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Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy Vehicle Operations

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Page 1: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Implementation of Chain of Responsibility (CoR) Legislation in

Western Australia Paul BondManager, Heavy Vehicle Transport ComplianceMain Roads WA, Heavy Vehicle Operations

Page 2: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Legislation

Page 3: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – What is it?

CoR legislation extends the legal liability for breaches of transport law to all parties throughout the transport chain.

Page 4: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – Why?

CoR legislation aim is to encourage parties in the transport chain to promote compliance through positive actions to avoid breaches of transport law from occurringi.e being proactive instead of reactive.

Page 5: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

If you use road transport as part of your business, you share the responsibility of preventing breaches under new CoR legislation.

This means anyone who has control in the transport chain (including the operator and manager) can be held legally accountable if, by their actions, inactions or demands, they cause or contribute to road safety breaches.

Chain of Responsibility – What does (CoR) mean?

Page 6: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – What are the key components?

• Legal accountability throughout the transport chain

• Risk categorisation of breaches

• Expanded enforcement powers

• Increased legal defences

• Clarification and broadening of general liability

• Introduction of Container Weight Declarations

• Wider sanctions

Page 7: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – Breach category break points

Increase in the break point limits for breaches e.g Width Breaches

Risk Breach C & E Bill WA law

Minor < 40mm < 100mm

Substantial 40 – 79mm 100 – 150mm

Severe ≥ 80mm ≥ 150mm

Page 8: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – What vehicle types does this reform cover?

• In WA CoR laws will apply to all vehicle types, (including light vehicles <4.5 tonne).

Page 9: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – What type of offences does it cover?

In WA CoR laws WILL ONLY extend to vehicle mass, dimension & load restraint breaches.

Not under CoR but don’t forget …….. Fatigue (Worksafe)

Speeding Drugs & Alcohol & Health

Page 10: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – Who has adopted the legislation?

• All Australian jurisdictions have adopted the CoR Legislation.

• CoR legislation has been included in the National Heavy Vehicle Law that will be administered by the National Heavy Vehicle Regulator.

• All jurisdictions except WA and NT have agreed to adopt the NHVL within their own jurisdictions.

**WA Government has stated that it will not sign up to the national scheme unless there are clear benefits for WA**

Page 11: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – Has WA made changes to the national model law?

Yes, consultation was conducted with WA industry in 2009/2010 and changes were made to the model CoR law to better reflect the unique transport issues faced by WA.

Page 12: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – Has CoR law commenced in WA?

• No

• The CoR law is scheduled for commencement in

September/October 2014

• This period will enable affected parties to become

familiar with the new CoR requirements and provide

time to modify business practices (if required)

Page 13: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – Where can I find the CoR legislation?

• Road Traffic (Administration) Act 2008

http://www.slp.wa.gov.au/legislation/statutes.nsf/

main_mrtitle_4471_homepage.html

• Road Traffic (Vehicles) Act 2012http://www.slp.wa.gov.au/legislation/statutes.nsf/main_mrtitle_12926_homepage.html

Page 14: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Areas of Specific Coverage

Page 15: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – Who is included in the Chain?

If you are involved in any of the following road transport activities, you are a party in the ‘Chain of Responsibility’ and may be deemed liable in the event of a breach of the road laws: Consigning: a person or company commissioning the carrying of goods;

Packing: placing goods in packages, containers or pallets;

Loading: placing or restraining the load of the vehicle;

Driving:the physical act of driving a vehicle;

Operating: operating a business which controls the use of a vehicle;

Receiving: paying for the goods / taking possession of the load.

Page 16: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – Also extends to…

Unincorporated associations

Partners in a managed

partnership

Director(s) of a body

corporate

Employers

Any person who threatens, intimidates, coerces, induces or

offers an incentive to another person to commit an offence

Page 17: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – Who influences the Chain?

Page 18: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – What influences vehicle compliance?

Competitive pressure

Vehicle capability

Customer demands

Loading practices

Staff demands

Scheduling Travel delays

Page 19: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Compliance and Enforcement

Page 20: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – Objectives / Strategy

Continuation of current Compliance and Enforcement practices• Encouraging industry and community to voluntarily

comply• Educate rather than prosecute• Focus on key safety and infrastructure protection

messages• Intelligence-driven targeted enforcement

Page 21: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – Enforcement

Main Roads are the key enforcement agency via: Transport Inspectors;

Intelligence Unit;

Dedicated Investigators.

WA Police will also have the authority to enforce CoR.

Page 22: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – What may prompt an investigation?

