What is the Chain of Responsibility?

What is the CoR and what the aim of the CoR laws?

The Chain of Responsibility (CoR) is the part of the Heavy Vehicle National Law (HVNL) that makes parties other than drivers responsible for the safety of the heavy vehicles on the road. Each party in the chain must ensure, so far as is reasonably practicable, the safety of their transport activities.

The aim of CoR is to ensure everyone in the transport supply chain shares responsibility for ensuring breaches to the HVNL do not occur. The onus is no longer on the driver but anyone that holds influence. If you are involved in the chain and you exercise (or have the capability of exercising) control over any transport task, you have a responsibility to ensure compliance to the HVNL.

What is primary duty, and what does it mean for me?

The Primary Duty is the obligation to do what is reasonably practicable to ensure safety across your transport activities. That is to say, it's your responsibility to do everything you can to ensure your actions lead to safe outcomes within the day-to-day operation of your business. You must manage the risks and hazards that arise from your transport activities. The law here is very similar to the Workplace Health & Safety laws that you also have obligations to, essentially to identify, assess and eliminate risks to minimise or eliminate them as much as possible. Your tasks as you carry out your primary duty should include, but not limited to:

Identify the risks to public safety that arise from your transport activities
Work out what measures would be reasonably practicable for you to implement to ensure safety
Implement those measures and monitor whether they work.

Anyone who is a part of the COR must not take any action that could influence drivers and others to breach the HVNL in terms of direct requests or in terms of contract, financial penalties, preferential treatment, or any other words/actions that may cause or encourage the bending of rules.

What is executive due diligence or duty?

If you hold a specific role in the business that holds power, such as an executive officer, manager, supervisor, or another person who takes part in the management of the business, including a director or partner. If you are an executive of a business that is a party in the Chain of Responsibility (CoR), you have what is known as an Executive Duty which requires you to exercise due diligence. You must exercise due diligence to ensure that the business complies with its primary duty and any other safety provisions within the HVNL.

When am I a party in the CoR?

Simply put, if you perform any of the following functions, you are a party in the CoR. This is because of the function you perform, rather than your job title or description.

Employ a heavy vehicle driver (employer)
Engage someone to drive a heavy vehicle under a contract for services (prime contractor)
Direct the control and use of a heavy vehicle (operator)
Schedule the transport of goods and passengers in a heavy vehicle, or schedule a driver’s work and rest hours (scheduler)
Consign goods for transport by a heavy vehicle (consignor)
Receive goods delivered by a heavy vehicle (consignee)
Pack or assemble goods for transport in a heavy vehicle (packer)
Manage premises where five or more heavy vehicles are loaded or unloaded each day (loading manager)
Load a heavy vehicle (loader)
Unload a heavy vehicle (unloader)

If you engage in any of the above activities, you or your business are accountable for heavy vehicle safety according to your primary duty. More than half the CoR functions relate to people and businesses that do not own or operate a heavy-vehicle.

What are some examples when CoR apply?

Some examples of when the Chain of Responsibility could apply include:

Driver breaches fatigue management requirements
Driver breaches speed limits
Vehicle breaches mass or dimension limits
Loading requirements are violated
Vehicle is not maintained to roadworthy standards
Where any instructions to parties in the supply chain causes or contributes to an offence under the HVNL. This can include anything done or not done that impacts compliance, such as:
- Third parties who place unrealistic timeframes on the company
- Schedulers who place unrealistic timeframes, which cause drivers to exceed their work rest hours
- Loading managers whose business practices, including loading/unloading times, cause the unbalanced loading of the vehicle
Unrealistically tight work schedules causing the driver to speed or undue pressure to deliver goods within a timeframe causing the driver to miss their fatigue work/rest hours
A third-party exerting pressure to cause a driver to exceed the maximum gross weight limits to ensure all goods are delivered in a single delivery
A transport manager who doesn't ensure all drivers credentials and licences are correct and up to date and allows an unlicensed driver to operate the incorrect heavy vehicle combination.

Who is the National Heavy Vehicle Regulator (NHVR)?

