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OHS BODY OF KNOWLEDGE
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Addressing chain of responsibility challenges in supply chains Chain of responsibility obligations in Australia’s Heavy Vehicle National Law present a number of important challenges for OHS professionals, writes Craig Donaldson
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n the complex web of supply chains and transportation activities, the concept of chain of responsibility plays a pivotal role in ensuring safety, for the workers directly involved and the broader public. As organisations strive to navigate the intricacies of chain of responsibility, a dichotomy has emerged in their approaches. Some are diligently improving their understanding of chain of responsibility risks, investing in training and recognising the correlation between chain of responsibility and overall health and safety practices. However, some organisations are more interested in outsourcing responsibility or neglecting to address breaches adequately. The Heavy Vehicle National Law (HVNL), a cornerstone of Australia’s road transport regulations, introduces chain of responsibility as an essential component, emphasising the need for all parties involved in heavy vehicle activities to be accountable. “I think that organisations are improving how they identify and manage chain of responsibility risks in their transport activities and how they provide those involved in the transport activity with the required training and information to manage the risks safely,” said Jo Flitcroft, group general manager zero harm systems and projects for Downer Group. “I think there is a growing awareness of managing chain of responsibility risks in the same way or with the same intensity that other health and safety risks are managed. To me, this can only help improve road safety for us all.” Flitcroft, who has authored a forthcoming chapter in the OHS Body of Knowledge on chain of responsibility, also noted that some organisations may still feel they can contract their responsibility and liability to other parties, suppliers or operators. Alternatively, she said they may fail to action to prevent reoccurrence where a breach has occurred. “It is important that organisations identify whether they are a party in the chain of responsibility, the risks that can be eliminated in their transport activities and those that can be minimised. Organisations should be aware that the regulator will consider the function or activity that is being performed, not just the role or title used by the organisation,” said Flitcroft.
OHS PROF ESSIONA L | DECEMBER 2023
Chain of responsibility and the Heavy Vehicle National Law (HVNL)
Chain of responsibility is one part of the HVNL that applies to businesses that interact with heavy vehicles, according to Denise Zumpe, founder and director of specialist consultancy CoR Comply. “From my experience, there is a real mix out there of organisations not even knowing it exists, others thinking it only applies to ‘linehaul’ (those trucks that run up and down the major highways every night with interstate deliveries) and many who have been trying to do the right thing and be ‘compliant’ based on the information they have received from their internal experts, supply chain partners, consultants and the regulator,” she said.
“Professionals should also be aware that they might be required to monitor risks over which they have limited ability to control” Zumpe observed that the messaging and information around the duties and compliance has been confusing, resulting in many organisations not understanding their roles and responsibilities. “The emphasis has been on transport operators’ compliance, instead of businesses looking at how their activities relating to the heavy vehicle could expose the driver and other road users to risk,” said Zumpe. As an example, a business that has heavy vehicles delivering goods may be preoccupied with confirming the driver (who is employed by a transport operator) has a current driver’s licence, when the transport operator has a legal obligation to ensure drivers have a current and valid licence. “That business should be focusing their attention on understanding how their operations could expose the driver to risk. This could be through unnecessary delays at their site, which can impact driver fatigue and other hazards associated with receiving
goods from a heavy vehicle,” said Zumpe, who is working with the AIHS to help develop chain of responsibility training to accompany the new OHS Body of Knowledge chapter. Zumpe said it is worth noting that the National Heavy Vehicle Regulator (NHVR) takes a much broader view of chain of responsibility with regard to 10 named parties, as evidenced by this statement on their website: “Everyone who works with heavy vehicles – from the business that employs a driver or owns a vehicle, to the business that sends or receives goods – is accountable for the safety of the heavy vehicle, its driver and its load throughout the journey.” “I think it’s fair to say we are still on a learning curve when it comes to chain of responsibility and understanding HVNL,” said Zumpe.
