Note: This information is intended as general guidance only and does not constitute legal advice. We encourage you to obtain independent advice about your legal obligations. If you have any feedback on the information provided, please contact us at info@nhvr.gov.au

This regulatory advice provides guidance on how to manage the risk of non-compliant heavy vehicles arriving at their premises and their obligations under the Heavy Vehicle National Law (HVNL).

Who is this advice for?

• Parties in the Chain of Responsibility (CoR), especially those who manage or operate a premises where heavy vehicles arrive.

What are my legal obligations?

This is 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. CoR parties and their executives, should be aware that they remain a CoR party even when their transport activities are contracted, or subcontracted, to another party.

What are the legal consequences?

If your business is a party in the CoR and it fails to eliminate or minimise public risks so far as is reasonably practicable, then it may be in breach of its primary duty. If a breach is proven, the law provides sanctions against a company and its executives, ranging from education and formal warnings for minor offences to improvement notices and prosecution for more serious offences.

In addition to your primary duty obligations, you also have a general duty under work health and safety laws to ensure the health and safety of employees and visitors at your premises. Your duty under these laws must also be considered when assessing the risk posed by a non-compliant vehicle or driver. 

You may also be subject to penalties for specific offences under the HVNL, including using or permitting the use of a vehicle that contravenes:

• mass requirements (section 96)
• dimension requirements (section 102)
• loading requirements (section 111).

Mass, dimension and loading offences carry a maximum penalty exceeding $10,000. 

Background

The National Heavy Vehicle Regulator (NHVR) often receives enquiries about what a CoR party’s duty requires them to do about non-compliance by other parties – frequently about their obligations when a heavy vehicle arrives at their premises and the vehicle or driver is clearly in breach of the HVNL and/or presents a risk to public safety.

The two key issues considered in this regulatory advice are:

• how to determine whether a non-compliant vehicle should be refused entry
• how to manage the risks associated with vehicles allowed to enter.

Some businesses appear to be turning trucks away because they believe that, by allowing the vehicle to enter their premises, their business becomes liable for the breach and that, by refusing entry, it avoids liability as a party in the CoR. This interpretation of the HVNL misses two important principles:

• Firstly, since the primary duty was introduced in October 2018, CoR parties are no longer liable simply because another party has breached the law (see Chain of Responsibility - FAQs). If a business is the consignor or consignee of goods on a heavy vehicle, it is still a party in the CoR, whether or not the vehicle arrives at its premises, and whether or not entry is allowed. Turning the vehicle away forms part of the “transport activities” for which the business is responsible.
• Secondly, there may be some circumstances where it would be reasonable for you to turn a non-compliant vehicle away. However, in many situations, refusing entry to the vehicle increases the risk. Your business can contribute to improved safety in the industry by developing your own procedures for dealing with non-compliant vehicles, discussing these procedures with your business partners, and implementing them at your premises.

It can be difficult to assess and manage this situation because there may be conflicting responsibilities between your primary duty, the safety of the general public, and the risk to employees and customers. This regulatory advice will help you navigate your way through this.

What are the hazards and risks when a vehicle is refused entry?

The potential safety risks if a vehicle is turned away include:

• danger to the public and other road users
• damage to infrastructure
• contamination of the environment.

The potential consequences of turning the non-compliant vehicle away:

• legal consequences
• damage to your business reputation by association
• damage to the relationship and possible disputes with the business that engaged the heavy vehicle.

What are the hazards and risks when a non-compliant vehicle is allowed entry?

Examples of hazards arising from non-compliant vehicles or drivers arriving at premises include:

• vehicles with improperly secured loads, including leaks
• vehicles that exceed mass or dimension limits
• vehicles that are mechanically or operationally unsafe
• drivers who are not fit for duty.

The potential safety risks resulting from these hazards may include:

• risks to the health, safety and wellbeing of employees and customers
• damage to the premises or equipment
• damage to the environment.

