Chain of Responsibility Compliance Solutions for Contemporary Australian Companies. A White Paper by CoR Australia a division of Urban Global

Transcription

1 Chain of Responsibility Compliance Solutions for Contemporary Australian Companies A White Paper by CoR Australia a division of Urban Global

2 Introduction Welcome from Steven and Peter, directors of CoR Australia, one of Australia s leading Chain of Responsibility consulting and training firms. This short paper is designed to provide company owners, managers, industry employees, and contractors an overview of the Chain of Responsibility requirements, and a summary of some of the measures required to be compliant and to avoid penalties and fines. This information is in reference to the Heavy Vehicle National Law (HVNL) regulated by the National Heavy Vehicle Regulator (NVVR). Note: the HVNL will be adopted by the Northern Territory at a later date and Western Australia will not commence the HVNL at this time. Non-participating states have equivalent legislation in place with minor local adjustments. This White Paper is not intended to be a comprehensive audit tool for your company. It has been produced from various authoritative references, which are listed at the end of the document. Readers should refer to the latest legislation for more detailed information. Visit or call Page 2

3 White Paper Contents What Is The Chain Of Responsibility (CoR)?... 4 WHAT ARE Your CoR Responsibilities?... 4 Responsible Persons... 5 The Reasonable Steps Defence... 7 Recommendations For Companies And Organisations... 8 CoR Implementation Maturity Assessment... 9 Chain Of Responsibility Australia CoR Compliance Implementation CoR Policy Templates Appendix A Resource List: Visit or call Page 3

4 WHAT IS THE CHAIN OF RESPONSIBILITY (CoR)? The principle behind the CoR concept is simple. Any party who has control in the transport chain can be held responsible and may be made legally liable The aim of the CoR laws is to ensure that legal liability is imposed on all those in the transport chain who have responsibility for certain tasks where their actions, inactions or demands result in an offence. All parties in the road transport supply chain have specific obligations under the law to prevent a breach. Under the Chain of Responsibility, complying with the law is a shared responsibility, anybody who has control over the transport task, can be held responsible for breaches of road laws and may be legally liable. WHAT ARE YOUR CoR RESPONSIBILITIES? If you exercise control or influence over a transport task you can be held legally liable for your actions, inactions or demands, if they cause or contribute to a breach. The law requires you to take all reasonable steps to prevent your conduct from causing, or contributing to, a breach. In addition, the law also prohibits you from: making demands that you know or ought to know would cause a breach; coercing, inducing or encouraging breaches; and passing on false or misleading information that could cause a breach. Make sure that all responsible people can demonstrate that reasonable steps have been taken to prevent a breach occurring The four target areas under the CoR legislation are: Speeding; Fatigue Management; Mass and Dimension and; Load Restraint. The Chain of Responsibility laws are designed to apply to all road transport offences; ranging from minor breaches of log book recording to actions contributing to a serious spill of dangerous goods from a truck, or, at worst, a fatal accident. Visit or call Page 4

5 RESPONSIBLE PERSONS All people in the supply chain must make sure the terms of a consignment or work/employment contracts will not result in, encourage, reward, or be an incentive to break any road transport law, for a driver or other party in the supply chain. A full definition of responsible persons in the Chain of Responsibility laws is reproduced in Appendix A. Activity Drivers & Owner-drivers Who is Responsible? Entity Organisation Role Corporations Boards /Company directors Vehicle Operators Partnerships Managers Schedulers of goods or passengers and the driver Consignors, consignees, and receivers of the goods Packers, loaders and unloaders of goods Loading managers Incorporated associations Unincorporated associations Other bodies corporate Industry Role Exporters/ Importers Primary producers / Ports Importantly, the Chain of Responsibility legislation provides wide ranging powers, which allows the regulators to investigate and prosecute both along the entire supply chain and up & down individual organisations. These powers ignore contract arrangements and past practice, unless they comply with the standard. Staff Insourced / Outsourced Single / Multiple stage trips Directors Executive Manager Supervisor Consignor Scheduler Packer Loader Driver Unloader Consignee A responsible person also has specific duties to ensure that other parties in the transport chain are not misled by false information about any aspect of a consignment or journey. A responsible person must provide information about the load and about the identity of other parties in the chain when requested by authorities. The premises of a responsible person may be inspected or searched. Visit or call Page 5

