Civil Contractor's and the HVNL

Title: Legal Responsibilities of a Civil Contractor in the Building Industry under the HVNL.

Introduction:

The Heavy Vehicle National Law (HVNL) is a legislation enacted to regulate the operations of heavy vehicles and maintain safety during transportation. Civil contractors operating in the building industry are subject to the HVNL in various capacities - as a consignor, consignee, loader, unloader, packer, and scheduler. The legal obligations are aimed at ensuring legal load restraint, vehicle maintenance, fatigue management, and safe journey planning.

1. Legal Responsibilities as a Consignor and Consignee As a consignor, a civil contractor is legally responsible for ensuring that a heavy vehicle:

a) Complies with mass, dimension, and load restraint standards

b) Is not operated in a manner that may cause a risk to public safety, such as overloading or poorly restrained loads

c) Complies with axle loading specifications.

As a consignee, a civil contractor is legally responsible for ensuring that they receive goods only from a vehicle that meets the aforementioned requirements.

1. Legal Responsibilities as a Loader and Unloader As a loader, the civil contractor is required to:

a) Properly load and unload the vehicle

b) Ensure the load is restrained correctly and in accordance with legal requirements

c) Verify that the vehicle's mass, dimension, and load restraint will meet HVNL standards after loading or unloading.

1. Legal Responsibilities as a Packer
2. The civil contractor is responsible for ensuring that goods are packed in a manner that enables secure transportation and prevents overloading, meeting the load restraint standards under the HVNL.
3. Legal Responsibilities as a Scheduler
4. As a scheduler, the civil contractor must:

a) Ensure that schedules for heavy vehicles comply with applicable speed limits

b) Plan routes to avoid known hazards or avoid causing additional traffic congestion

c) Ensure that schedules allow sufficient time for required rest breaks and minimize driver fatigue.

1. Ensuring Legal Load Restraint
2. The civil contractor has a legal responsibility to ensure that the loads being transported are adequately and compliantly restrained. This may involve using a combination of methods, including chains, straps, blocking, and other restraining equipment, all meeting Australian Standards.
3. Vehicle Maintenance
4. The civil contractor must ensure the heavy vehicles under their jurisdiction are adequately maintained to meet HVNL standards. This includes regular inspections, keeping maintenance records, and promptly repairing any safety-related defects.
5. Fatigue Requirements
6. The civil contractor must manage drivers' fatigue in line with HVNL. This responsibility includes setting schedules that comply with legislated rest breaks and total working hours while ensuring drivers are fit for duty and have proper rest facilities.
7. Safe Journey Planning
8. Civil contractors must plan journeys in a way that minimizes potential hazards, adheres to road rules, and takes into consideration the heavy vehicle's limitations. This involves selecting appropriate routes, adhering to curfews or operating restrictions, and accounting for potential delays or variations in weather and traffic conditions.

Conclusion

Complying with the legal responsibilities under the HVNL helps to ensure safe operations for heavy vehicles in the building industry. Civil contractors must adhere to the regulations, taking their roles as consignors, consignees, loaders, unloaders, packers, and schedulers seriously and prioritizing safety over productivity. By adopting a responsible approach and thorough planning, civil contractors can contribute to safer roads for both heavy vehicles and other road users.

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Extract from the NHVR website:

Regulatory Advice - Managing the safety risks of light to medium heavy vehicles

Note:?This information is intended to provide general guidance only and does not constitute legal advice.

This regulatory advice is about identifying and managing the safety risks linked to the use of light to medium heavy vehicles.

Who is this advice for?

If you own or manage a business that is not primarily heavy vehicle transport focused, but you use a heavy vehicle to transport people, building material, tools, small plant or construction equipment to and from work sites, this advice may apply to you.

For example, this regulatory advice may apply to:

• builders
• concreters
• landscapers
• plumbers
• small plant operators
• any other tradesperson who drives a large work vehicle (a light to medium heavy vehicle)
• other parties in the?Chain of Responsibility?(CoR)?and their executives.

Your legal liability

Some businesses, such as builders, concreters or other trades, may not recognise that they are heavy vehicle operators and may be subject to CoR obligations under the Heavy Vehicle National Law (HVNL).

But, if your business engages or operates heavy vehicles in any of its activities, then:

?????the business?is considered a party in the CoR and has a primary duty under?HVNL section 26C

?????the executives of a business that are parties in the CoR?have an obligation under?HVNL section 26D?to exercise due diligence.?

Failure to comply with these obligations can result in significant court-imposed penalties. Therefore, it’s essential that businesses fully understand their legal obligations under the HVNL.

What is a light to medium heavy vehicle?

