COR move towards WHS means higher penalties

By: Brad Gardner and Rob McKay


Aim is better alignment with maximum penalties under the national safety laws

COR move towards WHS means higher penalties
Paul Retter wants reforms to restructure and consolidate existing obligations.

 

Progress towards marrying chain of responsibility (COR) provisions under the Heavy Vehicle National Law (HVNL) with work health and safety (WHS) law is progressing but that will mean higher penalties.

Lawyers noted the WHS direction earlier in the year and one, Norton Rose Fulbright senior associate Nicki Milionis, sees the National Transport Commission (NTC) confirming this recently.

In his foreword, NTC CEO Paul Retter states: "The intention of these reforms is not to extend the scope of duties but to restructure and consolidate existing obligations to ensure current parties in the chain of responsibility take a performance based approach to their responsibilities."

Milionis says "the transport ministers have given ‘in-principle support’ to reform of the COR laws to mirror a WHS approach.  The NTC is of the view that primary duties for safety will ‘…ensure better alignment with…’ WHS laws by use of a focus on a performance-based approach to responsibilities rather than a prescriptive approach".

Along with tackling inconsistencies, compliance costs and lack of proactivity, the NTC’s second COR discussion paper says in a section headed "statement of problem": "The maximum penalties prescribed by the HVNL are considerably lower than those for other safety-based legislation, such as the Model WHS Act and RSNL [Rail Safety National Law]. This may lead to mixed messages, potentially misleading industry and the courts about the seriousness of the risk of non-compliance with the HVNL."

This means fines of up to $600,000 and five years in prison are foreshadowed.

COR’s existing prescriptive requirements in favour of the WHS Act’s primary duties approach, which provides an overarching responsibility a party must meet but gives them the flexibility to determine the approach they will take to comply.  

"The maximum court-imposable fines under the HVNL ($20,000 for an individual) are significantly lower than the maximum court-imposable fines under the Model WHS Act," the NTC’s discussion paper says.

"Maximum penalties for breaching the primary duties could be amended to be better aligned with the maximum penalties available under the national safety laws, including adoption of hierarchy of penalties based on the nature of the actual harm or damage caused."

The WHS Act splits penalties into three categories based on the severity of the offence.  

The maximum fine for an individual – such as an employee – in the highest offence category is $300,000 and/or five years behind bars.

The penalty for an individual running a business – such as a contractor or owner-driver – is $600,000 and/or five years in prison.

Even the maximum fines for the lowest offence category are significantly higher than what exists under the HVNL.

Someone running a business faces a fine of up to a $100,000, while an employee can be fined up to $50,000.

Depending on the offence, body corporates can be fined from $500,000 in the lowest category up to $3 million in the highest category.

The NTC says it recognises a final determination on penalties cannot be made until the structure of primary duties is finalised, but it also makes clear that the existing penalties for COR offences are not good enough.

"Significant risks to road safety remain because the way the law is structured does not encourage COR parties to proactively identify and prevent risks, and does not provide sufficient deterrent effect because appropriate penalties are not provided for," the discussion paper states.

It adds that the penalties and the threat of imprisonment for breaches of the WHS Act are seen as essential to providing a level of deterrence.

"The maximum penalties reflect the level of seriousness of the offences and have been set at levels high enough to cover the most egregious examples," the NTC says.

The discussion paper is currently open to industry feedback until August 7. A final version will be prepared for transport ministers to consider in November.

The NTC has recommended amendments to the HVNL be drafted in May next year and then implemented shortly after.

"It is anticipated that amendments to the HVNL will commence in late 2016 or early 2017," it says.

The NTC believes extending executive officer liability (EOL) provisions to include a due diligence obligation needs more work to reconcile it with the duty already provided for under the Model WHS Act.

"Although COR and EOL are linked, the regimes are also separate and there are a number of the current offences that extend liability to executive officers which are not chain of responsibility offences," the discussion paper reads.

"The impact upon these non-COR offences would need to be considered. This proposal would also extend the liability of executive officers to areas of the HVNL that are not currently covered by the executive officer liability regime."

It also confirms the rejection of burden of proof falling on defendants.

A significant proportion of the second discussion paper deals with proposed "role-specific duties" for those beyond trucking companies.

Consignors and consignees, schedulers, loading managers, loaders and packers and unloaders may have their obligations simplified while remaining aimed at avoiding inducing drivers to push fatigue or speed or mass, dimension and load restraint limits and take into account related issues.

These employees should all have role specific duties to ensure safety that are tailored to their roles and responsibilities" that would replace existing COR requirements".

The discussion paper can be found here.

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