Vehicle Roadworthiness Program and agreed to measures to extensively modernise the current Heavy Vehicle National Law, including the introduction of primary duty of care provisions on operators, prime contractors and employers to ensure the safety of their road transport operations and other measures designed to improve safety outcomes and better target risky behaviour.
The National Transport Commission has provided the Policy Paper entitled Primary Duties for Chain of Responsibility Parties and Executive Officers Liability which details the agreed reforms to the Chain of Responsibility and Executive Officers Liability.
These reforms were agreed to the by the Transport and Infrastructure Council and the National Transport Commission is to prepared draft bills for Ministers to consider in May 2016. It is expected that when agreed in May 2016 it will be implemented as suggested in a 12-month period from the date the amending legislation is passed by the Queensland Parliament as host jurisdiction for the NHVL.
Chain of Responsibility
The Policy Paper contained 8 recommendations dealing with Primary Duty of Care. The intent is to create a more proactive outcomes based approach to CoR by all parties and that enforcement agencies can hold CoR parties accountable without some harm or incident having to occur first.
The General consideration for primary duties then made 10 recommendations which seek to ensure proposed primary duties:
Have clearly defined key terms
Relate directly to road transport operations
Use a standard of care consistent with that for other national safety laws
Are underpinned by principles that guide their implementation
Carry appropriate penalties
Are supported by appropriate investigative and prosecution powers
The introduction of the proposed primary duties will result in the removal of existing CoR offences from the HVNL.
The recommendations specifically include
Widened responsibility for any person who performs any of the functions of any of the chain of responsibility parties
Standard of care is consistent with the standard of care used in other national safety laws.
The failure to discharge the primary duties is an offence with penalties
That the maximum penalty for breach of the primary duties be better aligned to the maximum penalties available under the national safety laws.
The NHVL be amended to strengthen information gathering powers.
The NHVL be amended to enable use of voluntary enforceable undertakings for parties who agree to be bound to take specified steps to ensure compliance with the NHVL.
The NHVL be amended to allow Codes of Practice consistent with s275 of the Model Work and Safety Bill is admissible in proceedings as evidence of whether or not a duty or obligation has been complied with.
The NHVL be amended to align primary duties similar to Model WHS Bill which includes principles of shared responsibility, are complementary to existing OH&S duties with a focus on the safety of rod transport operations, including the safety of vehicles drivers and the public, and that no inconsistency exists but that the OH&S legislation prevails and that no offense can be punished twice if an offense occurs under each piece of legislation.
The primary duties should replace existing CoR offenses, where the subject matter of the offense is covered by the Primary Duties and there is not a clear rationale for retaining the existing offense
That where existing CoR offenses are to remain these be reframed as positive specific duties with the standard of care applicable consistent with the standard of care for the primary duties.
That the s623 deemed compliance be removed from the NHVL as these are incompatible with the positive duty and outcomes-based approach to the management of safety risks.
From the above you may be able to discern recognise changes to Chain of Responsibility and enforcement.
These recommended changes will ratchet up the level of compliance, the widening of persons included in Chain of Responsibility and the increased penalties under the proposed alignment with the Model Work Health and Safety Bill.
It also allows for a business as either a Prime Contractor, Operator or employer to develop a Code of Practice which will be more proactive towards managing risk from the aspects of Supply Chain. This is an expected change as it now lifts the level of responsibility from the lower levels of responsibility to the higher levels of responsibility within a business.
Executive Officers Liability
The National Transport Commission has further embarked upon recommended changes to Executive Officers of the corporation be held accountable under the NHVL, within the boundaries of natural justice and procedural fairness
The National Transport Commission has made 8 recommendations in consideration of Executive Officer Liability. This will need to be a phased approach covering
Due Diligence Obligations
Burden of Proof for retained EOL offenses
Include a new chapter for both Primary Duties and EOL of the NHVL
Guidance Materials be developed
Training be provided for authorised officers, regulators and industry
Establish an implementation period
Extension of Due Diligence obligations as a separate project in 2016/2017
A review of the HNVL investigative and enforcement powers be conducted
The objectives for the EOL review
Improve road safety and encourage a proactive culture of safety and compliance
Retain an effective CoR regime, capable of holding current identified parties accountable for the control and influence they have over the compliance and safety of the transport task
More consistent with the Model Work Health and Safety Act, the Rail Safety National Law and the Marine Safety National Law.
Promotes a greater understanding of obligations and responsibilities and reduces complexities within the current structure
Promotes active enforcement so that obligations are not dependent upon harm incident or injury needing to occur before action can be taken.
Holds executive officers accountable in line with the COAG Principles and Guidelines on Directors Liability.
The recommendations were approved by Ministers at the Transport and Infrastructure Council Meeting on 6 November 2015.
Modal Logistics Pty Ltd is proposing a half day conference in February 2016 to further explain the changes to Chain of Responsibility, Executive Officers Liabilities and Heavy Vehicle Road Worthiness reforms currently being undertaken by the NTC for recommendation mid-2016.
If you could indicate your interest and location, we will look to facilitate these requests.
References
National Transport Commission, November 2015. “Primary Duties for Chain of Responsibility Parties and Executive Officers Liability Policy Paper “
Transport and Infrastructure Council November 2015 “Communiqué”
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