6 WHAT ARE THE PENALTIES ASSOCIATED WITH COR? There are a range of fines and penalties that relate to CoR. Fines are specific to each offence and depending on the extent of the offence, generally fall into these categories for an individual and company: In June 2014 Scott s Transport were handed a record $1.25 million fine by a NSW court over repeated speeding offences. Corporate (5 times the individual fine) $15-20,000 $3-4,000 $25-30,000 $5-6,000 $50,000 $10,000 Individual $75-100,000 $15-20,000 The fines can be extended to include a fine equal to 3 times the commercial benefit received from the offence. Penalties the Regulator may issue include: Improvement notices identifying improvements a business can make to ensure compliance. Warnings for a minor breaches and where certain requirements are satisfied. Infringement notices as an alternative to court proceedings for a less serious offence. In 2014, NSW Police launched Operation Austrans, an annual initiative targeting heavy vehicle road-safety issues including fatigue, speed and drug use., As well as fines; Courts may also issue: Supervisory intervention orders. Licensing and registration sanctions. Prohibition orders. Commercial benefits penalties. Visit or call Page 6

7 THE REASONABLE STEPS DEFENCE Demonstrating that you have taken all reasonable steps to avoid a breach of the Chain of Responsibility laws is the only defence under the legislation. You can only claim a reasonable steps defence if you can show that you did not know and could not be reasonably expected to know that a breach had occurred. In order to meet the reasonable steps defence, individuals must be able to prove: As part of the supply chain I: did not know, and could not reasonably be expected to have known, of the contravention concerned AND either I took all reasonable steps to prevent the contravention; or there were no steps I could reasonably be expected to have taken, to prevent the contravention In determining whether you have taken reasonable steps, courts will typically consider: How serious the breach is; The abilities, experience, expertise, knowledge, qualifications and training of you and your staff; The nature and circumstances of the breach; What industry practices are available and in place to deal with breaches of this sort; and What measures were available and suitable for you to take? Visit or call Page 7

8 RECOMMENDATIONS FOR COMPANIES AND ORGANISATIONS The Regulators and the National Transport Council recommend that every business involved in the chain should assess their responsibilities under the CoR legislation and undertake the appropriate steps towards compliance including: Seeking legal advice. Reviewing your business practices and ensuring your work practices don t cause breaches: o Train staff to ensure they understand their obligations under CoR; o Conduct audits/spot-checks to ensure compliance (e.g.: monitoring of loading); and o Implement contingency plans to manage o Review your commercial arrangements to ensure that they don t cause your business to breach chain of responsibility laws Adopting a risk management approach. Implementing and documenting appropriate policies; procedures and workplace practices. Communicating with customers and colleagues regarding new provisions. ALC recommends that any training provided throughout a company be accredited training that adheres to the Units of Competency set out by the Transport and Logistics Industry Skills Council (TLISC) Visit or call Page 8

9 CoR IMPLEMENTATION MATURITY ASSESSMENT Using the CoR Implementation Maturity Assessment below, you can quickly identify your organisation s compliance with the CoR laws and the immediate next steps available to improve your compliance. Phase Not Yet Developed Workplace has few or no policies, procedures or tools in place Under Development Workplace has some policies, procedures and tools in place Fully Developed Workplace has most or all required CoR policies, procedures and tools in place Workplace has comprehensive CoR, HR, OHS, compliance and business improvement processes in place Work with industry body/consultant to assess audit preparation and to fill any remaining gaps/deficiencies Where are you now? Workplace has limited or no CoR, HR, OHS, compliance or business improvement processes in place Work with industry body/consultant to develop CoR Compliance frameworks for internal and external requirements Create supporting business improvement, change management processes and training Workplace has some CoR, HR, OHS, compliance and business improvement processes in place What are your next steps? Work with industry body/consultant to identify and prioritise any gaps/deficiencies in CoR compliance. Strengthen supporting CoR, HR, OHS, compliance and business improvement processes, policies and procedures Review supporting CoR, HR, OHS, compliance and business improvement processes, policies and procedures Start with CoR Australia CoR compliance review, including compliance framework design, policy & procedure template suite, and accredited training program CoR system review including compliance improvement roadmap and implementation of accredited training programs Pre-Audit review including gap analysis, suggested improvement process and implementation of accredited training programs Visit or call Page 9