What is the scope of my duty?

Your duty is limited to those things you can control and influence.

What can I control?

You have minimal control over how a heavy vehicle is loaded before it arrives at your premises, how it is maintained, or the driver’s work and rest hours. However, you do have control over what happens once a heavy vehicle arrives at your premises. At that point, you probably have more information about the risk than other parties had at the start of the journey, especially if the non-compliance occurred along the way. For example, successive loads may have caused overloading, a driver may have become more fatigued, or a defect on a vehicle may have deteriorated and become more serious.

What can I influence?

If you are a regular customer or business partner of the CoR party responsible for the non-compliance, then you have an opportunity to deter non-compliance and positively influence their transport activities.

You could include terms in a contract that promote compliance, communication, and the sharing of information about risks. These terms can also outline the measures to be taken when non-compliance occurs – for example, financial penalties for having to manage a non-compliant vehicle, withholding payment for the portion of the load that exceeds authorised mass limits, reporting the non-compliance to the proper authority, or refusing the vehicle entry to your premises.

With one-off or infrequent business partners, you have less opportunity to set safety and compliance expectations in advance. However, you can communicate your expectations, policies and procedures to all businesses by publicly displaying them at the entry to your premises, on your business website and on social media pages.

What is my legal liability?

You will not be liable for another party’s non-compliant vehicle simply because it forms part of your transport activities.

Your liability under the HVNL when another party’s non-compliant heavy vehicle arrives at your premises will depend on the degree of control or influence you have over that transport activity. However, you could be in breach of your primary duty if there is a pattern, or repeated occurrences, of non-compliant heavy vehicles arriving at your premises, and you fail to implement policies and procedures that address the safety risks and deter non-compliance.

What is beyond the scope of my duty?

Parties in the CoR are not expected to go beyond what is reasonable. For example, you would not be expected, nor would it be proper, to check a driver’s work diary for compliance with work and rest hours, or to ask invasive questions to determine their fitness to drive. However, if a driver is displaying visible signs of being fatigued or impaired in any other way, you may decide to have a conversation with them to reassure yourself that they can safely continue operating the heavy vehicle.

The same principle applies to vehicle condition. You would not be expected to employ a mechanic to conduct complex vehicle inspections and roadworthy checks prior to allowing a vehicle entry. However, you would be expected to respond to obvious vehicle defects, such as smooth or flat tyres, or significant oil, fuel or air leaks.

Could my business be liable for turning a non-compliant vehicle away?

If there were reasonable measures that your business could have taken that would have prevented an unsafe, non-compliant heavy vehicle from travelling on the road and you failed to take them, then you may have breached your primary duty. However, this would be assessed on a case-by-case basis. Even if there were other CoR parties who had also breached their primary duty or the driver of the heavy vehicle was in breach of the HVNL, this would not absolve you of your primary duty obligations.

If a non-compliant heavy vehicle arrives at your premises, the reasonable thing to do may be to allow entry and assist the driver to address the immediate risk. However, if you do not have the facilities or equipment to assist, then it may not be reasonable to allow entry.

Can I refuse a non-compliant vehicle entry?

You may refuse a vehicle entry to your premises for being non-compliant with HVNL requirements, if it is reasonable to do so. It is only reasonable to refuse entry when the non-compliance poses an unacceptable safety risk to your employees and/or customers that cannot be resolved on your premises because your business or employees are not equipped to manage the hazard. However, refusing the vehicle entry will form part of your transport activities and does not absolve you of your primary duty responsibilities.

What should be considered when deciding whether to admit a non-compliant vehicle to your premises?