The National Heavy Vehicle Regulator, or NHVR, is Australia’s independent regulator for all vehicles over 4.5 tonnes gross vehicle mass. Established in 2013, their vision is for a safe, efficient and productive heavy vehicle industry serving the needs of Australia by:

Minimising the compliance burden
Reducing duplication of and inconsistencies in heavy vehicle regulation across state and territory borders
Providing leadership and driving sustainable improvement to safety, productivity and efficiency outcomes.

What is the Heavy Vehicle National Law (HVNL)?

The NHVR administers one set of laws (the HVNL) for heavy vehicles over 4.5 tonnes gross vehicle mass, which consists of the Heavy Vehicle National Law and four sets of regulations. The law commenced on the 10 February 2014 in the Australian Capital Territory, New South Wales, Queensland, South Australia, Tasmania and Victoria. Each of these states passed a law that either adopts or duplicates the HVNL, with some modifications, as a law of that State or Territory. Although the HVNL has not commenced in Western Australia or the Northern Territory at this time, it still applies equally to vehicles from those jurisdictions when they cross the border where the HVNL applies. In some cases, drivers may also need to comply with certain aspects of the HVNL before they cross the border, for example, fatigue work diary requirements.

What are the penalties for not complying with the primary duty?

There are significant penalties can be imposed for a party of the CoR that breaches primary duty. Courts can consider the actions of each party's role in the supply chain during prosecution and the extent, nature, and seriousness of the contravention. When an incident occurs, enforcement will work their way backward from the event to determine the cause of the incident.

Depending on the nature and seriousness of the breach, the penalty for an individual can be up to $300,000 and five years imprisonment - this includes executives who fail to exercise due diligence - while the penalty for a business can be up to $3 million. For more information and breakdown, check out the infographic here.

How can I demonstrate that I am meeting the new Primary Duty requirements?

You must proactively and consistently identify, assess and eliminate risks as much as possible. This can include driver behaviour, including compliance with speed, fatigue, mass, dimension, loading and vehicle standards requirements to ensure they meet both your company's safety policies and regulations set by CoR and the HVNL law.

This can be made easier by installing a comprehensive and connected fleet management software. You can determine exactly how your drivers are operating vehicles and have a window previously unseen into the transport chain you have a responsibility to. With technology, you can address issues before or as they arise, as these performance and safety insights from the system allow you to benchmark fleet safety initiatives such as incentives and education programs while demonstrating proactive risk management. Having technology isn't the silver bullet alone, it's how you utilise it within the everyday processes and practices of the business.

As a driver, how do I comply with CoR?

Heavy vehicle drivers are not part of the chain, unless they own the vehicle and thus do not have to comply with the HVNL, as the procedures, process, and training you have to follow are part of your employer's CoR obligations. As a driver, your employer should make sure they comply with HVNL requirements:

Roadworthy and well-maintained vehicles
Safely load & unload vehicles
Vehicles within mass and dimension limits - if you drive a vehicle that exceeds general mass and dimension limits, you should also know how to work out which routes you are permitted to drive and what conditions you have to comply with
Load restraint guidelines are followed
Not driving when fatigued or exceeding speed limits - if you drive a fatigue-regulated heavy vehicle, you should be able to record your work and rest hours

Depending on the type of work the business undergoes, as a driver, your employer may require you to follow additional safety procedures that relate to your work circumstances. By following all these requirements, you as a driver and as an employer, can ensure you are complying with the parts of the HVNL that apply to you.

Does my primary duty depend on my role in the CoR?

There are 10 different CoR functions where the duty for all of them is the same, to identify, minimise or eliminate risk from the transport activities being influenced or controlled that is so far as is reasonably practical. Once you have understood that you are a CoR party (see "When am I a party in the CoR?" above) because you perform one of the 10 CoR functions, your next focus should be carrying out your primary duty. The primary duty is the same for every party in the chain however what you can reasonably do will depend on the level of control or influence you have over the task.

The HVNL does not set out the primary duty according to CoR roles, and do not impose obligations on particular people in the business. Those provisions may be a useful starting point when you are developing systems for managing risk within what is called a Safety Management System.