A light to medium heavy vehicle has a gross vehicle mass (GVM) or aggregate trailer mass (ATM) of more than 4.5t and less than 12t. The GVM is the maximum mass the vehicle can operate at, as specified by the registration authority or manufacturer.

What are the hazards and risks?

To identify and understand the hazards and risks linked to the use of heavy vehicles, businesses should conduct a risk assessment to consider the transport tasks being conducted, the type of loads a vehicle carries, the environment a vehicle operates in, and the skill level required for workers to safely operate the vehicle and perform the task assigned to them.

Hazards and risks may include (but are not limited to):

Vehicle collisions

Crashes involving heavy vehicles may result in serious outcomes. Causes of a crash may include:

• a heavy vehicle exceeding mass or dimension requirements
• shifting loads while the heavy vehicle is in transit
• an unskilled driver, or driver untrained in the task they need to perform
• an unroadworthy heavy vehicle
• driver distraction
• excessive or inappropriate speed
• a driver impaired by fatigue, alcohol or other drugs.

Loads shifting or falling off the vehicle

Causes of a load shifting or falling off a vehicle may include a driver not having access to a loading plan, lacking the skill or training to safely load a vehicle, or the lack of suitable load restraint equipment.?The Load Restraint Guide 2018?provides guidance and practical advice on how to meet loading requirements and loading performance standards.

The performance standards are legal obligations in?Schedule 7 of the Heavy Vehicle (Mass, Dimension and Loading) National Regulation.

Inadequate experience and skill

A risk assessment should include an assessment of the knowledge, skills and experience workers are required to perform for each task. A training needs analysis will help identify a worker’s current skill level and what additional skills they may require to safely carry out work tasks.

Note:?In this context, a ‘training needs analysis’ is a review of learning and development needs within a business. It considers the knowledge, skill, and behaviours that people need and how to develop them effectively.

Training must be provided for anyone who:

• is new to the heavy vehicle industry
• is not licenced to operate a heavy vehicle
• uses specialised equipment (vehicle-mounted cranes and other ancillary equipment)
• is transporting machinery, equipment or tools (loading and load restraint)
• lacks basic driver safety skills
• lacks an understanding of the requirements in the HVNL.

Mechanical Safety

Vehicles must be maintained to comply with?Heavy Vehicle (Vehicle Standards) National Regulation?and?Australian Design Rules. The NHVR has developed the?National Heavy Vehicle Inspection Manual?(NHVIM) to provide businesses in the heavy vehicle industry with consistent criteria for carrying out vehicle inspections.?

The manual enables a consistent standard for identifying when a heavy vehicle is unsafe and clear guidance on the pass/fail criteria for heavy vehicle components.?

The NHVR’s?Daily Checklist?is a useful tool that assists operators and drivers to identify basic safety issues on a heavy vehicle before using it on a road.

Driver distraction

Distracted driving is a major cause of vehicle crashes. This is when a driver’s attention is not fully focused on the road and the safe operation of their heavy vehicle.

Driver distraction includes:

• texting while driving (this is one of the biggest contributors to distracted driving and heavy vehicle incidents)
• talking on a mobile phone while driving (even with a hands-free device)
• talking to a passenger
• driving while emotionally distressed or daydreaming
• taking one or both hands off the wheel to eat or drink while driving
• reading driving directions, scrolling radio stations, or looking at something on the side of the road.

Driver fatigue?

Causes of fatigue include unsafe or unreasonable scheduling of rosters, medical conditions, interrupted sleep patterns, poor diet or lifestyle choices. In most cases, a light to medium heavy vehicle driver is not subject to HVNL work and rest hour requirements. However, all parties in the CoR must manage the risk of their transport activities, including heavy vehicle drivers that may be impaired by fatigue.

The NHVR’s?Fatigue Management?information provides owners of heavy vehicles and other parties in the CoR with guidance on how to manage fatigue risks.

Health, alcohol or other drug impairment

Impairment from alcohol and other drugs (including prescribed and over-the-counter medication) can adversely affect a person’s ability to work safely and can present serious safety risks to individuals, work colleagues and the public.

A workers’ fitness for duty is fundamental to safety and is a critical factor in a business ensuring the safety of its transport activities. In turn, effective management of alcohol and other drugs (AOD) should be a foundation of any fitness for duty program.

Speed

Speeding is a hazardous?behaviour that greatly increases the likelihood of crashes. Speeding is not just driving faster than the posted legal limit. Inappropriate speed can include driving too fast for the weather and visibility conditions, traffic and road conditions. Other factors that determine appropriate speed are the vehicle condition and handling dynamics, the load being carried, and driver skill and experience.

The?Chain of Responsibility Gap Assessment Tool?helps a party to identify, assess and manage their own safety risks and legal obligations linked to transport activities in the CoR.

