Chain of responsibility, Opinion, Transport operator fined

Prosecutions must go further along chain of responsibility

I don’t know about you, but I am getting tired of seeing NHVR prosecutions [Melbourne company fined $180k for 69 mass limit breaches] that only target transport operators, and don’t travel any further along the chain of responsibility.

If the NHVR is serious about the Heavy Vehicle National Law (HVNL), then an investigation into the consignee receiving these overweight trucks is, without a shadow of a doubt, the only next step the investigation team can take; not patting themselves on the back about stopping the ‘serious risk to public safety’.

If it is such a serious risk, and the 69 offences occurred over a two-year period, then any investigator with half a brain cell must think: “That freight went to a consignee, and evidently, the consignee does not have ‘systems and procedures in place to ensure drivers and loaders are adequately trained’, otherwise the transport operator would not have continued doing this…”

Why do I say that? Because if the consignee had ‘systems and procedures in place to ensure drivers and loaders are adequately trained’ then it would have:

  • notified the transport operator they had breached the mass limits;
  • asked for a reason why that had occurred;
  • completed a corrective action, maybe:
    • asked for the people involved to be re-trained; and
    • provide evidence of that, before allowing them back on site;
  • had a process in place whereby overloaded trucks dump their overloaded freight into a separate area, where that overloaded freight is sold, and the funds given to charity rather than the transport operator (which is what happens in the grain industry);
  • told the operator they were banned from entering the site for X days as a penalty for overloading (occurs in the timber industry); and
  • have evidence of all of the above being done.

As it stands it would appear the consignee doesn’t have anything like this in place, and instead, is encouraging the operator to continue to breach – they were obviously paid for the over mass incidents, because they kept doing it!

Therefore, why is there no indication in the media release from the NHVR that the consignee is being investigated? Failure to conduct such an investigation makes a mockery of the system, and places a target squarely on the backs of those the COR laws were designed to protect.

The industry doesn’t need to know who is being investigated in such instances, but we do need to know it is being done. A simple line in at the bottom of the NHVR’s successful prosecution media releases stating, ‘investigations into parties in the chain of responsibility in relation to this matter are continuing’ and a follow up when a prosecution occurs into that party will help us see the NHVR is doing what the legislation intended, and not chasing those easy targets. Otherwise, why bother having COR legislation?

Every prosecution that charges directors of a transport company must follow the chain of responsibility to complete the investigation properly – consignor, consignee, loader, unloader, loading manager, scheduler (in fatigue cases).

This shouldn’t be determined by whether a prosecution is likely or not; that’s what an investigation is for, so… don’t be lazy, do the damn investigation. It should be a basic KPI: Charged a transport operator for mass breach = investigate other parties in chain. Simple.

Industry needs these investigations into COR parties to stop some of the behaviours and pressures that are still being levelled at it.

I wonder why COR parties scoff at any suggestion they might be investigated? Probably because they know a prosecution is highly unlikely; and even if it did occur, they are comfortable they’ve got the legal might to defeat any prosecution, assuming it even gets that far.

Continuing this absurd focus on transport operators makes a mockery of the entire HVNL and simply feeds the growing apathy and cynicism industry holds towards the Regulator’s prosecution tactics.

Surely, after all this time, there should be some significant, successful COR party prosecutions on the board.

Is it a question of resourcing? Knowledge and capability? Or is it laziness, chasing the easy target to hit a false KPI?

Perhaps fear, not have the guts to sink one’s teeth into a sizeable opponent, scared of the fight that might ensue, believing the risk to one’s reputation of losing a high profile (and high cost) case is not worth the effort? To which I say, what is the risk to one’s reputation of not chasing that prosecution?

They say time will tell. It’s been a decade since the NHVR was first put into place.

What’s time telling you?

  • Jodie Broadbent is the founder of Know the Road, which provides consulting auditing and training services for road freight supply chain partners.

2 Comments

  1. Your article is spot on, we had a driver in Sydney who collected a load, he was correct weight but the docket said he was overweight on his front axle. NHVR pulled him over he received a fine for being overweight on his Tri-axle and the overall docket was heavier than his original docket. When he got to the delivery plant that docket showed a different weight to the 2 dockets he has received now. So, the driver said to me how do I know what I am carrying as 3 dockets for the same load were all different weights. Please note the pick-up and delivery address all belong to major companies. But we got the fine. I questioned NHVR on this and provided all 3 dockets and asked why they did not go to the first company and check their weighbridge, as they released our driver to be able to drive on the roads. Which of course means it could happen until that weighbridge is next calibrated. The response I got was the judgement stands and the fine was put in place against us to pay. No response regarding whether the other companies weighbridge were checked. So, in the chain of Responsibility the first company allowed a vehicle to leave site overloaded and the receiving company allowed us to deliver an overloaded load no one took steps for their breaches of the law and rules of mass management.

  2. why has it always focused on the driver and maybe his supervisor. because they have the driver by the short and curlies. he was on scene.

    and ultimately he broke the law so it real easy to target the driver.
    its harder to prosecute the supervisor and the company, because its harder to get evidence against them. the companies have their paperwork and systems in place and set up to hang the driver out to dry and absolve themselves as much as possible.

    maybe its time all drivers recorded the conversations they have with their management so they do have some proof of undue pressure and where they have been told to do unlawful things so its not just your word against theirs.

    the law states it is a employee’s responsibility to refuse any unlawful or dangerous instruction from anyone. and it only has to be in their opinion.

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