Steven Asnicar - Chain of Responsibility Australia

Chain of Responsibility

Chain of Responsibility

• Lessons for off-road parties in achieving CoR compliance

• Incorporating CoR compliance in commercial arrangements

• Contractual metrics that don't create a breach of CoR compliance law

• The importance of meaningful communication between employees, contractors and supply chain partners

• "Reasonable steps" means "reasonable enquiry'

• Compliance = regular audits and accredited training

• Criminal vs civil risk

What is the Chain of Responsibility?

NHVR and CoR Philosophy

Influence = responsibility = legal liability

Off Road Parties

Off-road parties are as legally liable as their on-road counterparts if a breach of those requirements occurs. This enables authorities to better target the party or parties actually at fault in each case, and reduces pressures on on-road parties and eventually leads to improved compliance, and safer roads. All parties are required to either take reasonable steps to prevent an infringement of the road transport laws, or to not encourage or coerce others to breach those laws.

What the Law Requires

The law requires you to take all reasonable steps to prevent your actions or 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

• Passing on false or misleading information that could cause a breach.

Commercial Arrangements

You can ensure your commercial relationships do not cause your business to breach chain of responsibility laws by:

• Including best work practices (for example, safety accreditation) in relevant commercial arrangements with other responsible people or parties in the transport chain

• Requesting information about what systems and controls are in place to ensure compliance (for example, policies on drugs or fatigue management)

• Avoiding arrangements which encourage or reward non-compliance.

What “not to have” as clauses

Contract clauses

• Transport company will comply with all laws

• Transport company will comply with directions from the Consignor

• Transport Company liable for non-performance, breach of law, etc


• Irrespective of operating under an approved Code, the contract clauses neuter the Code as a reasonable steps defence

• Appropriate CoR linkages do not exist to support CoR across the supply chain to facilitate the reasonable steps defence

• Lawyers, compliance and risk people in these organisations are not factoring CoR into business processes

• Use of Third Party Audits and Partnership Audits are not empowered through the contract

• Actual operations conform to contract philosophy and not to CoR obligations


Actual operations Consignor delivery demands are unreasonable:

– Nominated transit times too short – Nominated route not lawful for load – Nominated weight less than actual overweight

consignment – Insisting on a delivery time knowing driver will breach

fatigue laws – Requiring a driver to perform additional work knowing

driver will breach fatigue laws


Actual operations • Transport company objections dismissed or result

in threats to: • Ban driver • Cancel contract • Impose contract penalty • Poor performance assessment

• Consignor ignores: • load restraint issues • fatigue laws • potential load/weight issues


• Overlap between roles of Transport Company and Consignor/Consignee

• Overlap between National OHS laws and CoR laws

Reasonable Steps:

COR LAWS

• Reasonable enquiry

• Approved Code of Practice

• Accredited training

• Risk Assessment

OHS LAWS

• Practical Steps OHS laws

CoR consistent with OHS

Road (Potential, Current and Future)

CoR

• Speeding

• CoR Fatigue

• Work / Rest Rules

• Driving Fatigued

• Contract Terms

• Retention of Records

• Delivery Schedules and Site Activities

• Safe Driving Policy

• Mass Limits (Correct/Approved)

• (Over) Dimension (Permits)

• Load Restraint (Correct and in Use)

• Preventative Systems

• Daily Checklist

• Maintenance Schedule

• Record Creation and Keeping

• Speed Limiters

• Testing Equipment (Chains/Straps)

• Delays/Diversions

• Emergency

Truck on Site (Current and Future)

CoR

• Speeding (Make up lost time)

• CoR Fatigue Rules (no resting)

• Driving Fatigued

• Mass Limits (Correct/Approved)

• (Over) Dimension (Permits)

• Load Restraint (Correct and in Use)

OHS

• Tiredness

• Site Visitor

Site with Driver (Current and Future)

OHS

•Safe Work Method Statements

•Loading/Unloading

•Load Restraint (Correct and in Use)

•Worker (PCBU)

CoR

•Load Restraint (Correct and in Use)


•Speeding (Make up lost time)

• CoR Fatigue Rules

• no rest

• not “no driving”

•LUEZ

Site (Future)

OHS

•Traffic Management Plan

•Worker (PCBU)

•Safe Work Method Statements

•Load Restraint


•Tiredness (Safe Driving)