Who is responsible – employer or employee?

While employees have duties, it's the employer that generally has more control over work practices, training, and resources. For this reason, investigation of a breach of the primary duty generally with the business and its management. Individual employees who fail to follow procedures may also be investigated. It is the discretion of prosecutors on who should be charged (business, individual, or both), based on the factual circumstances, the law, rules of evidence, and the NHVR's Prosecution Policy.

Under the executive due diligence duty (see 'What is executive due diligence or duty'), prosecutors also consider whether to charge the executive of a business if they have failed to exercise due diligence.

Key Terminology You Should Know

What does 'reasonably practicable' mean?

‘Reasonably practicable’ is the legal standard for complying with the primary duty. Reasonably practicable refers to what you can logically and rationally do within your role as a party of the CoR, to identify, mitigate or eliminate that is judged on what an ordinary, reasonable person would think was reasonable in that situation, event, or circumstance. Every possible instance or business out there is different, so there is no single way to ensure safety.

Typically, when it comes to an investigation, what is 'reasonably practicable' is assessed based on:

The probability of an incident
The harm that could result
What you know about potential risks and how to control them
Whether controls are available and suitable
The cost of controls in proportion to the risk.

This brings the CoR in line with the way with how WH&S (workplace health & safety) laws are evaluated. With how much variation in how businesses operate, it means that there is no single way you can result in levels of safety.

A measure or action that would suffice in one situation might be completely inadequate in another, and excessive in a third set of circumstances. For example, measures that would be reasonably practicable for transporting bulk grain on a rural highway would not be enough for transporting flammable liquids through a densely populated urban area.

When expense is a factor, if the cost of control is out of measure to the proportion to the risk, it may not be considered a reason for failing to implement those measures - some situations, the risk could be so high that there is no effective control, thus the activity should not be permitted.

How do you work this out? Businesses and their executives must thoroughly understand the tasks that are being carried out, identify the risks they create, and mitigate or eliminate them. The best place to start those inquiries may be with registered Industry Codes of Practice.

What does 'safety' mean?

When considering Primary Duty, ‘safety’ means eliminating public risk. This includes everything from drivers and passengers of heavy vehicles, safety of other road users (incl. people around roads), prevention of harm to the environment, right through to the protection of property, vehicles, loads, and the road infrastructure.

In the heavy vehicle transport industry, there are a number of critical issues, which are heavily outlined with detailed requirements within the HVNL. These include managing driver fatigue, complying with mass & dimension limits, load restraint safety, and the ongoing maintenance of safely operating vehicles. If you have processes, practices, and/or systems in place that meets these above outcomes, your business is well on the way for your business to comply with its primary duty.

Other safety issues that are not covered by specific regulations in the HVNL but should also be considered include:

Induction & training
Driver distraction
Driving to all road conditions safely
Traffic congestion, especially near loading premises
Vehicle emissions
Physical and mental health of your staff & drivers
Managing the use of alcohol and other drugs
Effluent management
Spreading diseases borne by livestock.

Always remember, you or your staff's knowledge and experience in the business will mean that you will be able to identify where most of your risks or hazards exist in your workplace and through your operation. Don't forget to seek out other sources of potential risk from resources like the registered Codes of Practice, Regulatory Advice, industry publications, and guidance material from road safety and research bodies, police, and road authorities.

What does 'transport activities' mean?

'Transport activities' refers to all conduct related to or that influences the transport leg of your business. This includes:

Use of a heavy vehicle on any public or private road
All functions outlined by the Chain of Responsiblity (see 'When am I a party in the CoR?' above)
Business practices that affect the transport chain, including the decisions made, like:
- Purchasing vehicles or equipment,
- Hiring and/or training employees, or
- Developing and implementing policies.
Contracting, directing, or employing to drive a heavy vehicle, or do other works related to a heavy vehicle (maintenance, repair, etc.)

Because it is an inclusive definition, including multiple roles or actions, it gives examples of what's included in that definition but remember they are only examples. There are more things that can be on the list of 'transport activities' that aren't directly outlined.

