Note: This information is intended to provide general guidance only and does not constitute legal advice. We encourage you to obtain independent advice about your legal obligations. If you have any feedback on the information provided please contact us at info@nhvr.gov.au

This regulatory advice provides guidance to local governments who undertake functions which make them a party in the Chain of Responsibility (CoR) under the Heavy Vehicle National Law (HVNL).

Who is this advice for?

• Local governments whose functions make them CoR parties and their executives.

Who is a party in the Chain of Responsibility?

The Chain of Responsibility (CoR) is the part of the HVNL that makes off-road parties responsible for the safety of heavy vehicles on the road. It refers to 10 defined parties in the Chain of Responsibility, each of which has a primary duty, under HVNL section 26C to ensure the safety of their transport activities, so far as is reasonably practicable.

Any organisation, including a local government, will be a party in the CoR if they, or their employees on their behalf, perform any of the following CoR functions:

1. employ a heavy vehicle driver (employer)
2. engage someone to drive a heavy vehicle under a contract for services (prime contractor)
3. direct the control and use of a heavy vehicle (operator)
4. schedule the transport of goods or passengers in a heavy vehicle, or schedule a driver’s work and rest hours (scheduler)
5. consign goods for transport by a heavy vehicle (consignor)
6. receive goods delivered by a heavy vehicle (consignee)
7. pack or assemble goods for transport in a heavy vehicle (packer)
8. manage premises where five or more heavy vehicles are loaded or unloaded each day (loading manager)
9. load a heavy vehicle (loader)
10. unload a heavy vehicle (unloader)

In the event of a primary duty breach the entity and its executives, rather than an individual employee, are most likely to be held responsible. This is because they have the greatest capacity to control or influence the risk.

CoR functions performed by local government

Local governments are responsible for the delivery of a range of vital services for people and businesses. Many of these services, such as waste management and the construction and maintenance of roads and recreational facilities, are done using heavy vehicles. Local governments may also send and receive goods that are transported by heavy vehicles or undertake other activities using heavy vehicles.

Examples

• Employing or contracting drivers of heavy vehicles for the collection of waste, to undertake road construction and road maintenance, to undertake maintenance work on parks, sporting grounds and campgrounds, and to carry out other transport activities including transporting people (Employer/ Prime contractor).
• Directing the control and use of heavy vehicles, including buses. For example, directing an employee to use a heavy vehicle to deliver equipment or plant to a worksite (Operator).
• Scheduling the transport of goods or people in heavy vehicles, including buses and/or rostering heavy vehicle drivers. For example, rostering an employee to carry out waste collection using a heavy vehicle (Operator/ Scheduler).
• Transporting plant and other machinery used for road construction, road maintenance, landscaping, and other maintenance work using heavy vehicles (Operator).
• Loading and unloading of waste, livestock, or feed (at saleyards) or other goods from heavy vehicles (Loader/Unloader).
• Managing the operation of a waste management facility, depot, or saleyard (Loading manager).
• Contracting external heavy vehicle operators to undertake waste collection, road construction or road maintenance, provide bus services, or undertake other transport activities (Prime contractor).
• Arranging for goods, construction material, waste, or livestock to be transported on a heavy vehicle (Consignor/Consignee).
• Using heavy vehicles to receive or forward materials used for road construction and road maintenance, maintenance of recreational facilities, and receiving livestock and/or feed to a saleyard (Consignee/Consignor).
• Livestock effluent management at saleyards where livestock is regularly loaded and unloaded (Loading manager).

What are a local government’s legal obligations as a CoR party?

Local government and their executives are responsible for managing the risks of any transport activities they can control or influence.

This is an obligation to eliminate or minimise public risks, and a prohibition against directly or indirectly causing or encouraging a driver or another person, including a party in the CoR, to contravene the HVNL. CoR parties and their executives, should be aware that they remain a CoR party even when their transport activities are contracted, or subcontracted, to another party.

What are the legal consequences?

If a local government is a party in the CoR and it fails to eliminate or minimise public risks so far as is reasonably practicable, then it may be in breach of its primary duty. If a breach is proven, the law provides sanctions against an entity and its executives, ranging from education and improvement notices to prosecution.