10 CHAIN OF RESPONSIBILITY AUSTRALIA Chain of Responsibility Australia provides an integrated solution to support organisations to achieve Chain of Responsibility compliance. By addressing system, operational and training aspects of a business, CoR Australia is able to provide the tools, resources and expertise for an organisation to comply with the Chain of Responsibility laws. CoR Implementa-on CoR Compliance Systems CoR Training CoR COMPLIANCE IMPLEMENTATION As the CoR laws are so wide ranging, all aspects of a business and all parties in the supply chain must be compliant. As such, it is essential that all policies, procedures and work practices comply with the Chain of Responsibility laws. Engaging our expertise to review work practices and support implementation of CoR Compliance Systems, Training, and Pre-Audit reviews helps ensure that your organisation can meet the Reasonable Steps Defence. CoR Australia uses a unique diagnostic and implementation model designed to carefully cover the Chain of Responsibility using a consistent, comprehensive and timetested process. Through this process, CoR Australia can deliver customised CoR Compliance solutions that integrate with your operating practices. Visit or call Page 10

11 CoR Implementation Process Diagnose Design Understand requirements & organisational context Align organisational objectives with CoR requirements Identify business improvement opportunities Key operational processes reviewed Deliver CoR compliance systems initiated Training programs for staff and contractors Monitor Review transition & assimilation indicators Demonstrate achieving CoR Compliance CoR POLICY TEMPLATES An essential component of any CoR Compliance system is an integrated suite of policies, procedures and tools, which ensure that operations comply with Chain of Responsibility laws. CoR Australia s system is founded on a suite of templates, which underpin our consultancy and training programs, allowing a client to integrate CoR compliance throughout the different aspects of their organisation. Also available as a separate resource Click Here CoR Australia s CoR compliance implementation framework, compliance systems and training programs are built around this suite of document templates. Our approach is designed to educate employees and support them to implement CoR compliant practices within their workplace. Visit or call Page 11

12 CoR TRAINING PROGRAMS The provision of CoR training that is a nationally recognised Unit of Competency (must be provided by an RTO), to responsible people within an organisation is an essential component of a Reasonable Steps Defence. Ignorance of responsibilities under CoR is not a valid defence in a prosecution. Providing official nationally recognised training mapped to the Units of Competency released by Transport & Logistics Industry Skills Council (TLISC), through a suitably qualified RTO, is one of the reasonable steps you can take to protect your business. Not providing readily available nationally recognized RTO-based training could be seen as not taking steps that you could have been reasonably expected to take. The TLISC has released a number of training modules to address CoR Awareness and the target areas under the law. These modules are aimed at different organisational levels, to ensure the right people have access to the relevant information. Level 1 Frontline Staff Level 2 Supervisors & Managers Level 3 Managers & Directors Chain of Responsibility Fatigue Management Loading & Unloading TLIF2092A TLIF2010A TLID2004A TLIF3093A TLIF4094A TLIF3063A TLIF4064A As part of an integrated CoR Compliance solution, CoR Australia can provide a comprehensive training package, including nationally recognised training mapped to the TLISC Units of Competency. This training is provided under our RTO division, Urban E-Learning (RTO #31973). Our training programs combine online, face-to-face and distance delivery methods to provide the most efficient and effective method for organisational wide education. Visit or call Page 12

