Transition to the new Chain of Responsibility – are you complying?

Tech Support/Moderation Rosemary Pattison Quality & RTO Officer ARRB Group P: +61 3 9881 1590 E: training@arrb.com.au

Moderator Jerome Carslake E: Jerome.carslake@arrb.com.au NRSPP Manager ARRB Group P: +61 3 9881 1670 E: Jerome.carslake@arrb.com.au

Housekeeping Webinar is = 45 mins Question time = 15 mins + =

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Today’s presenter Geoff Farnsworth Partner Holding Redlich E: Geoff.Farnsworth@holdingredlich.com

Amendments to the Heavy Vehicle National Law coming in 2018

Summary ‘Primary duties’ - echoes Work Health and Safety Law and Rail Safety National Law Primary duty of care, so far as reasonably practicable, to ensure the safety of transport activities Executive officers Required to exercise due diligence to ensure operations comply May be convicted even if the company has not been prosecuted

Summary Max penalties: Individual $50,000 - $300,000 (and/or 5 years imprisonment) Corporation $500,000 - $3,000,000 Mass/load/fatigue/speeding: Instead of ‘must not..’, now ‘must ensure…’ No more ‘all reasonable steps’ defence – now ‘unless reasonable excuse’, onus on prosecution

Questions

Message of the Regulator Up to Directors and Executives to: Set culture of the company Understand obligations and ensure compliance Due diligence includes Knowledge about safe operation of transport activities Understanding the nature of the companies transport activities Understanding hazards and risk Prove it

Mass, dimension and loading (restraint/ positioning) requirements Current responsibilities From commencement of amended HVNL Act A person must not drive on a road a heavy vehicle that does not comply with mass/dimension/loading requirements. All reasonable steps defence applies. Maximum penalties: for a minor risk breach—$4,000; or for a substantial risk breach—$6,000; or for a severe risk breach—$10,000, plus an additional maximum $500 for every additional 1% over a 120% overload (but so that the additional maximum penalty does not exceed $20,000). Instead of the ‘all reasonable steps’ defence, parties must ensure the vehicle complies unless the person has a reasonable excuse. Penalties unchanged.

Fatigue Current responsibilities From commencement of amended HVNL Act Driver duties - A person must not drive a fatigue-regulated heavy vehicle on a road while the person is impaired by fatigue. Maximum penalty—$6,000. Party in the chain duties - A party in the chain of responsibility for a fatigue-regulated heavy vehicle must take all reasonable steps to ensure a person does not drive the vehicle on a road while the other person is impaired by fatigue. Maximum penalty—$10,000. Driver duties and penalties unchanged, except reasonable steps defence omitted – there is no defence for driver’s breach of fatigue duties. Party in the chain duties omitted. Obligation of parties in chain to prevent fatigue offences now covered only by new section 26E. Various amendments to work diary requirements.

Speeding Current responsibilities From commencement of amended HVNL Act Chapter 5 – Speeding imposes duties and penalties on parties in CoR to ensure speed limits not exceeded. Chapter 5 – Speeding omitted – all speeding provisions and offences now covered only by the primary duty of care in new section 26C and 26E.

Duties of each party in the Chain of Responsibility Current responsibilities From commencement of amended HVNL Act Separate offences and penalties for each area of compliance (mass, dimension, loading, speed and fatigue), together with ‘all reasonable steps’ defence. New section 26C Each party must, so far as is reasonably practicable: Eliminate/minimise public risks; and Not directly/indirectly cause or encourage a driver or other CoR party to contravene the HVNL or exceed a speed limit. Each party in the chain of responsibility must ensure, so far as is reasonably practicable, the safety of the party’s transport activities (such as contracting a person to drive or maintain/repair the vehicle, packing and loading goods, receiving unloaded goods etc). See penalties in ‘maximum penalties’ slide.

Questions

Executives’ duties and liability Current responsibilities From commencement of amended HVNL Act Executive officers (i.e. directors and managers) of a corporation that commits an offence also commit the offence if they knowingly authorised or permitted the conduct. However, it is a defence for the executive officer to prove they: exercised reasonable diligence, or were not in a position to influence the conduct. The onus is on the executive officer to prove they were diligent. New section 26D An executive officer of a party in the chain of responsibility must exercise due diligence to ensure that the party complies with its section 26C duty. The executive may be convicted even if the company has not been prosecuted. Due diligence includes taking reasonable steps: To know about the safe conduct of transport activities; To understand hazards and risks associated with those transport activities; and To ensure the party uses appropriate resources and processes to minimise and eliminate hazards and risks. The prosecutor must prove the executive did not exercise reasonable diligence.

Maximum penalties Current responsibilities Subject to indexation Current responsibilities From commencement of amended HVNL Act Range of penalties between $3,000 and $15,000 for individuals, 5x individual penalty for corporations, categorised into minor, substantial, severe and critical risk breaches. Many existing penalties (e.g. re mass, fatigue, loading) unchanged. Significant new penalties introduced to mirror the Model WHS Act: Breach of new section 26C or 26D Category 1 offence – recklessly engaging in conduct exposing an individual to a risk of death or serious injury or illness: Individual $300,000, or 5 years imprisonment, or both; Corporation $3,000,000 Category 2 offence – contravention exposing an individual, or class, to a risk of death or serious injury or illness: Individual $150,000; Corporation $1,500,000 Category 3 offence – other contravention of the duty: Individual $50,000; Corporation $500,000

Defences Current responsibilities From commencement of amended HVNL Act It is a defence for the person charged (of an applicable offence) to prove that they did not know/could not have known of the contravention and took all reasonable steps to prevent the contravention, or there were no reasonable steps that could have been taken. ‘All reasonable steps’ defence omitted. The onus is on the prosecution to prove that the party did not do everything reasonably practicable in the circumstances to avoid the offence. New section allowing an industry code of practice to be used as evidence as to whether or not a duty has been complied with.

Questions

Container weight declaration Current responsibilities From commencement of amended HVNL Act Each consignor or packer of the goods commits an offence if the weight of the container exceeds the maximum gross weight marked on the container or the container’s safety approval plate. All reasonable steps defence applies. Maximum penalty—$10,000. Each consignor or packer of the goods must ensure, so far as is reasonably practicable, the weight of the container does not exceed the maximum gross weight marked. Penalties unchanged.

Keeping relevant documents/copies of permits/false or misleading documentation Current responsibilities From commencement of amended HVNL Act A driver must keep relevant documents in the driver’s possession. All reasonable steps defence applies. Maximum penalty $3,000 (false/misleading penalty $10,000) Each relevant party for a driver must ensure the driver complies, unless the relevant party has a reasonable excuse (false/misleading – must ensure so far as is reasonably practicable documents are not false/misleading). Penalties unchanged.

What do executives need to do? Examples of the due diligence activities (explanatory memorandum) Develop a safety management plan; Make information readily available; Make appropriate resources and processes available to minimise risks in relation to the maintenance of vehicles; and Establish processes for considering and responding to information about incidents, hazards and risks.

What else can I do? Obtain specific advice Review policies and procedures - do they adequately minimise or eliminate risks? Review all contracts with drivers and transport operators - do they incentivise or require breaches? Consider tying payment/incentives to HVNL compliance Train management and personnel

Questions

Thank you for your participation today For further information, please contact: Geoff Farnsworth Partner Holding Redlich T: +61 2 8083 0416 E: Geoff.Farnsworth@holdingredlich.com

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