Common chain of responsibility challenges and gaps
As alluded to above, organisations face a variety of complex challenges in managing chain of responsibility through their supply chain networks. Flitcroft said the first step for such organisations is to identify the transport activities that occur within the organisation, consider the arrangements that govern those activities in regard to other parties (such as the transport company) and understand the terms, payments, conditions and the intended and unintended behaviours that these terms could lead to. “For example, are there penalties for late deliveries, or is the timeframe for delivery too short or inflexible?” Flitcroft asked. “The organisation then needs to take a broader look at the transport activity itself and how they are managing the risk.” According to Flitcroft, another potential gap may be in the investigation and reporting that is being made available to officers and executives of the organisation to enable them to meet their due diligence obligations and assure themselves that their organisation is managing the risk effectively and meeting its obligations. She added that organisations can utilise their existing investigation and executive reporting mechanisms to address heavy vehicle transport requirements, and should ensure that these processes extend to
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their heavy vehicle transport activities and address any learnings or improvement opportunities that arise. “Keeping the information and instruction provided to workers will also assist in preventing incidents from occurring and provide for safe transport activities,” said Flitcroft. Zumpe said that, in her experience, inconsistency and conflicting information has been the biggest challenge for businesses. “Organisations have put resources into developing systems and practices that overlook their own risks, so they still have gaps when it comes to demonstrating compliance with the primary duty and reducing safety risks,” she said. “The number one piece of advice I can give to anyone seeking to meet their obligations under chapter 1A of the HVNL is ‘look in your own backyard first’. Businesses need to look at their own operations, identify their transport activities and manage the risks they pose to the safe operation of a heavy vehicle.” The OHS Body of Knowledge chain of responsibility chapter introduces the “circle of responsibility”, said Zumpe, who explained that chain of responsibility has typically been depicted as the 10 named parties linked together by a chain which reinforces the belief that if one party is non-compliant, somehow this has legal implications for all the other parties. “By reframing this as a circle where each party is focused how they can affect the safety of the driver and other road users, it becomes much clearer,” she said. Developing a common and consistent understanding of the duties and concepts underpinning the principle of shared responsibility and the scope of chain of responsibility will also benefit the safety and productivity of all supply chain parties. “The health and safety profession has a lot to offer in this regard,” said Zumpe. “We have a great evidence base around what works with risk management, safety
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management systems and the efficacy of auditing and accreditation systems. We understand the importance of capturing incidents and looking beyond the pointy end at other contributing factors and governance practices to demonstrate due diligence.”
Implications and advice for OHS professionals
OHS professionals may be more familiar with considering risk as it applies to workers and those in their workplace, or within the boundary of their control, Flitcroft observed. “For heavy vehicle risk, they are asked to consider the public risk,” said Flitcroft, who suggested that professionals should make themselves familiar with the Master Code and with other sources of information such as the OHS Body of Knowledge chapter, which is written to assist professionals in getting across key aspects. “Identifying the risk may involve consideration of delivery or service arrangements, and contractual positions and professionals may need to work with their legal teams or commercial teams to put the right measures in place to manage the risk. Professionals should also be aware that they might be required to monitor risks over which they have limited ability to control – for example, because the transport activity is occurring outside of your geographic location,” said Flitcroft. Zumpe also said the alignment of chapter 1A of the HVNL with work health and safety law in 2018 has seen businesses expect health and safety professionals to become chain of responsibility subject matter experts. “We can apply our expertise in risk management and governance, but there are differences in the two laws that health and safety professionals need to be aware of,” she said. “Safety has a particular scope under the
HVNL – public safety, as opposed to worker safety. The duty provisions of WHS law apply to workers and workplaces, but under the HVNL, they apply to a party’s transport activities relating to a heavy vehicle.” Driver fatigue in the HVNL, for example, is strongly focused around compliance and it is acknowledged that limitations within the HVNL currently contribute to ineffective fatigue management. Zumpe also noted that health and safety professionals may already have risk-based fatigue management policies and procedures that contradict the HVNL. “There are two areas of technical expertise here. Operational teams have the technical knowledge about the work, where the risks are and how the risks are controlled – they are doing this every day,” she said. “Transport can be dynamic, things can change quickly and often none of this is written down so the health and safety professional needs to use their skills and experience to extract the information they need to document risk assessments, identify gaps and prioritise actions.”
Chain of responsibility in the OHS Body of Knowledge In addition to the forthcoming chapter on chain of responsibility, there are a number of other chapters and resources in the OHS Body of Knowledge which are relevant for OHS professionals. “Understanding associated risks is really important,” said Flitcroft. “While the chain of responsibility looks at public risk, obviously when the heavy vehicle is within the workplace, the more familiar health and safety risks need to be managed, such as where the vehicle travels, pedestrian workers moving around, and of course safe access and loading and unloading. I would recommend that professionals review chapters on fatigue, risk management and those that touch on fitness for work and safe vehicle and plant activities.” Zumpe also noted that the NHVR promotes safety management systems as one of the most effective ways of meeting safety obligations under the HVNL and encourages operators to develop a safety culture. “There are many BoK chapters that inform these concepts as well as heavy vehicle driver risk reduction and improved safety outcomes,” explained Zumpe, who said these include chapter 30 (vehicles and occupational road use), chapter 20 (fatigue management) and chapters 10 and 12 on the organisation and systems. n
DECEMBER 2023 | OHS PROF ESSIONAL