Dealing with Prosecutions & Training

First response management

Case preparations & corrective actions

Implementing head to toe business training

Incident• Most accidents are not accidents

• One or more people have made a decision that has contributed to a death or injury

• In many cases there have been preceding “near misses”

• Laws make people who contribute just as liable as the heavy vehicle driver

Incident Response - Investigators• Heavy Vehicle Incident can be

investigated by:• RMS• WorkCover• Police• Comcare

• RMS has the most extensive powers to:• Collect information • Interview people• Analyse data

• In a number of high profile deaths involving Heavy Vehicles:• On the doorstep the next day• Launched investigations in other States

Incident Response – Supply Chain PartiesTransport Company – “Driver Error”

Consignor – “Transport Company Fault”

Management – “They Stuffed Up”

Most incidents are preventable• Transport Company – Systems and Processes

• Consignor – Compliance with NHV Laws

• Management – Systems, Tools and Oversight and Culture

• Operator – Qualified and Competent

Investigation ProcessRegulators will review:• Transport Company – Systems and

Processes• Consignor – Compliance with NHV

Laws• Management – Systems, Tools and

OversightRegulators can access data• To create own reports• Even if you cannot or just don’t • To create evidence for conviction

Investigation ResponseRegulators should see:• Transport Company

• Complying documentation• Reports• Non-conformance• Corrective Actions

• Consignor• Compliance Register for NHV Laws• How Compliance is being addressed

• Management• Exception Reports• Business Improvement processes

Prosecution Phases• Investigate – attendance on your doorstep

• Serious decision, based on solid information• Direct causal link to, death, injury, damage to public

infrastructure or commercial benefit

• Review – systems, processes, police and procedures • Exist?• Compliant?• Evidence of compliance?• Evidence of deliberate avoidance or non-compliance?

• Prosecute those unable to demonstrate compliance, for all offences across

• Fines• Compensation• Commercial Benefit

• Consider Banning Order

Prosecution ScopeScope of powers:• RMS:

• Fines for breach• Compensation• Commercial Benefit• Ban from road

• WHS:• Fines for breach• Jail for offences

• Criminal:• Jail for manslaughter• Fines for breach

How far can Regulators or Police go? Directors and Managers and their businesses have been subject to (and remain subject to) Court process where Heavy Vehicles have been involved, including:

• Issued Fines

• Supervisory Intervention Orders

• Licensing and Registration Sanctions

• Improvement Orders

• Prohibition Orders

• Compensation Orders to pay money to Asset Owner

• Commercial Benefits Assessment paid to Regulators

• Jail for Manslaughter

• Jail/Fines for Dangerous Driving Causing Death

Exposure to ProsecutionAt time of offence:

• Multiple offences• Mass – past weighbridge dockets

• Defective Vehicles – Fleet

• Tamper with Speed Limiters – Fleet

• Multiple offenders:• Directors and Managers

• Supervisors

• Loaders, Drivers, etc

Exposure to ProsecutionAt time of court hearing

• Proven matters

• Remorse

• Early plea

• Corrective actions, including:• Addressing issues the subject of

the fines

• Addressing systemic failures

• Addressing systematic failures

Affect of Incident / Prosecution• Loss of all previous “cost savings”

• Consumption of Director and Manager time in managing litigation

• Consumption of Director and Manager time in increased supervision

• Multi Site and Multi State attention

• Increased insurance premiums, private and WorkCover

• Compliance costs greater than required – to prevent future breach/higher fines

• Viability of business affected, including • Loss of Goodwill• Loss of contracts• Exclusion from tenders

Early Warning Signs• Media reports on prosecutions in

your industry or your product

• Fines issued to drivers

• Fines issued to the Company

• Poorly maintained equipment including Heavy Vehicles

• NO reporting of “near misses”

• NO incidents reported in the last 12 months

• High turnover of staff, through resignations

• High turnover of staff, through termination of safety whingers

Reduce Exposure - Preventative Implementing the CoR framework throughout your organisation will help to:

• Maintain value of the business

• Improve the safety of your employees, contractors and the public

• Meet your social responsibility as a good corporate citizen

• Meet your legal obligations and avoid penalties

• Be CoR compliant or have CoR compliance plans in place

• Reduce the likelihood of a “heavy accident” related death

• Capture incidents through robust systems and by recording and responding to all non-conformance including “near misses”

Reduce Exposure – First Response Be ready to respond to Regulator investigations under a First Response Plan, by: • Applying your protocols for investigating the incident

• Engaging with the Regulator early

• Applying protocols for managing communications

• Ensuring the media are kept informed

• Being prepared for operational site investigations

• Anticipating road side interceptions by the regulator

Ensure continuity of business by:

• Reducing the interruption to your business

• Assisting with your reasonable steps defence

• Enable efficient dealings with your regulators

Provide an informed and balanced view on the activity of your business and the operation of your supply chain, to Inspectors and the public (through the media)

Reduce Exposure – Case Preparation Case Preparation investment can return dividends to your organisation through:

• Reducing cost of court cases

• Preventing further issues leading up to trial

• Reducing the post-trial rectification time and costs

• Mitigating fines/penalties

• Improving business efficiency

Case Preparation – Key Issues• Start early – The regulator has all your

information!

