The HVNL applies to all heavy vehicles over 4.5 tonnes gross vehicle mass. Changes to the Chain of Responsibility (CoR) were introduced on 1 October 2018. This impacts all construction companies who engage heavy vehicles over 4.5 tonne.
CHAIN OF RESPONSIBILITY (CoR):
Under the CoR laws if you are a party in the chain of responsibility and you exercise (or have the capability of exercising) control or influence over any transport task, you have a responsibility to ensure the HVNL is complied with.
Each party in the chain must so far as is reasonably practicable:
Eliminate or minimize public risk
Not cause or encourage a driver of a heavy vehicle to break the law i.e. impose unrealistic time frames causing the driver to speed to meet deadlines
A person must not enter into contracts or arrangements that encourage, reward or give incentives to the driver or other parties in the supply chain to breach the law i.e. drive whilst fatigued or speed.
Applying business practices or demands that cause a driver to breach fatigue management requirements or speed;
Failing to weigh, measure and secure loads
Setting unrealistic schedules/timeframes;
Causing unreasonable delays in loading and unloading;
Packing goods incorrectly
Contracts that encourage a breach of law
Category 3 – breaches safety duty $50,000 Individual; $500,000 Corporation
Category 2 – risk of death/injury $150,000 Individual; $1.5m Corporation
Category 1 – recklessness - 5 years imprisonment, $300,000 Individual $3m Corporation
DOES THIS APPLY TO ME?
The example we will use to explain the responsibilities is a multi-storey construction project with two levels of basement below street level. Bulk excavation is to occur and the spoil is to be trucked off site to different disposal locations.
The parties involved in the activity:
Principal Contractor - engages an excavation subcontractor.
Excavation subcontractor - engages a transport company to truck the spoil off site.
Transport company - engages self employed truck drivers to undertake the transportation of the spoil.
Self employed truck drivers – make the delivery.
Effectively, there are four parties in the supply chain and their legal liability can apply to their actions, inactions of their duty of care obligations. Naturally, parties 2, 3 and 4 have a greater responsibility to ensure compliance with the HVNL than party 1, ie, the Principal Contractor.
Further information can be found at: - www.nhvr.gov.au
WE ASKED OUR LAWYERS
The advice below comes from our expert Safety Lawyer
Principal Solicitor at KHQ Lawyers
In the Elliott Safety spoil removal scenario above, the Principal Contractor (PC) is a party in the supply chain for the removal of spoil off site. Where it exercises, or has the capability of exercising, control or influence over how and when the spoil is removed, the PC must consider the following in ensuring compliance with the HVNL:
PC’s business practices do not cause or encourage the driver of a heavy vehicle to exceed the speed limits. A note of caution here in placing any demands on the driver or another party in the supply chain such as the excavator subcontractor regarding the truck’s arrival time on site to collect the spoil from site and/or to deliver to an offsite location within a strict time limit;
PC’s business practices do not cause or encourage the driver of a heavy vehicle to breach mass, dimension, or loading requirements e.g. if the PC requires the excavator subcontractor to remove spoil from site in one load which exceeds the truck’s mass and dimension limits and/or does not comply with loading requirements, this exposes the PC to risk of breach of the HVNL;
PC does not set unrealistic contractual arrangements for spoil removal requirements which causes or encourages the driver to exceed regulated driving hours or drive whilst fatigued.
WHAT IF THERE IS AN INCIDENT WHEN THE TRUCK LEAVES SITE?
In the event that the driver of the truck is involved in a spoil spillage incident after leaving the site which was a result of an overloaded truck and there is a prosecution involving multiple parties in the supply chain, the court will consider the actions of each party i.e. what measures each party had in place to ensure safe practices and prevent breaches of the HVNL.
The PC must be in a position to demonstrate what measures it undertook in the form of safe practices, training and procedures to prevent breaches of the HVNL.
WHAT YOU CAN DO?
Consider how your actions (and inactions) and the terms of your commercial contracts may impact on safe heavy vehicle transportation in your business and address any troublesome contratual terms or business practices to eliminate or minimise risk by doing all that’s reasonably practicable to ensure safety of the transport activities eg consider any time limits or amount of spillage required to be moved per day that may create exposure to risk of breaching the HVNL;
Ensure your site teams are informed and trained on how to prevent breaches of the HVNL e.g. documented toolbox meetings and/or training sessions for site managers and teamleaders, to ensure they do not ask, require or direct transport activities that breach the law;
Ensure relevant subcontractors have a system in place (including practices, procedures, training etc) to manage the risks associated with transportat activities that complies with the HVNL and HVNL Regulations. Assuredness of an appropriate system should be covered off during the tender and contractor onboarding stages;
Commercial contracts with subcontractors should include a requirement of ongoing compliance with all applicable laws relevant to the transport activities (including the HVNL and Regulations).
Gina Capasso - Principal Solicitor
+ 61 3 9491 8421
+ 61 451 981 970
Level 4, 600 Collins Street, Melbourne VIC 3000
The content of this publication is for reference purposes only and does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.