Regulatory Advice - Managing the risks of transporting freight in shipping containers

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 on identifying and managing the safety risks of transporting freight in shipping containers by road and obligations under the Heavy Vehicle National Law (HVNL).

Who is this advice for?

This regulatory advice is intended for:

  • consignors
  • consignees
  • port facilities
  • freight forwarders
  • transport operators
  • other parties in the Chain of Responsibility (CoR) and their executives.

What are my legal obligations?

Under the HVNL section 26C, each party has a primary duty: to ensure the safety of transport activities, so far as is reasonably practicable.

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.

Under the HVNL section 26D, executives of a businesses that are a party in the CoR have a distinct duty: to exercise due diligence to ensure the business complies with its primary duty.

Note: Transport activities↓ includes all activities and business processes associated with the use of a heavy vehicle on a road.

What are the legal consequences?

If your business 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 a company and its executives, ranging from education and improvement notices to prosecution.

What are the hazards and risks?

Freight in shipping containers that has not been safely packed and restrained can result in the following hazards:

  • Unbalanced loading - Incorrectly positioned loads or loads with a high centre of gravity can affect a heavy vehicle’s stability, steering and braking performance. Loads that are not balanced across and along the container can make the vehicle unstable and increase the rollover risk.
  • Inadequate load restraint - Poorly restrained freight can move and slide within the container when a heavy vehicle brakes and navigates bends and round-a-bouts. The shifting of freight inside the container can cause the vehicle to become unstable and increase the rollover risk.
  • Safety risks for unloaders - There is a risk of death or serious injury when unloading containers where freight has been poorly restrained or has shifted during transit. The freight could fall when the container is opened and strike or crush workers in the immediate vicinity. 

The potential risks resulting from these hazards may include:

  • risks to the safety and wellbeing of employees and the public
  • risks of damage to infrastructure (including business owned and public infrastructure)
  • financial risks because of disruption to business operations.

Why is it important to manage the hazards and risks?

  • Unsecured or inappropriately packed freight in shipping containers transported by road poses a significant safety risk to drivers, workers, other road users and the community.
  • Heavy vehicles transporting freight in shipping containers are significantly more likely to be involved in safety incidents than vehicles carrying general freight[1].

Who has a duty to manage safety risks?

If you consign, pack, load or unload goods, you have the greatest ability to influence and manage the risks associated with transporting freight in shipping containers. These activities make you a CoR party and his mean you have a primary duty under the Heavy Vehicle National Law (HVNL to manage the risks of unsecured or inappropriately packed shipping container freight.

Note: Your responsibility for a transport activity depends on the function you perform, not your job title.

In this context:

  • pack means loading the contents into the shipping container before it’s loaded onto the heavy vehicle
  • load means loading the shipping container onto a vehicle
  • unload means unloading the container from the vehicle, not its contents.

Because of their activities, importers, exporters, manufacturers, freight forwarders, freight brokers, shipping agents, container terminal operators, stevedores, freight consolidation or deconsolidation providers are considered parties in the CoR. They have a duty under the HVNL to ensure safety by eliminating or minimising public risks.

Consignors and consignees have the best opportunity to influence how shipping containers are packed and loaded at the point of origin through contractual and commercial relationships. They must communicate with suppliers, manufacturers, packers and loaders to ensure packing, loading and freight restraint processes are carried out in a way that ensures safety and meets the requirements in the HVNL.

At a minimum, consignors and consignees - and all other parties in the CoR - should undertake a risk assessment considering the risks of transporting freight in shipping containers and the best controls for mitigating these risks.

Executives should be fully aware of, and endorse or approve, the final risk assessment.

How can I manage these risks?

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.

Each party in the CoR has a role to play in managing shipping container loading risks. What is required for each party may be different to meet the primary duty.

Consignor/Consignee

  • Share loading plans that provide clear guidance for packers to ensure loads are placed and restrained appropriately to meet safety and HVNL requirements
  • Clearly describe expectations for the management of safety risks in contracts
  • Train staff to perform the task assigned to them
  • Tailor communications and documentation to the language of the intended audience
  • Have assurance processes in place to monitor and report on loading plan processes, including suggestions to modify or amend plans when improvements are needed

Transport operators

  • Ensure policies, procedures and training inform workers about how to deal with shipping containers should a safety risk be identified
  • Maintain a register of load shift occurrences and monitor risk controls to ensure the ongoing safety and compliance of transport activities

Packers/Loaders

  • Pack the container following the supplied loading plan or documentation
  • Do not load additional items in the container beyond what is stated in the loading plan as this may cause mass or load restraint issues, including rollover risk
  • Communicate any issues identified with the loading plan with the consignor or consignee
  • Monitor, record and report poorly packed and restrained loads to the responsible party

