Chain of Responsibility Legislation

Compliance & Enforcement

FREIGHT & LOGISTICS COUNCIL OF WESTERN AUSTRALIA

Introduction: Minister Buswell announced on the 1st March, 2011, to a WARTA hosted Industry Forum, that Western Australia would be introducing the Compliance & Enforcement Legislation very shortly.

Background: This follows the previous Transport Minister’s meetings with those who contributed to the feedback on the proposed Legislation. Minister O’Brien advised that once Government had evaluated the comments the process would commence.

Current Situation: Last weekend at the Australian Transport Council (ATC) meeting in Alice Springs the various State Transport Ministers’ agreed to bring forward the timetable of the National Heavy Vehicle Regulator (NHVR).

What this means, in simple terms, is that 1st July 2012 will see the NHVR in place and working.

What it doesn’t state is that C&E Legislation will be taken out of our (Western Australian) hands and we will have to work under the National Legislation; if we do not, firstly, introduce our WA Legislation!

Therefore, it is imperative that we MUST encourage our Minister and the Department to get the proposed Legislation into Parliament and ultimately implemented – so that we can get this important Legislation out into Industry before we are gazumped by the NHVR!

Compliance & Enforcement (C&E) Legislation {commonly known as Chain of Responsibility (CoR)} - Compliance will become the catch cry throughout the Western Australian Transport & Logistics Industry, very soon!

It is important to note that the proposed Laws will affect other wide ranging links in the Chain involved in the road transport and logistics industry including:

Employers and Company Directors;
Loaders and Schedulers;
Shippers and Freight;
Exporters and Importers;
Retailers and Wholesalers who receive or consign goods;
Manufactures; and
Farmers and those involved in other primary industries.

The main features of the Legislation are:

The “Chain of Responsibility”:

Traditionally the law singles out drivers and operators for breaches of road laws.
However, the conduct of other people in the chain, such as customers, loaders and packers, often has a significant influence on road safety.
Under the new chain of responsibility provisions - everyone will have a responsibility to take all reasonable steps to ensure safety on the road.

Absolute Liability and a “Reasonable Steps” defence:

Many offences will carry higher standards of liability, including absolute liability;
The only defence available in most circumstances will be that you took all “reasonable steps” to prevent a breach;
One way of demonstrating that you took “reasonable steps” would be to comply with an Industry Code of Practice registered by the Department.

Corporate and Manager’s Liability:

A five times corporate multiplier for offences committed by a body corporate;
Personal Liability for Directors, Company Secretaries, Partners and Senior Managers.

A wider range of innovation penalties:

Penalties for making a profit out of a road law breach;
Powers to suspend or prohibit a person/business from being involved in road transport and the logistics industries;
Breaches ranked according to safety risk.

Stronger Enforcement Powers:

Expanded powers to enter, search and inspect vehicles and premises;
Comprehensive powers to direct people involved in the transport of goods;
A broad power to require reasonable assistance from any person involved in the transport of goods or passengers.

Container Weight Declarations:

There will be specific provisions dealing with overweight shipping containers.
All consignors who use containers will be required to complete a “container weight declaration” and will be liable if that declaration is inaccurate or false.

Therefore, those included in the “Chain of Responsibility” are, for example: Consignors; Loaders; Packers; Drivers; Operators; Receivers; Employers; Company Directors; Partners and Senior Managers.

The key features of the proposed Legislation could be as follows:

Introduction of the “Chain of Responsibility” to extend legal liability of road law offences to all parties who by their actions, inactions or demands exercise control or influence conduct on the road;
Adopting nationally consistent enforcement powers that reflect laws in related areas such as Occupational Health, Safety and Welfare and Environmental Protection;
Implementing extensive enforcement capabilities to foster a culture within the heavy vehicle industry;
Categorisation of mass, dimension and load restraint offences into minor, substantial or severe, depending on the level of risk and impact on safety or infrastructure;
Introduction of “reasonable steps defence”.

Your obligations within “Chain of Responsibility”:
1. Legal Compliance and Chain of Responsibility;
2. Occupational Health & Safety, Risk Assessment & Compliance;
3. Fatigue Management:
a. Including scheduling, time slot flexibility, waiting time, queuing, loading & unloading.
4. Communication;
5. Safe Loads:
a. Preparation, restraint & containment, mass, container weight declaration & dangerous goods.
6. Speed Management;
7. Equipment;
8. Driver Health, Drug & Alcohol Free Workplace;
9. Sub Contractor Assessment
10. Operational Infrastructure.

Remember: It is not the problem that is the problem! It is the solution, which is the problem!

To all situations there is a solution and we may have that solution!

The Freight & Logistics Council of WA and the WA Ports Operations Task Force have been discussing, with Industry, the introduction of the Compliance and Enforcement Legislation.
The issues that we are already experiencing, when dealing with businesses in the eastern states, is increasing and now with the bringing forward of the NHVR to July, 2012 action is now required, as a matter of urgency, if we wish to retain ownership of this Western Australian Regulations.

Are you compliant?
Do you know if your business is compliant!
Do you want to find out?
START NOW - become Compliant!

Conclusion

For more information contact WARTA on 9355 3022.

Ian K. King
26th May, 2011.