Why is it important to manage hazards and risks?

Taking positive steps to manage the hazards and risks of light to medium heavy vehicles will keep workers, road users and the public safe and help parties in the CoR to meet their legal obligations.

Who has a duty to manage hazards and risks?

If a business engages in operating, driving, loading or unloading a vehicle, the business holds a duty under the?Heavy Vehicle National Law (HVNL)?to ensure the safety of its transport activities.

Businesses should, at a minimum, conduct a risk assessment to consider the transport tasks being conducted, the type of loads a vehicle carries, the environment a vehicle operates in and the skill level required for workers to safely operate the vehicle and perform tasks assigned to them.

How can I manage hazards and risks?

Key measures to manage the hazards and risks associated with the transport activities of light to medium heavy vehicles include:

• ensuring vehicles are safe, roadworthy, and properly maintained
• ensuring the vehicle is fit for purpose
• placing loads correctly to maintain vehicle stability and safety
• securing loads to prevent them falling or being dislodged from the vehicle
• using an appropriate method to restrain the vehicle load
• having systems and processes in place to manage driver fatigue and alcohol and drug use in the workplace.

What are on-road regulatory activities for heavy vehicles?

NHVR, along with state road authority officers and police, monitor and enforce the HVNL, road rules and other state-based laws. If directed by an authorised officer, the driver of a heavy vehicle must stop their vehicle. This direction may occur in the course of a mobile intercept, a static intercept at a random roadside inspection site or at a roadside heavy vehicle checking station.

Authorised officers conduct random and targeted inspections of heavy vehicles to minimise the potential for any harm by identifying safety risks linked to:

• the load and the restraint of loads on heavy vehicles
• the vehicle’s roadworthiness and compliance with the relevant vehicle standards
• the driver's fatigue level or impairment by alcohol and other drugs
• verifying the licence status of the driver and the vehicle's registration status.

Authorised officers use tools to monitor and interpret data and information obtained on heavy vehicles.

Safety Management System (SMS)

Management of safety risks can be more effective with the adoption, development and active use of a Safety Management System (SMS).

An SMS can help you:

• provide a safer work environment for your employees, customers, contractors and the public
• manage your safety duties under the HVNL
• demonstrate your ability to manage risk and ensure safety
• become an employer of choice and preferred supplier to customers
• make informed decisions and increase efficiency
• allocate resources to the most critical areas that have an impact on safety
• reduce costs associated with incidents and accidents.

Regardless of the size of a business, an effective SMS can help your business have an appropriate safety focus and comply with its duty to ensure the safety of its transport activities.

Structured information and resources including quick-guide documents, templates, worked examples and toolbox talks to guide you through each step of developing an SMS, implementing it with your management and staff, and extracting safety are available in the?9 Step SMS Roadmap.

Understand the HVNL and your primary duty

Under the?HVNL section 26C, each party in the CoR has a primary duty to ensure the safety of its transport activities,?so far as is reasonably practicable. This duty includes an obligation to eliminate or minimise public risks and a prohibition against directly or indirectly causing or encouraging a driver or another person, including a party in the CoR, to contravene the HVNL.

So far as is reasonably practicable

So far as is reasonably practicable means an action that can reasonably be done in relation to the duty, considering relevant matters such as:

• the likelihood of a safety risk or damage to road infrastructure
• the harm that could result from the risk or damage
• what the person knows, or ought reasonably to know, about the risk or damage
• what the person knows, or ought reasonably to know, about the ways of removing or minimising the risk, or preventing or minimising the damage
• the availability and suitability of those ways
• the cost associated with the available ways, including whether the cost is grossly disproportionate to the likelihood of the risk or damage.

Executives of businesses that are parties in the CoR have a distinct duty under the?HVNL section 26D?to exercise?due diligence?to ensure the business complies with its duty to ensure the safety of its transport activities.

Due diligence

Exercising?due diligence?includes taking reasonable steps to:

• acquire and maintain knowledge about conducting transport activities safely
• understand the nature of the business’s transport activities, including the hazards and risks associated with those activities
• ensure the business has, and uses, appropriate resources to eliminate or minimise the hazards and risks associated with its transport activities
• ensure the business has, and uses, processes to eliminate or minimise the hazards and risks associated with its transport activities and that information about hazards, risks and incidents is received, considered and responded to in a timely way.

Examples of?executive due diligence?activities include:

• collecting information about incident rates to see if the safety management plan is working
• participating in industry-led forums and safety seminars
• ensuring work procedures are being followed and result in improvements in safety
• ensuring safety incidents are responded to and investigated
• implementing learnings from the investigation of safety incidents
• ensuring that sufficient resources are allocated to enable implementation and management of the business’s risk management activities.