CTAA Contractor Management Breakfast Seminar – Know the Risks & Management Strategies Ray Hassall Executive Director Regulatory & Legal Services NHVR This material is intended to provide commentary and general information. It should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this presentation
Overview 1. Outline of WHS Laws generally 2. How do WHS Laws relate to the use of sub/contractors? 3. Outline of amendments to the HVNL 4. How do these amendments to the HVNL relate to the use of sub/contractors? 5. Investigations and Contracts 6. Contractor management tools 7. Recent judicial guidance
Outline of WHS Law generally All PCBUs have, to some extent, a duty to ensure a safe workplace. The extent to which that duty may be owed will depend upon: • Nature of the undertaking • Capacity to influence and control • Expertise • Contracts between parties (no longer determinative)
Outline of WHS Laws generally (Cont.) Section 19 – Primary Duty of Care A PCBU must ensure, so far as is reasonably practicable, the health and safety of: • Workers engaged, or caused to be engaged, by the person; and • Workers whose activities in carrying out work are influenced or directed by the person while the workers are at work in the business or undertaking.
How do WSH Laws relate to the use of sub/contractors? s 17: Management of risks A duty imposed on a person to ensure health and safety requires the person ‐ (a) To eliminate risks to health and safety, so far as is reasonably practicable; and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable. Critical question: T o what extent can a sub/contractor’s undertaking be controlled?
How do WHS Laws relate to the use of sub/contractors? (Cont.) s 20: Control of a workplace The person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person.
How do OHS Laws relate to the use of sub/contractors? (Cont.) s 46 Duty to consult with other duty holders If more than one person has a duty in relation to the same matter under this Act, each person with the duty must , so far as is reasonably practicable, consult, co ‐ operate and co ‐ ordinate activities with all other persons who have a duty in relation to the same matter.
Significant WHS Case Law Baida Poultry v R “Contracting the right person might be the most reasonably practicable step.” Devcon/ Tobiassen/ Laing O’Rourke/ PIB “There is no general obligation on a head contractor to supervise the work of an independent contractor having a particular expertise the head contractor lacks.”
Amendments to the Heavy Vehicle National Law (HVNL) and how is relates to the use of sub/contactors
Outline of amendments to the HVNL (Cont.) S 18: Relationship with primary work health and safety laws • If the HVNL and the WHS Act deal with the same thing, and it is possible to comply with both, you must comply with both; • If it is not possible to comply with both, must comply with WHS Law. • If something constitutes an offence under HVNL and WHS Law, you cannot be punished twice.
Outline of amendments to the HVNL (Cont.) S 26A: Principle of shared responsibility • Safety of transport activities is a shared responsibility of each party in the chain of responsibility for the vehicle. S 26B: Principles applying to duties • A person may have more than 1 duty; • More than 1 person can concurrently have a duty under this Law and each must comply. • The duty is non ‐ transferrable.
Outline of amendments to the HVNL (Cont.) S 26C – Primary duty (1) Each party in the chain of responsibility for a heavy vehicle must ensure, so far as is reasonably practicable, the safety of the party’s transport activities relating to the vehicle
Outline of amendments to the HVNL (Cont.) Who is a party in the chain of responsibility? • A driver’s employer; • If self ‐ employed driver – the prime contractor • Operator • Scheduler • Consignor and consignee • Packer • Loading manager • Loader
Outline of amendments to the HVNL (Cont.) I’m not a transport company. That’s why I contract someone else! You are undertaking transport activities (and therefore have to comply with the HVNL) if you: • Contract, direct or employ a person to: Drive the vehicle; Consign goods for transport using the vehicle; Pack goods for transport using the vehicle; Manage loading/unloading; Receive goods unloaded from the vehicle.
Outline of amendments to the HVNL (Cont.) What is meant by ‘reasonably practicable’? • What are the safety risks applicable to your transport activities? • What is the likelihood of a safety risk materalising? • What is the harm that could result? • What do you know, or ought to know, about the safety risk? • What do you know, or ought to know, about eliminating or minimising the risk?
How do these amendments to the HVNL relate to the use of sub/contractors? S 26E: Prohibited requests and contracts • Cannot ask, direct or require (directly or indirectly) the driver, or enter into a contract with the driver, or a party in the chain of responsibility to do or not do something the person knows, or out reasonably to know, would have the effect of causing the driver ‐ • Exceed the speed limit • Drive fatigued • Breach work/rest • Breach another law hours
How do these amendments to the HVNL relate to the use of sub/contractors? (Cont.) S 742: Contracting out prohibited A contract is void to the extent to which it ‐ • Is contrary to this Law • Purports to annul, exclude, restrict or otherwise change the effect of a provision of this Law • Purports to require the payment or reimbursement by a person of all or part of a penalty that another person has been ordered to pay under this Law May impose greater/more onerous obligations on a contractor than imposed in this Law
Investigations and Contracts Scenario: A transport company is contracted by a customer to pick up a shipping container from the Port. Upon arrival, the sealed container is loaded onto the heavy vehicle and the driver is provided with a container weight declaration. On exiting the port the load shifts within the container and the journey is ceased.
How do these amendments to the HVNL relate to the use of sub/contractors? (Cont.) Similar principles govern contractor management under the WHS Laws and HVNL: • Ensure the sub/contractor can do what they purport to do safely at engagement (skills, expertise, resources). • Explicitly identify where you are relying on the contractor's specialised skills • Ensure your contractor is an expert (i.e. have fatigue management plans, loading plans, maintenance regimes, etc in place).
How do these amendments to the HVNL relate to the use of sub/contractors? (Cont.) Provide the contractor with information known in relation to the hazards and confirm responses Consider training for your sub/contractors in your systems Compliance assurance conditions • Ensure regular reporting on compliance and performance • Incident notification requirements • Contractual sanctions for non ‐ performance
Contractor management tools Gap assessment tool Enables you to examine your business practices and systems controls against known risks and recognised best practice. Will recommend system controls that you could install to strengthen your compliance and safety management responses. www.nhvr.gov.au/safety ‐ accreditation ‐ compliance/chain ‐ of ‐ responsibility/cor ‐ gap ‐ assessment
Contractor management tools (Cont.)
Recent judicial guidance Roads & Maritime Services v Remondis Australia Pty Ltd [2017] NSWLC 15 “Simple, straightforward and well known controls” • Implementation of a loading protocol, so mass limits are identified and verified at the point of loading, • installation of load cells at the loader bucket, • the implementation of communication protocols between the defendant and the weighbridge or driver of the heavy vehicle • provision of supervision to ensure compliance or corrective action when non ‐ compliance occurs. Court imposed fine ‐ $732,206 Prosecution costs $250,000
Recent judicial guidance (cont.) Environment Protection Authority v Toll Global Forwarding Pty Limited ‐ [2018] NSWLEC 11 • Toll Global had the capacity to provide but failed to provide instructions to Stockwell regarding the engagement of subcontractors and their capability to comply with dangerous goods regulatory requirements • Toll Global engaged Stockwell without checking whether Stockwell had adequate policies, procedures and systems in place. • Simple fundamental measures which could have been taken by Toll Global. • Court took into account Toll Global’s submission that it had, in the past, relied on specialised skills of other transporters… this does not mitigate the concern.
Ray Hassall Executive Director Regulatory and Legal Services National Heavy Vehicle Regulator P: 07 3309 8540 | M: 0407 072 712 | E: raymond.hassall@nhvr.gov.auau PO Box 492 | Fortitude Valley QLD 4006 Gasworks | Level 3, 76 Skyring Terrace| Newstead QLD 4006 www.nhvr.gov.au
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