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Operator or not? Who’s in control?

July 30, 2015

Although chain of responsibility provisions make it clear that any business with designated duties in the heavy vehicle supply chain can face exposure for a breach of the Heavy Vehicle National Law (HVNL), in practice there’s often a prominent target for investigators.

I’m talking of course, about the operator.

The Heavy Vehicle National Law defines an operator as follows:

“A person operates a vehicle or combination, and is an operator of the vehicle or combination, if the person is responsible for controlling and directing the use of…the vehicle…or…the towing vehicle in the combination”

Other CoR parties – consignors and consignees, loading managers – have important and non-delegable duties. But given their central role, it’s operators who face the most pressing questions when something goes wrong.

But what if there’s confusion about who the operator was?

An over-dimension load – but who should be penalised?

A useful illustration of how the courts will resolve this came about in the Western Freight Management case.

Western Freight Management had been fined for operating heavy vehicles over the specified length dimension limits. It appealed the fine, arguing that the magistrate had made a mistake in treating it as the operator.

At the time the dimension breaches were committed, Western Freight Management had entered into an agreement with Star Track Express, a door-to-door freight transport business.

It was agreed that Western Freight would provide “linehaul services on specified routes” for Star Track. But Western Freight argued Star Track was the real operator.

So what did the agreement say? It confirmed that Western Freight would:

  • be responsible for all contractors;
  • ensure a number of CoR matters, including compliant speed and rest breaks; and
  • take responsibility for vehicle maintenance and roadworthiness.

Western Freight argued that as Star Track still controlled the provision and loading of trailers, destinations for the linehaul units, and the specification of routes. It also set requirements about what colours and decals were to be displayed, and what uniforms workers should wear.

Court: control and direction of CoR matters the key

The Supreme Court of New South Wales didn’t see the question of setting destinations or uniforms as having any direct bearing on the central question – who had responsibility for controlling and directing the operations of each vehicle?

It affirmed that it was Western Freight. It clearly had the authority to ensure its employees checked the dimensions of different combinations, and take appropriate steps if the dimensions weren’t compliant.

The fact that there was co-ordination between the two companies of supplying and loading trailers did not shift the responsibility of being ‘operator’ away from Western Freight.

What to take away

The case confirms that the courts will take a pragmatic approach to who is an operator for CoR and HVNL purposes. In other words, ancillary contractual matters about livery and uniforms won’t change the reality of who’s directing matters on the road.

This wouldn’t mean a party like Star Track that set routes and destinations would be immune from CoR requirements.

If it incentivised or encouraged a contractor to breach speed and fatigue management rules, or required them to take routes that would violate mass limits, it would face enforcement or prosecution itself.

For more information on the loading requirements of different CoR parties, click here to sign up for a free 30-day trial of CoR Adviser.

Until next time,

J.Nunweek signature
Joseph Nunweek

Editor, CoR Bulletin