Please note, if you're a party in the CoR , you must identify, mitigate or eliminate risk from all transport activities, and not just activities related to your function in the CoR. For example, a company that packs goods for truck collection also has influence on the fatigue, speeding and load restraint risks of those vehicles. So, it must eliminate or minimise its contribution to those risks so far as is reasonably practicable.

What does 'due diligence' mean?

As a person who is a party of the CoR, you have the responsibility to exercise 'due diligence' to reduce risk for a safe workplace. This refers to:

Getting, maintaining, and improving your knowledge about carrying out transport activities safely
Understanding the nature of your business’s transport activities, along with the inherent hazards and risks of those activities
Ensuring the business has, and uses, the resources and processes needed to identify, minimise, or eliminate the hazards and risks created by its transport activities
The information about each hazards, risks, and incidents are received, considered, documented, and responded to quickly.

What is the difference between the primary duty and the due diligence duty?

The primary duty applies to any CoR party. It requires the party to identify, minimise, or eliminate the risk of the transport activities they influence or control, so far as is reasonably practicable. The due diligence duty applies to the executive of a CoR party. It requires the executive to exercise due diligence to ensure their business complies with its primary duty and other safety duty provisions of the HVNL.

In practice, there is substantial overlap between the actions taken to carry out these two duties. For example, implementing an effective Safety Management System (see below) could be evidence of compliance with both the primary duty and the executive due diligence duty.

Safety Management Systems (SMS)

While there is no requirement for an SMS in the HVNL, it is highly recommended to have one as it's a simple way to help meet your primary duty obligations.

An SMS is a formally put-together document that highlights all the known risks and hazards identified and your practices and processes put in place to mitigate or eliminate those risks. It can typically include elements such as risk assessment, treatment and monitoring, safety training and communication, internal investigations, performance monitoring and reporting, and continuous improvement.

Doing what you can to ensure you put it into practice is important. Having them posted up at your workplace isn't enough. This can include making sure staff are trained on the SMS, understand the procedures, where to document risks, or where to find the SMS.

An SMS can offer an effective way to manage risk. Having controls in place, such as business practices, training, procedures and review processes can help you:

Effective way to identify, assess, evaluate, and control risk
Controls in place, including practices, training & procedures to help guide you
Manage compliance with speed, fatigue, mass, dimension, loading, and vehicle standards through identified best practice
Undergo regular reporting, including to executive officers.

Learn more about Safety Management Systems (SMS), or to get started on an SMS of your own, The NHVR have created a nine-step SMS roadmap to help you develop an SMS, whether you are starting out, making improvements, or well on the way to effective safety management.

Parties in the CoR

What if I'm a driver or employee?

If you are employed as a heavy vehicle driver, you are not a party in the CoR. But it’s important to note that the HVNL includes many other obligations for drivers and other employees in the heavy vehicle industry that you need to comply with, including complying with state transport laws and road rules. Learn more about the HVNL and how it applies to you

All employees, including employed drivers, also have obligations under work health and safety laws to look after their own health and safety, and that of their colleagues. Read the FAQ: As a driver, how do I comply with CoR?

What if I'm an owner/driver?

If you own and drive a heavy vehicle you are an 'operator' of the vehicle and a party in the CoR. It means you you or your business are accountable for heavy vehicle safety according to your primary duty.

What if I have more than one role in the CoR? What if there is more than one party to a function in the CoR.

You or your business may at times perform multiple functions that appear in the CoR. You still have the same single Primary Duty, but this can mean you may have more risks to manage, and it is still your duty to identify, minimise, or eliminate those risks. No matter which CoR function you are performing, your legal duty is always the same, no matter the function if you are a party in the CoR. This is the duty to ensure, so far as reasonably practicable, the safety of your transport activities. This is the primary duty.

In many instances, multiple people or businesses can be involved in the same transport task in a supply chain arrangement. At all times, you need to be aware of your shared responsibilities and how the primary duty applies.

Sources:

*This FAQ is provided as a general guide only and does not cover everything in the law.