• Document your reasonable steps and compliance work

• Identify gaps and corrective actions

• Check each charge • The Regulator must always establish the offence was

committed• The Regulator will not make out your defence for you

• Consider your strategy:• Offence made out• Reasonable Steps Defence before the Offence• Post incident positive action to mitigate the penalties• Framing the Supervision / Improvement Order

Corrective ActionsManage interface between your organisation and the Regulators

Identify issues:• within the Regulator’s powers

• for the Board/Management to understand the present and future exposure of the business

Plan to work with Regulator to:• Address ALL Regulator concerns with your

business

• Take early action with areas where Regulator intends to prosecute

• Lessen Regulator concerns about your business

• Lessen the ongoing impact on the business

Managing Heavy Vehicles

All Supply Chain exposed to:

• National Heavy Vehicle Laws

• Chain of Responsibility Hazards

All people (working, managing, directing), exposed to:

• Prosecution for breach of Law

• Claims for breach of duty of care

Reasonable Steps DefenceNHV Law S 625 Proof of compliance with registered industry code of practice

“the person complied with all relevant standards and procedures under a registered industry code of practice, in relation to matters to which the offence relates is evidence that the person took all reasonable steps”

Registered Codes of PracticeTitle Developed by

Heavy Vehicle Transport Off-Farm Grain Carriers’ Code of

Practice (Mass, Dimension, Load Restraint and Fatigue)

South Australian Road Transport

Association

Australian Steel Industry Logistics Safety Code of Practice Australian Steel Institute

National Logistics Safety Code of Practice Australian Logistics Council

Refrigerated Warehouse Transport Association of Australia

Chain of Responsibility Code of Practice

Refrigerated Warehouse Transport

Association of Australia

Retail Logistics Supply Chain Code of Practice Australian Logistics Council

Trucksafe Operator Business Rules and Code of Conduct TruckSafe Pty Ltd

NHVAS Not a Code of PracticeHeavy Vehicle Accreditation—

(a) AFM Accreditation; or

(b) BFM Accreditation; or

(c) Maintenance Management Accreditation; or

(d) Mass Management Accreditation

Conditions of Heavy Vehicle AccreditationNHV Law S462 (1) A heavy vehicle accreditation granted under this Law is subject to the condition that the operator who holds the accreditation must comply with the relevant standards and business rules.

Conditions of Heavy Vehicle Accreditation

NHVR Webiste:

“It has since evolved as a formal process for recognising operators who have robust safety and other management systems in place. It is also increasingly being used to show compliance with general duty requirements under road transport law.”

Needs to be verified – NHVR Policy?

Auditor “A Responsible Person”NHV Law “Responsible person”, for a heavy vehicle, means a person having, at a relevant time, a role or responsibility associated with road transport using the vehicle, and includes any of the following—

……

(e) a person appointed under a heavy vehicle accreditation to have monitoring or other responsibilities under the accreditation, including, for example, responsibilities for certifying, monitoring or approving the use of heavy vehicles under the accreditation

Limited Scope of Defence

Reasonable Steps:• Approved Code

• Offence Covered by the Code area of interest

• Complying with the Code in the area of interest of the Regulator

NHVAS• Increased business operations, in the

nominated NHVAS area

• Compliance to the law in that area, not universal

Building a Delivery and Sustainability Model Organisations must have a process of identifying, assessing and responding to risks, and communicating the

outcomes of these processes to the appropriate parties in a timely manner. This is what makes an

organisation unique in its compliance reviews.

Understand the Contrast – COR and WHS Environments

COR Hazards across all delivery modes to, onand from a site / project (site) or asset (road).

WHS/Environment Hazards that occur on site, although site may be the end or start point.

In many cases common “root cause” and (preventative) treatment.

Having a Consistent ApproachConsistent approach to COR Hazards across all delivery modes and cultures.

Ensuring Policy, Tools and Education across the Organisation, counter parties and third parties have consistent expectations and capacity to deliver on NHV Law compliance and approach COR Hazards consistent with National WHS Laws.

Qualified & Competent

Management know:• Who is doing what work

• What approval, skills and competency is required to do the work

• Have Management verified approval, skills and competency at engagement and on an ongoing basis

Qualified & CompetentManagement know that Competency has been verified.

Qualification Training Assessment Evidence

Heavy Rigid Driver Training Theory and Practical Endorsed on State Driver Licence (eg RMS)

High Risk RTO Theory and Practical Issued High Risk Licence (eg: SafeWork)

Secure Load - - -

Fatigue - - -

Clear Guidelines on Training?

Reasonable or Not?

• Reasonable Steps Defence for COR

• Reasonably Practicable for WHS

• Reasonable Person for Civil Liability

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