The Impact of New Heavy Vehicle Regulations in the Road Transport Industry

by K&L Gates LLP
Contact

Is Your Organisation Compliant?

With the Heavy Vehicle National Law (HVNL) beginning in February 2014 and the Road Safety Remuneration Tribunal's first Road Safety Remuneration Order (RSRO) commencing in early May 2014, this year promises to be challenging for organisations involved in the road transport industry.

To add further uncertainty, the Federal Government is currently reviewing the Road Safety Remuneration System which may result in the repeal of the incoming RSRO. Despite this review, compliance with both the HVNL and RSRO will be a requirement for all organisations using heavy vehicles as part of their operations.

Organisations should consider the most efficient and cost effective way to achieve compliance with both the HVNL and RSRO by ensuring that these systems are flexible enough to sustain the potential repeal of the RSRO.

The Heavy Vehicle National Law

Following a series of administrative delays, the HVNL commenced on 10 February 2014 in Queensland, New South Wales, Victoria and Tasmania. It will be adopted in the Northern Territory and the Australian Capital Territory at a later date. The HVNL requires organisations which transport goods or have goods transported using 4.5 tonne or heavier vehicles to have a HVNL compliance system in place, particularly those companies in the manufacturing, retailing and construction industries.

The HVNL also imposes obligations on all participants in the logistics supply chain in these industries, including consignors, consignees, operators, employers and prime contractors.

Compliance with these laws requires each duty holder to demonstrate it has taken 'reasonable steps' to prevent breaches of the HVNL and its regulations. The HVNL also imposes legal liability for breaches on Executive Officers of such organisations.

The HVNL represents a harmonised system of regulation for heavy vehicles across Australia and saw the creation of the Heavy Vehicle National Regulator (Regulator) on 21 January 2013. The Regulator is responsible for the management of the National Heavy Vehicle Accreditation Scheme (NHVAS) and Performance-Based Standards (PBS) design and vehicle approvals.

Following the commencement of the HVNL, the Regulator also became responsible for administering all ‘chain of responsibility’ obligations in applicable HVNL jurisdictions relating to:

  • vehicle standards and maintenance
  • speed limits
  • mass, dimension and load requirements
  • fatigue management requirements.

The National Transport Commission (NTC) recently issued a review paper (Paper) titled Chain of Responsibility Review Assessment of Options Paper February 2014. This is part of the ongoing review of the chain of responsibility provisions in the HVNL. The public comment period for submissions closed on 14 March 2014.

The Paper sets out a number of options for the adoption of components of the model Work Health and Safety (WHS) legislation. These include:

  • adoption of the standard of 'reasonably practicable' 
  • broadening the definition of 'responsible parties' 
  • an increase in enforcement measures, such as prohibition notices 
  • increases in penalty levels consistent with those in the WHS legislation.

It remains to be seen whether all or some of these options are adopted and the implications for those that form part of the chain of responsibility.

Road Safety Remuneration Order

Following an extensive consultation and submission process, the Road Safety Remuneration Tribunal made its first RSRO on 17 December 2013. The RSRO will run for a period of four years from 1 May 2014 and will impose numerous obligations on participants in the supermarket retail and long distance supply chains.

The RSRO requires:

  • contractor drivers to be paid for their services within 30 days of a hirer's receipt of a valid received invoice 
  • road transport drivers to have written contracts, with these contracts to be made available in electronic format 
  • contracts between supply chain participants to be compliant with the RSRO 
  • safe driving plans to be prepared for long distance operations in a heavy vehicle (any vehicle weighing over 4.5 tonnes) 
  • training in work health and safety to be provided to road transport drivers 
  • employers and hirers to implement RSRO compliant drug and alcohol policies 
  • compliance with the RSRO's dispute resolution procedure
  • road transport drivers to be protected from adverse conduct in specific circumstances.

The issue of rates of payment for road transport drivers is the subject of additional proceedings in the Road Safety Remuneration Tribunal, with these proceedings also investigating forms of payment and what constitutes 'work' for the purposes of receiving payment.

The Pending Review

The RSRO has been criticised by various stakeholders within the road transport industry due to its perceived overlap with the HVNL, work health and safety laws and the regulatory burden it will place on the industry. As a result of these perceived issues, the Federal Government announced late last year that it would conduct a review of the Road Safety Remuneration System. The review is designed to assess the operation of the Road Safety Remuneration Act 2012 (Cth) and the Road Safety Remuneration Tribunal and provide advice on whether the system effectively addresses safety concerns in the road transport industry.

The future of the Road Safety Remuneration System will likely depend on the outcome of this review and the composition of the Federal Senate following 1 July 2014.

What Does This Mean for Your Organisation?

The obligations imposed under the HVNL and RSRO are onerous and the full impact of these changes are currently unclear.

While all affected organisations should have in place HVNL compliant systems, the potential repeal of the RSRO means that a substantial question remains: does your organisation also need to ensure compliance with the RSRO even if it may be repealed? The simple answer is 'yes'.

Compliance with the RSRO is mandatory and all organisations involved with the road transport industry should ensure that steps are taken to satisfy its obligations under both the HVNL and RSRO by ensuring that:

  • directors and senior managers are made aware of the Executive Officer liability provisions within the HVNL
  • all relevant employees (including road transport drivers) are aware of the steps that must be taken to achieve compliance with both the HVNL and RSRO
  • contractual arrangements, safety and operating systems, training programs and internal policies (eg drug and alcohol policies, safe driving plans and driver contracts) are updated to reflect the obligations imposed by the RSRO.

While the RSRO arguably represents a 'best practice' approach to management of road transport drivers, it does impose quite onerous and potentially costly obligations on organisations that are involved with the road transport industry.

Given the impending Federal Government review and uncertainty surrounding the future of the RSRO, organisations may wish to proceed with some caution when taking steps to overhaul their systems and practices to allow for some flexibility should the RSRO be later repealed. When reviewing current systems and procedures organisations may wish to:

  • ensure that any long term contracts address the possibility that the RSRO will be repealed and provide scope for the organisation to vary contractual relationships in consequence of an anticipated regulatory change
  • give consideration to whether the organisation's current systems and procedures may be later amended to be solely HVNL compliant if required.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© K&L Gates LLP | Attorney Advertising

Written by:

K&L Gates LLP
Contact
more
less

K&L Gates LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!