Australia: Clarity on contractor management under the Chain of Responsibility

Last Updated: 29 May 2019
Article by Nathan Cecil
Most Read Contributor in Australia, August 2019

The National Heavy Vehicle Regulator (NHVR) has released an article "Extra CoR pressure not required under law".

The crux of the Chain of Responsibility (CoR) article is that many heavy vehicle operators are facing pressure from larger customers to disclose a wide range of operational and compliance documentation (e.g. details of drivers, safety systems and work diaries).

"This level of information is not required by a customer or primary contractor under the CoR laws," explains NHVR.

"It's the transport operator's responsibility to manage their own operations."

"Customers are entitled to rely upon the fact that their transport operators have systems and procedures in place to manage their own safety responsibilities."

To say that the article has generated debate and consternation is an understatement!

The reaction highlights that there is ongoing uncertainty over precisely what is required under the new primary safety duty in any particular circumstance. It also highlights the risks involved in making high-level and all-encompassing statements about what is required.

It is important to understand the article in context.

First, in our view, the article is aimed at supply chain businesses which fulfil the role of consignee or consignor only – so pure 'customers' of transport services. The comments do not necessarily extend to customers who also fulfil one or more of the other CoR roles.

Second, the article teases out the underlying test for the primary safety duty is that a person is only responsible to the extent that they can influence or control a relevant transport activity. Many businesses in the supply chain are requiring the provision of information and records in relation to matters over which they don't have any real influence or control.

Third, the article seeks to refocus the compliance eye primarily on a party's own conduct of its own transport activities. This is because the laws impose a primary safety duty on persons in respect of their transport activities, not all transport activities of all parties within their supply chain.

So far, so good. However, before you consign all this CoR stuff to the bin and say "I am never required to make any enquiries of anyone in my supply chain in relation to their CoR compliance practices or performance", you should consider the following points.

First, the take-away from the article will not necessarily be true if you conduct additional transport activities. If you also pack, load, schedule or unload goods or operate premises at which loading/unloading occurs, you will likely have influence or control over a larger range of activities and a broader and deeper primary safety duty than outlined in the article.

Second, as a matter of risk management or corporate governance, you may have a lower risk appetite than 'base level compliance' with the CoR laws and may desire a greater level of assurance of compliance by those within your supply chain.

Third, you may be motivated by matters beyond legal compliance. For example, industry studies have concluded that transport operators who are part of robust industry accreditation schemes (e.g. Trucksafe, NHVAS, WAHVAS) are safer and subject to fewer incidents, delays and fleet down-time. That is, those operators may offer a greater level of operational/commercial dependability than others. As a customer of transport services, you may only want to engage with transport operators that can offer you such assurance and outcomes and so you may be minded to undertake detailed pre-engagement operational due diligence.

Finally, general guidance is well and good, but a final determination in Court often turns on very focused consideration of very particular circumstances. If you would prefer to avoid such an invasive judicial inquiry on 'line ball' calls, it may be better to go just that little bit further and ensure that you are indeed on the right side of the line.

So, at the risk of suffering from exactly the same difficulties involved in making high-level and all-encompassing statements about what is required... our advice (in a nutshell) for transport customers is:

  • satisfy yourself that your transport providers are aware of their CoR safety obligations and have in place systems to manage those risks – one way to do this is get them to tick a 'yes, we have compliance systems' box or put a clause in your contract that says that they must do so. However, this is rather passive and can't blindly be relied on in isolation. A more assured approach is to ask for some evidence of those systems, e.g. the underlying CoR compliance policy or accreditation scheme enrolment – but not every compliance record
  • periodically observe during the conduct of your transport activities that those systems are being used and are effective, e.g. make checks to ensure that loads aren't arriving obviously poorly restrained or with evidence of load shift
  • keep a watching brief for those 'flashing red light' warning signs, e.g. a truck that arrives on a severe list due to overloading or poor load restraint or that is very obviously damaged and unroadworthy – the kind of things that cause you to go "whoa, that isn't right", even if you aren't a trucking expert.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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