13 Executive Briefing The Executive Briefing ensures Directors, CEO, and managers are fully briefed on the National CoR and OHS obligations and compliance strategies with an in-house, The two hour briefing covers the CoR & OHS legislation, industry case studies, business implications and the role of the National Heavy Vehicle Regulator. Executive Training These executive (Level 3) courses are designed for senior managers in an organisation that is part of the Chain of Responsibility. It enables executive management to design and implement appropriate CoR policies, procedures, and tools. The training includes a suite of template CoR documents. TLIF4094A Ensure compliance with chain of responsibility unit of competency overview TLIF4064A Manage fatigue management policy and procedures Management Training These management (Level 2) courses are designed for frontline managers and supervisors of schedulers, packers, loaders or drivers. They support frontline managers and supervisors to implement your CoR compliant work practices within their area of responsibility. TLIF3093A TLIF3063A Implement chain of responsibility regulations overview Administer the implementation of fatigue management strategies Visit or call Page 13

14 Frontline Awareness These courses are designed for transport operators, schedulers, packers, loaders, drivers, consignors or consignees. They build frontline staff awareness of their CoR responsibilities and appropriate work practices. TLIF2092A TLIF2010A TLID2004A Demonstrate awareness of chain of responsibility regulations Apply fatigue management strategies Load and unload goods/cargo These frontline awareness (Level 1) courses provide general awareness of the CoR laws. It is generally expected that the Level 1 courses will be applicable for the majority of employees and as such are designed as online courses. The Level 2 & 3 courses are generally targeted at a smaller number of (more senior) employees and due to their intensive nature combine online and face-to-face delivery methods. These courses were the first official nationally recognized training courses for Chain of Responsibility in Australia and can only be delivered by an RTO. They set the benchmark for CoR training standards and will mean that companies which undertake ad hoc, internal education for their employees or contractors will find it hard to demonstrate that they have "taken every reasonable measure" in the event of a legal case. Visit or call Page 14

15 APPENDIX A. Definition of Responsible Person in the Chain of Responsibility Source: NSW Road Transport Act 2005 Updated 10 May 2011 Page 28 Section 21 Road Transport (General) Act 2005 No 11 Current version for to date (generated on at 14:21) Responsible person; in relation to a heavy vehicle or combination; means any person having; at a relevant time; a role or responsibilities associated with road transport; and includes any of the following: a) an owner of a vehicle or combination or of a vehicle in a combination; b) a driver of a vehicle or combination; c) an operator or registered operator of a vehicle or combination; d) a person in charge or apparently in charge of a vehicle or combination; e) a person in charge or apparently in charge of the garage address of a vehicle or combination or the base of the driver or drivers of a vehicle or combination; f) a person appointed under an approved road transport compliance scheme to have monitoring or other responsibilities under the scheme; including (for example) responsibilities for certifying; monitoring or approving vehicles or combinations under the scheme; g) an operator of an intelligent transport system; h) a person in charge of premises entered by an authorised officer under this Act; i) a person who consigns goods for transport by road; j) a person who packs goods in a freight container or other container or in a package or on a pallet for transport by road; k) a person who loads goods or a container on a vehicle or combination for transport by road; l) a person who unloads goods or a container containing goods consigned for transport by road; m) a person to whom goods are consigned for transport by road; n) a person who receives goods packed outside Australia in a freight container or other container or on a pallet for transport by road in Australia; o) an owner or operator of a weighbridge; or weighing facility; used to weigh vehicles or combinations or an occupier of premises where such a weighbridge or weighing facility is located; Visit or call Page 15

16 p) a responsible entity for a freight container; q) a person who controls or directly influences the loading or operation of a vehicle or combination; r) an agent; employer; employee or subcontractor of any person referred to in the preceding paragraphs of this definition. Visit or call Page 16

17 RESOURCE LIST: NTC: ROAD FREIGHT USER S GUIDE TO: Protecting Yourself Under the Chain of Responsibility 06.pdf RTA website: nforcement_-_general_information.pdf RTA Fact Sheets: 1.html NHVR Website: NTC Information Bulletins February NSW Road Transport (General) Act 2005 No 11 Compliance and Enforcement in the Transport Industry June 2009 RTA Vic Roads Chain of Responsibility Fact Sheet 1 October 2003 Publication Number 01309/1 Operation Austrans Targeting Heavy Vehciles Scott s Transport handed record $1.25m fine by NSW court over repeated speeding offences Visit or call Page 17