Number (and type) of offences detected over a defined period of time

Fatal or serious crashes Complaints Informants Intelligence

Page 23: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – Compliance approach

Enforce

Monitor

EducateInform

InvestigationRoad Transport Compliance

IntelligenceLegal Support

WAHV AccreditationCommunications

Page 24: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – What will change from an enforcement perspective?

Transport Inspectors will continue to undertake their daily core business and on-road compliance activities.

(CoR) will permit investigators and authorised officers to undertake further investigations to detect a breach of the road law.

Traditionally only the driver or company are held responsible. (CoR) provides the legislative authority to investigate other persons who may have contributed to a breach of the road law.

IF YOU ARE DOING THE RIGHT THING NOW THEN NOTHING WILL CHANGE FOR YOU

Page 25: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

• Traditionally drivers and operators have been the target of enforcement activities.

• Others in the transport chain also have a responsibility: to ensure transport law is complied with; and not put undue pressure on drivers to break the law.

• To promote a ‘level playing field’ for industry.

Chain of Responsibility – Sharing the responsibility?

Page 26: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – What you need to do?

Whichever activity you perform in the ‘chain’, it is important that you take reasonable steps to manage the risk and ensure road safety is not compromised.

There are no limits to the ways in which you can do this. What constitutes reasonable steps will vary according to each individual’s circumstances.

Page 27: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – What is ‘reasonable steps’ defence?

Must Prove:

Did not know of the breach, and

Could not be reasonably expected to have known, and

Took all reasonable steps to prevent the breach

Page 28: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – How do you take ‘reasonable steps’?

Taking reasonable steps means you must: regularly identify and assess the risks associated

with your activities; and manage those risks.

You can manage those risks by: doing all you can to eliminate the risk; or if you can’t - do everything you can to reduce or

minimise the likelihood of the risk occurring.

Doing nothing is not an option

Page 29: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – What is ‘reasonable’?

Things to consider: Nature of transport task Expertise / experience / training Risk management approaches Policies Procedures Monitoring / auditing

Page 30: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – How do you take ‘reasonable steps’?

Taking reasonable steps could include: reviewing business practices, changing commercial arrangements, adopting a risk management approach, appropriate training policies, appropriate supervision, ensuring responsibilities are known

Page 31: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – Questions for you to consider?

Have you taken all reasonable steps to comply with the CoR legislation?

Are you loading your vehicles correctly? Are you satisfied that your contractors are able to take

the loads they say they can, legally?

Page 32: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Actions and Consequences

Page 33: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – Action/Inaction

• Under CoR/C&E legislation:-In-Action is as culpable as Action !

• Therefore doing nothing is not an option

Page 34: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – Consequences

• Failure to comply can result in:– Prosecution– Corporate Fines– Personal Fines

• No one in the chain is exempt from fines!

Page 35: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – Penalties?

Systematic or persistent offender• Commercial Benefits Penalty orders• Licensing and Registration Sanctions– Driver Licence– Registration• Supervisory Intervention Orders – – (e.g. despatches/planners)• Prohibition Orders

Page 36: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – Penalties?

Priors: Nil. Costs: Nil.

‘To be used as a guide only’

Summary: Lachlan Wigg Pty Ltd The Corporate Accused is an East Gippsland based company engaged in the business of transporting bulk commodities such as wheat, grain & horticultural type products both locally and across the states of Victoria, New South Wales, South Australia & Queensland in fatigue regulated heavy vehicles. The accused is the operator of approximately 70 B double combinations comprising of tri-axle prime movers with tri-axle A & B tipper type trailers, all are fatigue regulated heavy vehicles & exceed 12000 kg’s Gross Vehicle Mass (GVM). The defendant is also the employer of approximately 70 people employed to driver these fatigue regulated vehicles. The accused is an accredited operator under the National Heavy Vehicle Accreditation Scheme, Victorian accreditation number V00756, accredited in the Mass, Maintenance & Basic Fatigue Management Modules. As the result of several complaints received from ex-employees Officers of the Roads Corporation attended at the offices’ of AG-SPREAD in Stratford Road Maffra and pursuant to Section 132 of Part 9 of the Road Safety Act 1986 requested the production of all documentation relating the drive/work hours of its employed drivers for the period of September 2009. A company representative complied with this request and provided work diary duplicate pages, running sheets, payment records & fuel accounts for the relevant period, including a list of all vehicle combinations and those employees attached to them for that period. This information was then audited for compliance by officers of the Roads Corporation. Information was provided by the defendant for a total of 63 employed drivers and from this, 36 drivers of fatigue regulated vehicle combinations were identified as having breached the fatigue legislation as set out in Part 10A of the Road Safety Act 1986. (See attached list of drivers & registrations) Letters of invitation to participate in a Record of Interview was posted to these 36 employed drivers, they have not been returned undelivered and contact by phone was made with the informant by all but four. A total of 85 breaches were identified as being committed by the defendant as the operator of fatigue regulated heavy vehicles. These breaches are made up of the following:

