Reformed COR will still have transporters in its sights

By: Brad Gardner, Photography by: Brad Gardner


Trucking is in 'a particularly vulnerable position', transport lawyer says.

Reformed COR will still have transporters in its sights
Tough break: The trucking industry will still be the main target even if chain of responsibility is reformed, Gillian Bristow says.

 

Trucking operators and drivers hoping that proposed changes to chain of responsibility will mean an easier time from authorities better think again.

Specialist transport lawyer Gillian Bristow believes the trucking industry is "always going to be in a particularly vulnerable position" when it comes to COR enforcement even if legislative changes are made.

This is despite an indication from the National Heavy Vehicle Regulator (NHVR) that COR reform will mean authorities will put greater emphasis on parties higher up the supply chain.

"As operators. I see you as being the ones with the most to lose and the easiest targets. And I don’t think that’s just me, that’s my experience anecdotally and it’s also the statistical experience," Bristow told a room full of NatRoad members recently.

She pointed to figures from the New South Wales Roads and Maritime Services (RMS), which show that up to March 2014 there was a total of 4,432 COR prosecutions.

"Of those, 2,271 of them — that's 51 per cent — were against the operator and that's not including the ones that were against the prime contractor and the employer," Bristow says.

"So, the operator represented more than half of those charges and I don't see that changing however we structure that legislation.

"The operator is the obvious one when something goes wrong, when a vehicle’s pulled over.

"So from that point of view, you — the audience — are really the ones who’ve got the most to lose out of chain of responsibility."

NHVR COR manager Michael Crellin says truck drivers cop it first under COR, but he adds that it is due to the way the law is structured.

He says the plan to add primary or general duties to the COR framework similar to what exists in workplace health and safety law should give authorities greater clout to target big businesses.

"We have to come after you first, or it seems," Crellin says.

"I guess the best way to describe that is the way that the law is currently framed and until we get the general duty we have to actually prove those substantive offences committed by the driver first before we can go and attack anybody else in the chain.

"What the general duty will provide for us is that overarching workplace health and safety style offence committed by the company and other parties in the supply chain…it’s actually going to be quite effective for us to go back and apply the pressure where it really needs to be applied.

"That being the companies who are setting up the systems and processes and applying business practices to you as drivers that either push or pull that type of offending, the offending we see subject to the chain of responsibility."

The National Transport Commission has proposed aligning COR, which is contained in the Heavy Vehicle National Law (HVNL), with the Work Health Safety Act (WHS Act) to strengthen the regime and remove duplication.

 

'SCARY' PENALTIES FOR COR BREACHES

The proposed changes may also remove the reverse onus of proof that currently exists for COR prosecutions.

"The whole of the evidentiary burden will switch to the prosecutor so the prosecutor will have to prove that you failed to take all reasonable steps to prevent the commission of the offence," Bristow says.

"So I think that’s a good thing and will certainly potentially reduce the number of offences that executive officers can be liable for and how difficult it will be for prosecutors to bring those charges."

Bristow has warned the trucking industry COR reforms may also usher in substantially higher penalties for offences. This is because penalties in the WHS Act are much higher than those contained in the HVNL.

"Now this is the scary bit. Part of the review of chain of responsibility has seen various submissions made that the penalties within this legislation as it exists now are just way too low and they in no way mirror what is in the rail law or in workplace health and safety law," Bristow says.

"So the proposal is that the trade-off for moving to primary duties and getting rid of the reverse onus of proof etc is that we will bring the penalties in this legislation more in line with workplace health and safety, and rail. And I don’t think you need to be a genius to see how big the penalties they’re talking about compared to what is in there now."

Penalties for some offences can be as high as $300,000 and up to five years in jail for an individual employee, and a $3 million fine for a corporation.

"So it’s all rather sobering from that perspective," Bristow says.

 

IMPROVING 'ALL REASONABLE STEPS'

Bristow is hopeful proposed changes will clarify the "all reasonable steps" provision. As the name suggests, it requires parties in the supply chain to take necessary measures to prevent a COR offence from occurring.

However, Bristow says there is no clear definition of "all reasonable steps".

"The big problem with this reasonable steps notion that’s in the Heavy Vehicle National Law is there is no definition of it, it’s scattered all over the legislation. There’s a few examples given in various parts of the legislation. There’s a few sections that deal with it but there’s very little guidance material," she says.

"The difficulty is that all of the cases that we have had so far there hasn’t been a single one where a transport operator has been found to take all reasonable steps. So it leaves someone like me up here saying I can tell you a lot of things that aren’t all reasonable steps but I can’t tell you what are all reasonable steps.

"The other practical problem is that this legislation ends up being decided by magistrates. Magistrates don’t even have to report their decisions. A lot of them are given orally. If they are given in writing they aren’t reported where anyone can see them. So we aren’t doing a good job of developing guidance material for people on what all reasonable steps would look like."

Proposed changes to COR may lead to "all reasonable steps" being replaced with "so far as reasonably practicable", similar to what is used in workplace health and safety legislation.

Bristow says she supports the change because it makes clear that the reasonable steps must be practical.

"It has to be something that is reasonable having regard to the business you run and how much it would cost to put in place and what the risk is you're actually trying to mitigate and how likely it is to happen," she says.

"All of those terms are included in the workplace health and safety legislation as part of trying to explain what is reasonably practicable."

A final proposal on changes to COR will be given to transport ministers in November to vote on.

 

NEXT: Trucking operators need to pay attention to clauses in customer contracts

You can also follow our updates by liking us on Facebook