Your business will have to identify and assess the different types of risk that could arise when non-compliant heavy vehicles arrive at your premises. You will then have to decide, based on multiple factors, whether to allow the non-compliant vehicle to enter. You should consider the questions below before making your decision:

• What is the risk to employees and infrastructure at your premises if the non-compliant vehicle is allowed entry?
  • Would your employees be endangered?
  • Is the vehicle so heavy or so high that it will damage the premises?
  • Do your employees have the skills and equipment required to unload the vehicle, reposition and restrain the load, or deal with dangerous goods, a leak or a contamination risk?
  • Is there a space for the vehicle to be parked and managed without affecting the general safety and safe traffic movements at your premises?

If, based on your answers to these questions, you determine that the vehicle should not be allowed to enter your premises, you should then consider the risks if you refuse the vehicle entry.

• What is the risk to the public and public infrastructure if a non-complaint vehicle is refused entry?
  • What distance will the vehicle have to travel before the non-compliance can be managed?
  • How much worse will the problem become, especially if it’s a defect or leak?
  • Is the driver at risk if the journey continues?
  • What risks will be posed to other road users?
  • How much damage will the vehicle cause to road infrastructure?
  • Are there high traffic volumes, dangerous corners, tunnels, culverts or bridges with a restricted mass limit on the route the vehicle is likely to take?
  • Is there a protected environment particularly vulnerable to contamination on the route the vehicle is likely to take?
  • Is the vehicle carrying livestock that need feed and water?

Why is it important to identify hazards and manage the risks?

By properly managing the risks associated with non-complaint heavy vehicles arriving at premises, CoR parties can:

• prevent injury and fatalities to employees and members of the public through a systematic risk management approach, such as a Safety Management Systems (SMS)
• create a safety culture in their business where workers are encouraged to make informed decisions about safety, creating positive outcomes for employee and public safety, and benefits to other areas of their business
• avoid financial losses due to delays, impacts on scheduling, and damage to equipment or infrastructure
• avoid regulatory and other legal sanctions
• enhance their reputation within the industry, and position themselves as a business or employer of choice.

How do I manage the risks when a vehicle is allowed entry?

Initially, you should consider the way your business operates – for example, its facilities, the number and type of heavy vehicles that arrive, the loads they carry and the distance they travel. You can then identify potential risks and consider how well equipped your employees are to deal with these in the environment of your premises.

Being able to assist a driver or operator to address non-compliance will help you manage risk and increase the value of the services your business offers. You should work with your employees to develop policies and procedures, and ensure they understand how to deliver a consistent, safe and legal approach.

Control measures

Some other measures you may consider include:

• making changes to policies and procedures
• developing a list of questions or a flow chart to guide employee decision-making
• assigning to each shift a dedicated employee who has responsibility for deciding whether to admit or turn away non-compliant vehicles
• allocating places where non-compliant or defective vehicles can park to rectify an issue or unload excess freight
• training employees to identify and adjust poorly restrained loads
• purchasing appropriate equipment for dealing with spills.

Deterring non-compliance

Ignoring non-compliance and always allowing entry without considering the risks can, in itself, create a risk. Failing to deter non-compliance may mean that the operator of the heavy vehicle may not be aware of the issue, and this could prevent them from addressing the risk.

However, turning all non-compliant vehicles away without first performing a risk assessment may also create a public risk. Strict no-tolerance policies may operate as a powerful deterrent, but they could also result in a breach of your primary duty obligations. You need to work with your employees and business partners to develop measures that will effectively deter non-compliance.

These may include:

• directing a fatigued driver to a rest area for a period of time
• withholding payment for the part of a load that exceeds mass limits
• requiring the operator or responsible party to pay a fee for the additional time and/or resources required to unload the non-compliant vehicle.

A combination of practical measures and contractual provisions will help your business minimise the risks associated with non-compliant vehicles arriving at your premises. Your policies, procedures, and expectations should be clearly communicated to your business partners, in contractual arrangements wherever possible. For example, you might require that all vehicles are compliant before they depart for your premises. You might also specify that any costs to your business associated with the heavy vehicle or driver’s non-compliance will be passed on to the responsible party.

