NHVR issues Chain of Responsiblity warning to transport executives

By: Rob McKay

Investigations and monitoring actions underway amid warnings of due diligence

NHVR issues Chain of Responsiblity warning to transport executives
The regulatory effort goes beyond the roadside and into the office

The National Heavy Vehicle Regulator (NHVR) has warned executives of heavy vehicle supply chain companies to be aware of their responsibilities under the changed Chain of Responsibility (COR) laws following a number of current investigations.

Eight months down the COR reform track, NHVR statutory compliance executive director Ray Hassall reveals the NHVR is currently undertaking six COR investigations and a further eight cases were being monitored.

"Investigations range from serious systemic breaches to responding to information gathered through the NHVR’s Confidential Reporting Line," Hassall says.

"All current investigations include the executive officers of companies, in addition to other roles within the supply chain.

"It’s important that executives make themselves aware of the responsibility associated with their interactions with the heavy vehicle supply chain."

Those investigations include the following allegations:

  • directions to disregard of work/rest requirements
  • the absence of safety management systems to prevent non-compliance
  • ineffective driver monitoring systems
  • poor load restraint practices.

Executive officers have an obligation to exercise due diligence to ensure parties in the chain of responsibility (COR) comply with their requirements under the law, the regulator notes.

"This may be described as a comprehensive appraisal of business systems and activities to establish methodology or evaluate performance of safe goods transportation," it says.

"Each party in the heavy vehicle supply chain was liable and responsible to the extent of their level of influence and control over the particular transport task."

The NHVR is also actively monitoring four supply chain businesses that are required to improve their safety practices.

"Operators are required to meet their safety duty requirements under the recent changes by ensuring, so far as is reasonably practicable, the safety of their transport activities," Hassall says.

The NHVR is urging all parties in the supply chain to make use of a variety of tools available for operators through the NHVR’s Safety Management System or the Registered Industry Code of Practice to give detailed guidance for operators.

Hassall is keen to bring attention to the amended HVNL’s Section 699, which protects from employer punishment employees who have given authorities information of or made any complaint about alleged contraventions of that law.

NHVR responds to COR overreaction

The NHVR National Investigations Team, established after the reforms came into effect last October, works with state agencies to coordinate investigations.

At this early stage in its progress, the focus is on incidents involving fatalities, but the reform’s green light to a proactive approach is seen as a positive.

The team is led by former police and workplace health and safety officer Steve Underwood.

"Steve is an experienced investigator with a history of conducting complex investigations into deaths and serious injuries across many industries," the NHVR says.

"He has more than 25 years of experience leading and managing teams, in regulatory environments with the Queensland Police Service, Workplace Health and Safety Queensland and the Department of Natural Resources Mines and Energy."

Underwood’s team also contains experienced staff, with those from police having operated at detective level.

He notes prosecutions are involved affairs that may take up to nine months to get to court, by a team that is working under a very high level of scrutiny on cases that will have to be proven beyond reasonable doubt, rather than on the balance of probabilities.

"All these investigations involve a multifaceted approach, involving numerous agencies across borders," Underwood tells ATN.

He is sensitive to the view that there has been a hiatus in COR action but says warrants have been executed on premises and investigations are ongoing.

"The contention that chain of responsibility is really not doing much and nothing is happening couldn’t be further from the truth," he says, urging patience with the process.

While Hassall acknowledges aspects of the COR reforms will gain greater clarity once legal cases pass through the courts, he rejects the idea that the industry is flying blind on the concept of duty-based responsibility.

"The law is specifically designed to make you consciously contemplate these things.

"So, it’s no good saying ‘oh, the NHVR didn’t tell me how much I can do’ or ‘there hasn’t been a court case in South Australia on drug testing’.

"If you haven’t actually  . . . taken into account prevailing good practice and what a reasonable person in your position should do before they start making money out of a business using public assets like roads, the court is going to look unfavourably on that , regardless of whether we’ve put out a black-letter rule or not."

A common criticism of COR action in practice is the lack of many links in the chain beyond trucking companies.

Early in its COR stewardship, Hassall notes that it is logical for the regulator to start that way, "simply because, in a lot of cases, we’ve directed a lot of compliance monitoring towards them.

He casts the scene as working on two levels: vertically into management levels and along the chain to other parties. Complicating matters somewhat was the varying breadth of services some transport operations undertake, including scheduling and packing.

At present, the effort is to draw the focus away from drivers, and this is an aspect that is embedded in performance indicators.

But the regulator points out that it is empowered to take action on anyone covered by the Act.

More information from the NHVR can be found here.


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