In the current Heavy Vehicle National Law (HVNL), ‘business practices’ are only expressly addressed in ss 204 and 230, under which employers, prime contractors and operators of a heavy vehicle must take all reasonable steps to ensure their business practices do not cause a driver to exceed the speed limit or drive while fatigued.
The reference to business practices was included in the legislation to recognise the fact that businesses were unlikely to outright direct drivers to speed or drive while fatigued, but their business practices could still cause, require or influence drivers to do so.
For example, if employers set unrealistic journey times to maximise the number of journeys during a day, drivers may be forced to speed or drive while fatigued to complete all scheduled journeys, even though they were not given an express instruction to do so.
So, the controls around business practices were implemented to remove the prospect of anyone relying on this plausible denial (‘I never told them to speed…’).
The business practices provisions under the current HVNL also only go so far – you cannot have in place business practices that cause speed or fatigue non-compliance. However, there is no express requirement to have in place business practices that ensure compliance (although businesses that did not were heavily criticised when taken to court).
The position under the New HVNL
As time has gone by, the regulators have recognised that business practices can also adversely affect the performance of other Chain of Responsibility (CoR) duties beyond just managing speed and fatigue. They have also recognised that positive business practices (rather than just the absence of negative business practices) are an essential compliance tool.
As such, the new HVNL (which begins on 1 October 2018) requires that every party in the Chain for a heavy vehicle must ensure, so far as reasonably practicable, the safety of the party’s ‘transport activities’.
Transport activities is defined to include ‘business practices’ and the actual physical conduct of a transport function, e.g. packing, consigning and transporting.
So, to comply with the new primary duty, businesses must:
- have in place compliant business practices; and
- conduct themselves in a compliant manner when they are performing any transport task.
4 Steps to compliance
- Business practices should be written down and stored
It is essential that you write your business practices down and/or store them electronically so that you can produce them to show to any investigator and/or court. Businesses that try to convince a prosecutor and a judge that ‘it’s not written down, but we always ensure that we do X, Y and Z’ do not usually get very far.
- Keep written records of compliance
Likewise, it is important that you keep written records of your compliance with your business practices, e.g. copies of consignment notes, and driver declarations with details of mass and load restraint checks, copies of internal audits and evidence of follow up and closing out any identified gaps. These materials prove you are actually performing in accordance with your business practices.
- Ensure compliance with other parties in the Chain
As part of your due diligence and to discharge your duty to exercise control or influence over other parties in the Chain, you need to make reasonable enquiries to ensure that the other parties in your heavy vehicle road supply chain also have in place all required business practices in their businesses. Without being required to run their business for them, you are required to look over their shoulder and ensure that you are reasonably satisfied that the people with whom you deal are aware of their obligations and compliant in their operations.
- Review and respond to CoR incidents
Finally, for any CoR incident or near-miss which arises in your supply chain, you need to consult with any other parties concerned or involved in the incident to determine the cause, and mutually discuss a suitable response or remedy to ensure that similar incidents do not happen in the future.
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