It is important to understand that the primary duty is based on a positive duty to ensure safety. This means that a CoR party can be prosecuted for a HVNL breach if that party does not take proactive steps to perform its duty, even if an incident or crash does not occur.

What does a local government have to do to meet its primary duty?

Local governments and their executives should be familiar with obligations under Work Health and Safety law (WHS) and should already have systems in place to manage risks to the health and safety of employees and other persons. The HVNL primary duty is similar to the duty under WHS laws. It requires risk management and the standard for compliance is to do what is reasonably practicable to ensure safety.

The main difference is that the primary duty under the HVNL applies to the safety of ‘transport activities’ which is broader in scope than a duty to ensure safety at a workplace. Local government’s transport activities include anything that it does - or doesn’t do - that is associated with the use of a heavy vehicle on the road and extends to any activities which local government has control or influence over, including outside their workplace or local government area (LGA). For example, managing the fatigue of a bus driver operating a bus which has been scheduled to provide services travelling beyond the LGA.

Compliance with the primary duty can be approached in the same way as WHS obligations, using the same risk management tools and safety systems. Local government should determine the full scope and nature of its CoR functions. Then it should identify the hazards and risks associated with those transport activities, consider whether those risks can be eliminated, and if not, then it should consider which control measures are reasonably practicable to minimise the risks associated to an acceptable level.

Reasonably practicable↓ means what should be done to reasonably practicable ensure safety, weighing up all the relevant factors. It is a question of proportionality – ensuring the measures used to eliminate or minimise the risks are proportionate to the likelihood and degree of harm. What will be considered reasonable will depend on individual circumstances.

The principle of shared responsibility

Many factors contribute to the overall safety of transport activities, but no single party controls all the factors. Actions taken and decisions made well before a driver gets into a vehicle can all have an impact. This is why a holistic approach is necessary to ensure safety, with different parties contributing different elements.

When multiple CoR parties are responsible for the same risk, they may do different things to ensure safety depending on their capacity to control or influence the transport activity and associated risks. Each party must achieve the same standard – to ensure safety so far as is reasonably practicable. This shared responsibility is a key principle applying to the primary duty.

The level and nature of responsibility

The level and nature of responsibility and what is required to ensure safety and meet the primary duty will depend on a range of factors. These include the kind of transport activities undertaken and the degree of control or influence a CoR party has to eliminate or minimise the associated risks.

For example, waste collection that is contracted to a third party: local government can control the routes and how often and when the rubbish collection happens. While local government may not control the regularity that heavy waste vehicles are serviced by the third party or the fatigue management of contracted drivers, it may have some capacity to influence these factors by working with other CoR parties.

Working with other CoR parties

As a rule, CoR parties have direct control or influence over their own premises, equipment, workers, policies and procedures. However, CoR parties also influence how other parties behave, through communication, collaboration, negotiation and contractual terms.

Known hazards and risks should be communicated to other relevant CoR parties, as well as taking steps to understand what other parties are doing to ensure safety for shared transport activities. All CoR parties have a shared responsibility to ensure safety, but this does not diminish the duty of any of them. Each party is still required to ensure safety, so far as is reasonably practicable, for the transport activities they can control or influence.

Open lines of communication between CoR parties establishes:

• clarity of responsibilities
• mutual expectations
• cross reporting
• contingencies
• a clear escalation process to ensure corrective action is taken in a timely manner.

How does a CoR party manage the hazards and risks associated with their transport activities?

One of the most effective ways for CoR parties in the heavy vehicle supply chain to manage the safety of their transport activities is to adopt and actively use a Safety Management System (SMS) as part of their everyday business.

An SMS is a systematic approach to managing safety which, once implemented, will help CoR parties identify how to ensure the safety of their transport activities, so far as is reasonably practicable.

As part of the risk management process, CoR parties should:

• identify hazards associated with their transport activities
• assess the risks associated with those hazards
• identify and implement control measures to eliminate or minimise those risks
• review the effectiveness of control measures, either periodically and/or post any incident, to ensure they remain effective.

