Amendment to Heavy Vehicle National Law
In mid-2018, the Heavy Vehicle National Law (HVNL), which establishes a single national system of laws for heavy vehicles over 4.5 tonnes and applies in all states and territories in Australia (except Western Australia and the Northern Territory), will be amended.
The amendments will include new chain of responsibility laws which will mean that all parties involved in the heavy vehicle supply chain — whether 'on the road' or 'off the road' — will share equal responsibility for ensuring that breaches of the HVNL do not take place, as well as liability where breaches of the HVNL are found to have occurred.
Who are the parties in the heavy vehicle supply chain?
All parties that have control or influence over a transport-related activity will be responsible for complying with the HVNL, including:
- employers and company directors;
- corporations, partnerships, unincorporated associations, or other bodies corporate;
- drivers and operators of vehicles;
- loaders and unloaders of goods;
- persons supervising the loading and unloading of vehicles;
- persons managing a site where the loading and unloading of vehicles takes place;
- schedulers of goods or passengers for transport in or on a vehicle; and
- consignors, consignees, and receivers of goods for transport.
Relevantly, a person may be a party to the supply chain in more than one way (for example, as both an employer and company director, or a person who supervises the loading and unloading of vehicles and manages a site where this takes place).
What do the amendments mean for businesses that operate heavy vehicles?
The amendments to the HVNL will mean that parties to the supply chain will have a positive duty to eliminate and minimise risk by doing everything "reasonably practicable" to ensure that transport-related activities comply with the HVNL.
The amendments will mean that even where a business has no involvement in the driving or operation of a heavy vehicle, if the business packs, loads, consigns, or receives goods, it could be held legally responsible for a breach of the HVNL. Liability may apply to both action (by taking steps that lead to a breach of the HVNL) and inaction (by failing to take steps that leads to a breach of the HVNL).
How might a business breach the new laws?
The chain of responsibility obligations imposed on parties to the supply chain may be breached by, among other things:
- applying practices that cause a driver to breach fatigue management policies or speed limits, or failing to properly assess driver fitness;
- setting schedules with unrealistic deadlines for completion;
- packing goods incorrectly; and
- failing to weigh, measure, or secure loads, or causing delays in the loading and unloading of goods
(collectively, the Supply Chain Risks).
What are the maximum penalties for breach of the new laws?
The penalties for breach of the new laws will be similar to current workplace, health and safety laws and will comprise a maximum fine of $3 million for a company and a maximum fine of $300,000 or five years' imprisonment (or both) for an individual.
What can businesses do to prevent a breach of the new laws?
All businesses that involve the operation of heavy vehicles as part of the supply chain should be aware of their newfound obligations under the HVNL. In particular, in order to ensure compliance with the new laws, businesses that involve the operation of heavy vehicles as part of their supply chains should ensure that they and their supply chain stakeholders manage their Supply Chain Risks (as described above), including compliance with speed, fatigue, mass, loading, and vehicle standards requirements.
The National Heavy Vehicle Regulator also recently outlined the following ways in which businesses can ensure that they are compliant with the new laws:
- ensuring timeframes for preparing loads for dispatch are met so that drivers are not delayed and pressured to speed or breach fatigue rules;
- avoiding written or verbal requests or demands that could encourage a heavy vehicle driver to speed or drive while fatigued; and
- liaising with both the transporter and other parties in the chain of responsibility when organising timeframes for pick-ups and deliveries.
Business should also ensure that they have safety management controls and systems in place that actively identity, assess, evaluate, and respond to the Supply Chain Risks and that actions taken to manage the Supply Chain Risks are properly documented.