With a number of recent chain of responsibility (CoR) convictions under the Heavy Vehicle National Law (HVNL), McInnes Wilson Lawyers associate Nick Wilson has published a guide that details what operators and schedulers need to be aware of.
“All parties in the chain of responsibility must take proactive steps to discharge their duties and obligations under the HVNL to not expose individuals to a risk of death or serious injury or illness,” he said.
“Importantly, it is not necessary for an accident or incident to have occurred for a prosecution to be brought against a company or individual.”
He uses a recent conviction against a New South Wales transport company and two schedulers as a case in point.
The company itself, along with two schedulers were collectively fined $210,000 for failing to comply with their obligations under the HVNL as parties in the chain of responsibility.
A Brisbane company was also fined $1.2 million recently for contravening its primary safety duty under the Heavy Vehicle National Law (see page 2).
Wilson explains that HVNL currently applies in all Australian states and territories except Western Australia and the Northern Territory. The law covers the use and operation of heavy vehicles with a gross vehicle mass or aggregate trailer mass of over 4.5 tonnes.
He shared the following:
What is the chain of responsibility?
Under section 26C of the HVNL, the safety of transport activities involving heavy vehicles is the shared responsibility of each party in the chain of responsibility. These laws are designed to prevent driver fatigue, overloading, speeding, and other safety risks inherent with the operation of heavy vehicles.
While each party within the chain of responsibility has a primary duty to ensure the safety of their transport activities relating to the vehicle, the level and nature of each party’s obligations depend upon:
• the functions the person performs or is required to perform as opposed to their job title or the functions described in their employment contract;
• the nature of the public risk created by the carrying out of the transport activity; and
• the party’s capacity to control, eliminate or minimise the risk.
If a person in the chain of responsibility fails to comply with the duty, then that person can be found guilty of an offence. Whether the conduct constitutes a Category 1 (section 26F), Category 2 (section 26G), or Category 3 (section 26H) offence depends on the nature of the offending.
Critically, a person or company can be prosecuted for contravening their primary duty before an accident or incident has even occurred. That is because each party within the chain of responsibility has a proactive obligation under the HVNL to eliminate and mitigate public risks so far as is reasonably practicable.
Who is a party in the chain of responsibility?
A person performing any of the following functions will be a party in the chain of responsibility for a heavy vehicle:
• Employer: If the vehicle’s driver is an employed driver, the employer of the driver.
• Prime Contractor: If the vehicle’s driver is self-employed, the person who engages the driver to drive the vehicle under a contract for services.
• Operator: A person responsible for controlling or directing the use of the vehicle.
• Scheduler: A person who schedules the transport of goods or passengers by the vehicle; or the work time and rest time of the vehicle’s driver.
• Consignor: A person is a consignor of goods, for road transport using a heavy vehicle, if:
o the person has consented to being, and is, named or otherwise identified as a consignor of goods in the transport documentation relating to the road transport of the goods; or
o the person engages an operator of the vehicle, either directly or indirectly or through an agent or other intermediary, to transport the goods by road; or
o if neither of the above apply – the person has possession of, or control over, the goods immediately before the goods are transported by road.
• Consignee: A person is a consignee of goods if they:
o consent to being, and is, named or otherwise identified as the intended consignee of the goods in the transport documentation relating to the road transport of the goods; or
o actually receive the goods after completion of their road transport.
o However, a consignee does not include a person who merely unloads the goods.
• Packer: A person is a packer of goods if they:
o put the goods in packaging, even if that packaging is already on a vehicle; or
o assemble the goods as packaged goods in an outer packaging, even if that packaging is already on a vehicle; or
o supervise an activity mentioned above; or
o manage or control an activity mentioned above
• Loading manager: A person is a loading manager for goods in a heavy vehicle if they:
o manage, or are responsible for the operation of, regular loading or unloading premises for heavy vehicles where the goods are loaded onto the heavy vehicle, or unloaded from the heavy vehicle; or
o are assigned by a person mentioned above as responsible for supervising, managing or controlling, directly or indirectly, activities carried out by a loader or unloader of goods at regular loading or unloading premises for heavy vehicles.
• Loader: A person is a loader of goods in a heavy vehicle if they;
o load the vehicle, or any container that is in or part of the vehicle, with the goods for road transport; or
o load the vehicle with a freight container, whether or not it contains goods, for road transport.
• Unloader: A person is an unloader of goods in a heavy vehicle if they:
o unload from the vehicle, or any container that is in or part of the vehicle, goods that have been transported by road; or
o unload from the vehicle a freight container, whether or not it contains goods, that has been transported by road.
Importantly, a person can have more than one duty because of the functions they perform, and these duties cannot be transferred to another person.
A driver of a heavy vehicle is not a party in the chain of responsibility unless they perform another function such as a loader of goods.