Exceeding 14 hours work in a 24 hour period Substantial Risk Breach (x33) Exceeding 14 hours work in a 24 hour period Severe Risk Breach (x12) Exceeding 14 hours work in a 24 hour period Critical Risk Breach (x7) Exceeding the 84 hour work rule (x7) Possessing purported work diary records (x19)

Failing to ensure 7 hour continuous rest in a 24 hour period Substantial Risk Breach (x2) Failing to ensure 7 hour continuous rest in a 24 hour period Severe Risk Breach (x2) Failing to ensure 7 hour continuous rest in a 24 hour period Critical Risk Breach (x3).

The accused company as the operator of fatigue regulated heavy vehicles was contacted per letter of invitation inviting the company to partake in a Record of Interview regarding these fatigue related breaches. The defendant company agreed to participate in a Record of Interview & nominated its Compliance & Safety Manager as the company representative. This interview was conducted over 3 & 4 May 2010. The company representative was very co-operative & made full admissions. REASONS: During the Record of Interview the company representative, The Safety & Compliance Manager offered the companies lack of knowledge of the identified breaches as an excuse for them occurring. PENALTY: (Penalty Unit for period 01/07/09-30/06/10 @ $117)

1. RSA 191O(2)(a)(4) 100 Penalty Units (Substantial)(Work)(x33)=$386 100 2. RSA 191O(2)(a)(4) 250 Penalty Units (Severe)(Work)(x12)=$351 000 3. RSA 191O(2)(a)(4) 500 Penalty Units (Critical)(Work)(x7)=$409 500 4. RSA 191O(2)(b)(4) 100 Penalty Units (Substantial)(Rest)(x2)=$23 400 5. RSA 191O(2)(b)(4) 50 Penalty Units (Severe)(Rest)(x2)=$11 700 6. RSA 191O(2)(b)(4) 500 Penalty Units (Critical)(Rest)(x3)=$175 500 7. RSA 191O(2)(b)(4) 500 Penalty Units (Critical)(Rest)(x7)=$409 500 8. RSA 191ZB 500 Penalty Units (x19)=$1 111 500

Total of 85 Charges.

Total maximum for all offences = $2 787 200.00

• 1- RSA 1910 100 penalty Units x33 = $386,100• 2 -RSA 1910 250 penalty Units x12 = $351,000• 3- RSA 1910 500 penalty Units x7 = $409,500• 4- RSA 1910 100 penalty Units x 2 = 23,400• 5 -RSA 1910 50 penalty Units x 2 = $11,500• 6 -RSA 1910 500 penalty Units x3 = $175,500• 7 -RSA 1910 500 penalty Units x7 = $409,500• 8 -RSA 191ZB 500 penalty Units x19 = $1,111,500•  • Total 85 Charges• Total maximum for all offences = $2,787,500

Page 37: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – Actions

• Companies/Employers need to have a system for their own compliance

• Companies/Employers need a system to ensure provider complies

• Know where you are and where you should be – Gap Analysis

• System must be auditable and preferably certifiable• Do not be fooled by false compliance

Page 38: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Case Studies

Page 39: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – Case Studies

Potato Harvest• Daily overloads

– 5% to 15% over• Cubic line marked on truck• Mass per cubic metre variable

– Water content– Variety– Potato size

Page 40: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – Case Studies

GrainCorp• Multiple Mass loading breaches• Paid carrier for excess grain• $18.23m fines

– Based on NSW RTA points system

• Escape on Supreme Court ruling on technicality• NSW RTA strengthened laws• GrainCorp CEO immediate resignation

Page 41: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – Summary

• Know & comply with the law – ignorance is no excuse• Identify, assess and manage risks• Liability for both in-actions / actions• Documented, Auditable process

Influence = Control = Accountability = Liability

Page 42: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – Need more information?

Industry associations Legal practitioner (transport law) Consultancies specialising in CoR Transport South Australia Youtube video Main Roads website - www.mainroads.wa.gov.au Dedicated phone support via our HVO Help Desk 138 HVO (486)

Page 43: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Chain of Responsibility – Acknowledgement

Main Roads would like to acknowledge the contribution of Mike Wood from Latus Pty Ltd in allowing us to use their material that assisted in the development of this presentation.

Page 44: Implementation of Chain of Responsibility (CoR) Legislation in Western Australia Paul Bond Manager, Heavy Vehicle Transport Compliance Main Roads WA, Heavy

Questions?