Container terminal operators, stevedores, freight consolidation or deconsolidation providers

  • Maintain effective communication and ensure other parties in the CoR are informed when a safety risk is identified, and provide reasonable assistance and cooperation
  • Provide a safe location where drivers or other workers can safely inspect the load in the container when needed*
  • Ensure workers report any container damage they suspect is caused by poorly secured loads
  • Have a process in place to report any discrepancies identified between the declared and actual mass of the container

*While acknowledging that consignors and consignees have considerable influence on how a shipping container is loaded and packed, the risk of vehicle rollover can be reduced if a safe location is provided within the immediate area of the shipping container loading facility. In this safe location, freight can be checked or adjusted should the driver or another worker suspect freight inside the container is not secured or safely packed.

All CoR parties

Maintain clear communication with other parties in the chain to:

  • agree and specify how shipping container freight should be safely packed and restrained
  • identify existing and emerging safety risks
  • promote continuous safety improvements
  • include these agreements and plans in the contract documentation.

Note: The contents of freight imported from overseas may be treated with fumigants and other hazardous chemicals that are toxic to humans. There could be a serious health hazard if employees are exposed during unloading. A container should only be opened after conducting air quality testing. If testing facilities are not available or testing is impracticable containers should be opened and allowed to vent for a period of time before workers enter. Workers should only enter containers arriving from overseas after taking all reasonable precautions and must always be provided and use appropriate personal protective equipment.

More information can be found in Safe Work Australia: Managing risks when unpacking shipping containers - Information sheet.

Resources

Master Code

Guidance and direction on how to effectively introduce a risk management process within your business can be found in Section 3 of the Master Code. 

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 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.

Structured information and resources including quick-guide documents, templates, worked examples and toolbox talks to guide you through each step of developing an SMS, implementing it with your management and staff, and extracting safety are available in the 9 Step SMS Roadmap.

Load Restraint Guide

The basic safety principles that should be followed when designing a load restraint system for safe and efficient load transportation can be found in the Load Restraint Guide.

If the information contained within the Load Restraint Guide does not provide the clarity needed, seek professional advice from a qualified person with appropriate skills and experience, such as a professional engineer registered with a professional registration body. They can assist in developing a load restraint system that complies with the HVNL loading requirements and provide certification of the load restraint system.

Loading requirements and loading performance standards are defined in the Heavy Vehicle (Mass, Dimension and Loading) National Regulation (Schedule 7).

Understand the HVNL and your primary duty

Under the HVNL section 26C, each party in the CoR has a primary duty to ensure the safety of its transport activities, so far as is reasonably practicable. This duty includes 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.

Transport activities

Transport activities include all the activities associated with the use of a heavy vehicle on a road. It includes safety systems, business processes such as contract negotiation and communication and decision making, as well as the activities normally associated with the transport and logistics sector such as training, scheduling, route planning, managing premises, selecting and maintaining vehicles, packing, loading and unloading.

So far as is reasonably practicable

So far as is reasonably practicable means an action that can reasonably be done in relation to the duty, considering relevant matters such as:

  • the likelihood of a safety risk or damage to road infrastructure
  • the harm that could result from the risk or damage
  • what the person knows, or ought reasonably to know, about the risk or damage
  • what the person knows, or ought reasonably to know, about the ways of removing or minimising the risk, or preventing or minimising the damage
  • the availability and suitability of those ways
  • the cost associated with the available ways, including whether the cost is grossly disproportionate to the likelihood of the risk or damage.

More information can be found in Regulatory Advice - Reasonably practicable.

Executives of businesses that are parties in the CoR have a distinct duty under the HVNL section 26D to exercise due diligence to ensure the business complies with its duty to ensure the safety of its transport activities.

Due diligence

Exercising due diligence includes taking reasonable steps to:

  • acquire and maintain knowledge about conducting transport activities safely
  • understand the nature of the business’s transport activities, including the hazards and risks associated with those activities
  • ensure the business has, and uses, appropriate resources to eliminate or minimise the hazards and risks associated with its transport activities
  • ensure the business has, and uses, processes to eliminate or minimise the hazards and risks associated with its transport activities and that information about hazards, risks and incidents is received, considered and responded to in a timely way.

Examples of executive due diligence activities include:

  • collecting information about incident rates to see if the safety management plan is working
  • participating in industry-led forums and safety seminars
  • ensuring work procedures are being followed and result in improvements in safety
  • ensuring safety incidents are responded to and investigated
  • implementing learnings from the investigation of safety incidents
  • ensuring that sufficient resources are allocated to enable implementation and management of the business’s risk management activities.

References

  1. ↑National Transport Insurance (NTI), 2018 unpublished data.

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