Following changes to the Heavy Vehicle National Law late last year, there is some confusion as well as a number of common misunderstandings within the transport industry about certain OHS-related changes, according to a specialist OHS lawyer.
For example, employers across the chain are being wrongly advised that they will be held liable in the event that an incident occurs involving a heavy vehicle, regardless of their role or actual influence over the factors which lead to an incident, said Sue Bottrell, senior safety consultant and lawyer with SOS Safety and Legal.
“Examples have included that a consigner may be held responsible if a transport operator fails to maintain their vehicles, a consignee may be held responsible for a driver being fatigued, for example, where these operations are outside the control of the consignor or consignee,” said Bottrell.
She explained that certain phrases are misguided and misrepresent the duties and how they apply, including:
- Every party in the heavy vehicle supply chain is responsible and may be held liable for safety breaches committed anywhere along the chain;
- Your future in supply chain depends on your ability to ensure that any possible risk is removed from causing danger or harm to anyone else, whether they work for your business or not;
- Under the Heavy Vehicle National Law parties are also required to take all reasonable steps to exercise control or influence over the compliance conduct of third parties in your supply chain;
- A manufacturer can be held responsible for the compliance of any truck operating within its supply chain, whether operated by the manufacturer internally or by an outsourced provider engaged within that supply chain.
Bottrell also explained that the term “shared obligation” has caused significant confusion and anxiety across the transport industry through misinterpretation.
“The intention of creating a shared obligation is to make sure a party doesn’t do anything which forces another party in the chain to engage in unsafe practices,” she said.
“It is not about interfering in other parties’ operations which you are not directly involved in.”
Changes to the Heavy Vehicle National Law, which were made on 1 October 2018, clarify the way existing duties regarding the safe operation of heavy vehicles are to be interpreted and how the legislation will be applied in the event of an incident, said Bottrell, who spoke on the topic as part of a Safety Institute of Australia webinar late last year.
The changes are intended to ensure others, who impact on the safe operation of a heavy vehicle, such as consignors, consignees, loaders, schedulers and transport operators are held responsible in the event that their actions contribute to an incident or create a risk involving a heavy vehicle.
Bottrell also said there is significant misinformation about the way in which parties can meet their obligations.
“Many chain of responsibility systems being promoted focus on examining what others in the chain are doing to manage their risks, rather than focusing on a party’s own operations and consequent risks.
“Examples include systems which require collecting from other transport operator’s vehicle maintenance records, driver fatigue records, licenses, obtaining evidence of training, induction and safe operating procedures – none of which is necessary,” she said.
Bottrell, who has worked in OHS and rehabilitation and for the past 15 years and was the first safety professional in Australia to become a Certified Chartered Generalist OHS Professional Member of the Safety Institute of Australia, said companies can take steps to avoid overcomplicating processes and support compliance and best practice management of transport-related safety.
“On a practical level, each party needs to take a traditional risk management approach to management of safety involving heavy vehicles,” she said.
“This means identifying how you might contribute to or create a risk in the operation of that vehicle and then eliminating or reducing those risks so far as is reasonably practicable.
“What parties do not need to do is implement complex systems monitoring the safety arrangements of others in the chain,” said Bottrell, who added that the essential elements of chain of responsibility compliance include:
- Considering how your operations pose risks to the operation of a heavy vehicle
- Implementing processes to manage those risks
- Engaging contractors with a good reputation
- Asking the right questions, such as ‘do you have systems to manage safety?’
- Not collecting copious amounts of paperwork
- Monitoring and communicating safety performance during contracts
- Clearly establishing scopes of work and responsibilities of each party for safety
Bottrell added that qualified safety professionals are vital in assisting parties in the chain to clearly understand their obligations under the “new” interpretation of duties owed under the Heavy Vehicle National Law.
“Qualified and certified OHS professionals clearly understand the application of WHS legal principles and they can support parties to implement efficient and effective systematic management of heavy vehicle related risks – including looking closely at a party’s operations and identifying where they can impact on the safety of transport operations, versus misguidedly focusing their efforts on monitoring the operations and safety arrangements of others in the chain,” she said.
Safety professionals also have an important role in implementing effective targeted safety management strategies, which correctly interpret the duties.
Bottrell said the essential steps to complying with the modified duties under the Heavy Vehicle National Law reflect long-held risk management principles including;
- Identifying how your operations can impact on heavy vehicle safety.
- Implementing risk management strategies to eliminate or reduce risks so far as is practicable.
- Monitoring the effectiveness of those strategies and making modifications where necessary.
- Working with others in the chain to support safe practices in areas you have control or influence
This article first appeared on the Safety Institue of Australia’s website entitled “CLEARING UP OHS CONFUSION UNDER HEAVY VEHICLE NATIONAL LAW CHANGES” a link to the original article is available here.
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