General controls that may help manage the risks associated with most transport activities

For local government risk management is undertaken across a range of functions. Some examples of how local government and their executives can manage the hazards and risks associated with their transport activities and comply with HVNL obligations may include:

• Ensuring that all heavy vehicles used by local government are fit-for-purpose, meet applicable vehicle standards, and are maintained and serviced in accordance with manufacturers recommendations.
• Ensuring drivers and other workers are fit for work.
• Employing suitably qualified and competent drivers and workers.
• Providing appropriate training to drivers and other workers to enable them to work in a safe and efficient manner.
• Managing fatigue risks of drivers, including contracted drivers, through appropriate rostering/scheduling, encouraging open communication, empowering drivers to self-report when feeling fatigued and encouraging drivers to take regular breaks and rest when needed.
• Rostering/scheduling of heavy vehicle movements with a driver safety mindset including when scheduling waste collection and bus services.
• Expressly forbidding drivers from engaging in unsafe or illegal driving behaviours, and not indirectly encouraging those behaviours. For example, do not incentivise drivers by allowing them to finish early if they complete their work more quickly as this may encourage speeding, driving when fatigued, or poor decision making that could impact safety.
• Ensuring that when contracting services to undertake heavy vehicle transport activities on behalf of local government, contractors are suitably qualified and reputable service providers.
• Providing specific expectations to contractors on things like:
  • driver fatigue and work/rest hours
  • drug and alcohol management policies
  • loading plans to assist them to safely carry out transport activities in accordance with risk management strategies.
• Working and regularly communicating with contractors to mutually implement controls to manage hazards and risks.
• Communicating policies and procedures to drivers, contractors, and other workers to ensure safe work practices for carrying out heavy vehicle transport activities.
• Undertaking periodic reviews of relevant policies and procedures, reviewing effectiveness following incidents and near misses and updating policies where deficiencies are identified.

Specific controls for road construction, road maintenance, and maintenance of recreational facilities

• Implementing loading plans for transporting plant machinery and other materials to ensure they are appropriately restrained.
• Providing load restraint training to ensure that loading practices are carried out safely and in accordance with loading plans and HVNL loading requirements.
• Providing periodic driver training.
• Having a system in place to ensure compliance with mass, dimension and loading requirements.

Specific controls for operation and management of saleyards

• Providing drivers access to rest areas at saleyards.
• Ensuring that scheduling of heavy vehicles transporting livestock and feed considers:
  • driver fatigue and work/rest hours
  • the safety of drivers, loaders, unloaders, and other saleyards employees
  • welfare of livestock and effluent management.
• Ensuring that effluent disposal facilities are operational, available, and properly maintained.
• Ensuring sufficiently skilled staff undertake livestock mustering, yarding, and loading to minimise stress on livestock.
• Monitoring livestock loading density to maximise stability and comfort of livestock and ensure compliance with the HVNL, loading requirements, while also remaining mindful of other relevant legislation such as animal welfare laws.
• Providing truck washing facilities to clear effluent spills. More information on effluent management can be found in the Managing Effluent in the Livestock Supply Chain RICP (PDF, 4MB).
• Managing yarding times to minimise unloading delays.

More information on managing risks associated with transport activities can be found in our Regulatory Advice.

Resources

Safety Management System (SMS)

Management of safety risks can be more effective with the adoption, development and active use of a Safety Management System (SMS).

An SMS is a systematic approach to managing safety, including the necessary organisational structures, accountabilities, policies and procedures, which is integrated throughout the business wherever possible.

An SMS can help you:

• provide a safer work environment for your employees, customers, contractors and the public
• manage your safety duties under the HVNL
• demonstrate your ability to manage risk and ensure safety
• become an employer of choice and preferred supplier to customers
• make informed decisions and increase efficiency
• allocate resources to the most critical areas that have an impact on safety
• reduce costs associated with incidents and accidents.

Regardless of the size of a business, an effective SMS can help your business have an appropriate safety focus and comply with its duty to ensure the safety of its transport activities, so far as is reasonably practicable.

Targeted guidance, tools and information regarding the development and implementation of an SMS is available in the 9 Step SMS Roadmap.

Understand the HVNL and your primary duty

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