•Rest Break Facility/Area

CoR Risk

CoR maturity of your business

CoR maturity of your supply chain partners

Slide 1

Not yet developed or just

started development Under development Fully developed Stage:

Description:

Purpose of

templates:

How to move

to the next

stage:

Workplace has few or no policies,

procedures and tools in place

Workplace has limited or no HR, WHS,

compliance or business improvement

processes in place

Workplace has some policies,

procedures and tools in place

Workplace has some HR, WHS, CoR

compliance and business

improvement processes in place

Workplace has policies,

procedures and tools for most or

all CoR requirements

Workplace has comprehensive

HR, WHS, CoR compliance and

business improvement processes

in place

Provide a guide for a possible way

to translate external requirements

into a business context

Help identify gaps in existing

documents and as a guide for

possible translation of external

requirements into a business context

Help identify any gaps in existing

documents and as a guide for

possible translation of external

requirements into a business

context

Work with industry body/consultant to

assess whether relevant templates

meet current internal requirements

and external requirements (legal,

industry or business driven) and either

customise the template or create a

new template

Create supporting business

improvement and change

management processes and training

Once policies, procedures and tools

under development, engage external

auditor to identify and prioritise any

remaining gaps/deficiencies

Engage external auditor to identify

and prioritise any gaps/deficiencies

Work with industry body/consultant to

implement audit outcomes to agreed

timeframes

Strengthen supporting HR, WHS,

CoR compliance and business

improvement processes, policies,

procedures and tools

Start to align and integrate CoR

throughout workplace

Engage external auditor to identify

and prioritise remaining

gaps/deficiencies in the policies,

procedures and tools under the

business improvement processes

Use internal business improvement

processes to fill remaining

gaps/deficiencies and audit

outcomes

Review supporting HR, WHS, CoR

compliance and business

improvement processes

Confirm CoR is aligned and

integrated throughout workplace

Metrics for Performance

• OHS internal measures

• OHS external reporting

• OHS auditable for third party

• CoR internal measures

• CoR external reporting

• CoR auditable for third party

OHS Metrics Score (standalone)

• Safety Observations

• Risk Assessments – Own and Contractor

• Inspections and Audits – Site and Vehicle

• Emergency Response (Drill)

Non-Conformance (incident, near miss and new issues)

High Medium Low

Number reported

Closed out

Close out target time v actual time

Example OHS Metrics Score – Target v Actual

OHS By Month Jan Feb Mar

Risk Assessment

Target Number 4 4 5

Number

Completed

4 3 5

Score 100% 75% 100%

CoR Metrics Score (incorporating OHS)

• OHS and CoR Risk Assessments – Own and Contractor

• Inspections and Audits – Site

– Vehicle

– Vehicle maintenance

– Work Diaries

• Emergency Response (Drill)

Non-Conformance (incident, near miss and new issues)

High Medium Low

Number reported

Closed out

OHS and CoR – Close out target time v actual time

Example CoR Metrics Score – Target v Actual

CoR By Month Jan Feb Mar

Work Diaries

Target Number (ALL) 650 750 1000

Reviewed Number

(ALL)

650 700 900

Score – Level of Review 100% 93% 90%

Complying Number

(ALL)

650 700 800

Score – Level of

Compliance

100% 93% 80%

Meaningful communication between employees, contractors, supply chain partners

• Non conformances dealt with under own internal process and:

– Reported up through risk management system – Internal changes considered (and implemented) – Where external changes considered relevant, counter party

management contacted – Where counter party included in the process, counter party should

demonstrate matter closed out

• Non conformances not dealt with between operators, unless clear OHS or CoR breach if no action, eg: leaving site with unsafe load

• CoR internal measures • Contract alignment • Business rules align • Meaningful metrics available and audited

Compliance:

• In place

• Supported by:

– Accredited training

– Internal systems and processes

• Verified

• Audited

Criminal Liability v Civil Risk

• Criminal liability – attaches to the individual (personal liability) – cannot be insured or reimbursed – cannot be passed to employer or supply chain partner – per offence – a number of offences are at $11,000.00 – prosecutions involve multiple offences per individual

• Civil Liability – Generally against the company and the driver (insured) – Insurer can deny coverage to company, director or driver – Insurer can seek to recover against an employee of the

company