As we’ve let you know in our recent editions of COR Adviser and COR Bulletin, Australia’s transport ministers (both Federal and State) have agreed that it’s time for changes to the current chain of responsibility legislation.
The one on everyone’s lips is a likely extension of CoR duties to vehicle standards and roadworthiness.
It’s a simple enough concept to understand – if you’ve got the power to make sure a heavy vehicle is well-maintained and fit to be on the road, you should face the consequences if you fail to use that power.
But less understood are the wider changes that the National Transport Commission (NTC) are investigating with the blessing of officials. One way or another, it looks like existing CoR obligations will be formed to focus on primary duties.
What is the primary duties approach?
If you’ve got CoR obligations, no doubt you’re aware of your workplace health and safety obligations as well. (And you can always brush up on those with our free Health & Safety Bulletin)
But you’ll at least know that workplace health and safety law creates legal obligations for ‘persons conducting a business or undertaking’ (PCBUs).
Any PCBU has ‘the primary duty of care to ensure the health and safety of workers while they are at work in the business or undertaking’, and furthermore, that any work carried out ‘does not carry risk to the health and safety of others’.
Of course, that’s a pretty broad concept, but it’s also an easy one to understand. A PCBU could be an individual or a company – but the buck stops with them. They have a responsibility to ensure health and safety, and they can’t palm it off to someone else.
A number of industry stakeholders have argued that an overarching primary duty of care to ensure the safety of individuals on the road would make their responsibilities clearer and easier to meet.
Primary duties for some, specific duties for others
At present, the Heavy Vehicle National Law contains a number of differing constructions and approaches to CoR to cover the diverse organisations, individuals and businesses who have road safety responsibilities.
These can be challenging to understand – in fact, the complexity is a big part of why we decided to set up a dedicated CoR newsletter and legal helpdesk.
But the NTC believes that moving to primary duties will help develop an “outcomes-based” approach – that is, an approach where every party involved in CoR (including regulators) are proactively focused on reducing the human and financial cost of heavy vehicle road accidents.
This contrasts with a less flexible, prescriptive approach of complying with several different obligations on a provision-by-provision, chapter-by-chapter basis.
In a discussion paper published this month, the NTC proposes:
- Including a new primary duty on operators, prime contractors and employers to ensure safety, as well as their executive officers, and;
- Role-specific duties for schedulers, consignors, consignees, loading managers, loaders and packers, and unloaders that clarify their existing obligations.
The new primary duty would ideally replace existing CoR requirements placed on operators, prime contractors and employers.
When will the changes happen?
Detailed policy recommendations arising from the NTC’s discussion paper, as well as the NTC’s concurrent Heavy Vehicle Roadworthiness Review, will be considered by ministers in November 2015.
And if ministers agree to the changes proposed, a draft Bill to amend the NHVL would come back to them to in May 2016.
So the road ahead is long, and although the NTC has identified room to improve the current law, you still need to comply with it. In the meantime, we’ll be telling you how you can do so – now, and into the future.
Subscribers to the monthly CoR Adviser can read about their rights if directed to provide information or documents under the HVNL in next month’s issue. Click here to sign up for a free 30-day trial of CoR Adviser.
Until next time,
Editor, CoR Bulletin