Monitoring and feedback

You should implement policies and procedures that require your employees to document and report every incident of non-compliance, and the measures they took to manage the situation. These reports should be shared with non-compliant businesses and other CoR parties as required. You may include a contractual requirement for your business partners to take a particular course of action if there is a pattern of non-compliance or a serious incident.

How do I respond to the different levels of risk?

Parties in the CoR are required to manage risks associated with non-compliant vehicles arriving at their premises in accordance with their primary duty.

The types and degrees of risks created by non-compliant vehicles arriving at your premises can vary substantially. Your business will have to assess each vehicle on a case-by-case basis and respond accordingly. You can make this process easier by taking a proactive approach to risk management and implementing systems and control measures.

Policies and procedures for your employees should include a range of measures that would be suitable for different situations and different risk profiles. No single policy will apply to every situation, which is why training employees to manage risks effectively is so important.

Examples of different types and degrees of risks

Your employees will need to be able to distinguish between minor breaches of the HVNL and serious risks to safety and public infrastructure. The scenarios below provide examples of how the potential risks posed by non-compliant heavy vehicles and their consequences can vary.

Scenario 1: A heavy vehicle combination loaded with gravel arrives at your premises. The vehicle is weighed and found to be overloaded by approximately 20% of its gross mass What action would be considered as ‘reasonably practicable’ in this instance? What is the risk? Do you accept the vehicle or do you turn it away?

Accepting the vehicle combination would be unlikely to pose a risk to employees or infrastructure at your premises, whereas turning the vehicle away may pose a risk to vulnerable road, or other, infrastructure. Reporting the non-compliance to the vehicle operator may highlight failures in their loading procedures and prevent this situation from recurring.

Scenario 2: A heavy vehicle combination loaded with structural fabricated steel arrives at a construction site. During the journey, the load restraint system has partially failed and some of the steel has moved. There’s now a danger of the steel falling off the vehicle. What action would be considered as ‘reasonably practicable’ in this instance? What is the risk? Do you accept the vehicle or do you turn it away?

In this instance, accepting the vehicle may pose a risk to your employees when they unload the steel. The steel may require a forklift – or even a crane – to stabilise or unload it. Turning the vehicle away is not a reasonable option, as it would pose an unacceptable risk to other road users and infrastructure.

The appropriate response in this scenario may be to move the vehicle to the nearest safe area, preferably on site, where it can be isolated from other workers and the public, and then to contact the vehicle operator or steel manufacturer and explain the situation. You can then work with the operator and driver to arrange the equipment and personnel to safely unload the vehicle.

Scenario 3: When a B-double combination arrives at your premises loaded with palletised freight, it is discovered that the freight on several pallets has collapsed. A risk assessment determines that unloading the vehicle would pose an unacceptable risk, as the pallets – and the freight they are holding – are no longer secured and are resting on other pallets. What action would be considered as ‘reasonably practicable’ in this instance? What is the risk? Do you accept the vehicle, or do you turn it away?

If you don’t have the necessary equipment, unloading the vehicle on site may not be an option; however, turning the vehicle away in its current state is not reasonable, as it poses a risk to other road users and infrastructure. The appropriate response in this scenario may be to secure the load using additional restraints, and then work with the operator and driver to find the nearest location with the right equipment to safely unload the vehicle.

Resources

Master Code

Guidance and direction on how to effectively introduce a risk management process within your business can be found in Section 3 of the Master Code.

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 is a systematic approach to managing safety, including the necessary organisational structures, accountabilities, policies and procedures, which is integrated throughout the business wherever possible.

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

Transport activities

Transport activities include all the activities associated with the use of a heavy vehicle on a road. It includes safety systems, business processes such as contract negotiation and communication and decision making, as well as the activities normally associated with the transport and logistics sector such as training, scheduling, route planning, managing premises, selecting and maintaining vehicles, packing, loading and unloading.

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.

More information can be found in Regulatory Advice - Reasonably practicable.

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.

Executive due diligence

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.

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