Safety experts clarify CoR duties and compliance stepss unreasonable: FWC

Former Roads and Maritime Services NSW general manager of compliance operations Paul Endycott and Kingston Reid partner John Makris stressed, in a Zenergy Group webinar on the Heavy Vehicle National Law yesterday, the importance of organisations understanding the depth of their responsibilities for risks in their transport supply chain.

The WHS-style chain of responsibility (CoR) provisions of the HVNL were introduced, in October 2018 (see related article), to help regulators block conduct in the supply chain that rewards transport operators for taking risks, Makris said.

“People want to contract out their responsibilities and we all know that you can’t do that,” the WHS, environmental and heavy vehicle compliance lawyer said.

As reported by OHS Alert, the National Heavy Vehicle Regulator launched its first prosecutions under the new CoR provisions early this year, against Victorian company N Godfrey Haulage Pty Ltd and its director over fatigue management breaches (see related article).

“How we affect someone’s behaviour depends on where you sit in the chain,” Makris said.

For example, a business involved in loading and unloading can influence how long a truck is docked, how the load goes onto the vehicle and how it is restrained, he said.

Control is more clearly defined in safety laws as an organisation’s ability to compel corrective action, he added.

Compelling corrective action in a heavy vehicle context involves having in place steps for specific situations, like when a truck arrives overloaded, drivers appear impaired or a vehicle has visible maintenance issues.

“That’s where the [CoR legislation] is really going,” Makris said.



“Everyone is in it together. You’ve got to work out where you are in [the chain] and then you’ve got to do things proactively to address the things that you can control and influence,” he said.

Fatigue and formalising CoR arrangements

Endycott, who is now Zenergy’s associate director and leads its CoR practice, shared examples of organisations that have dealt with regulators over identified supply chain safety failings, and went on to review and implement positive CoR management practices.

One manufacturing and distribution business received improvement notices after its transport operator’s subcontractor came under scrutiny for fatigue breaches.

“The regulator issued an improvement notice demanding that the [organisation] take control, through certain requirements, of the transport activities all the way down to the subcontractor,” Endycott said.

“Perhaps you might say to yourself, ‘How the hell [as a] manufacturer do I control what my operator or principal operator does with his subcontractors?'” he said.

In this case, the business undertook a discovery of how far its control extended over transport activities as a scheduler, consigner, loader and packer, and found it had been unaware of the true extent of its control, Endycott said.

Through a co-operative approach, the principal transporter’s activities were reviewed and it was agreed they needed to be managed more formally, beyond the traditional handshake and “pat on the back” approach, he said.

“We can all have a handshake and we can all have a pat on the back, but let’s get compliance and safety to the fore of our transport activities,” he said. “What was discussed [in this case] was insisting on and strengthening [the] contractual arrangements.

“There needs to be the ability to provide for the compliance assurance conditions to be asked for in these contractual arrangements.”

Conditions adopted by the manufacturing and distribution business involved risk assessments and controls, compliance systems, fleet telematics, monitoring and driver training, Endycott said.

In another case, an infrastructure and construction business was put on notice after allegations involving falling loads and defective vehicles were levelled at its transport operator, and it was found the parties’ vague pre-CoR contractual arrangements were failing, he said.

The business subsequently developed CoR management plans for all transport contractors, stating compliance assurance conditions for maintenance regimes and the ability to validate trucks’ safety by reference to accepted industry standards.



Originally posted on OHS Alert