According to s 26D of the Heavy Vehicle National Law (HVNL): “If a legal entity has a safety duty, an executive of the legal entity must exercise due diligence to ensure the legal entity complies with the safety duty.”
This means that for any business entity subject to any Chain of Responsibility (CoR) safety duty, the executive for that business entity must ensure that the business is doing the right thing.
Who is an executive?
Section 26D of the HVNL defines ‘executive’ as:
Executive due diligence
Section 26D of the HVNL expressly sets out what executives must do in order to discharge their obligation of ‘due diligence’.
Executives must take reasonable steps to:
Executives must be aware of the risks that can result from their business’s transport activities. They must know how to reduce those risks and ensure that their business is appropriately resourced to address any risks that may arise. In addition to this, executives must make sure there are adequate systems in place aimed at preventing CoR breaches, which they regularly monitor and review.
The executive obligation is not passive – it is very much active. It is also personal to the executive and cannot blindly be delegated. So, even if the executive delegates CoR compliance to the safety team, the executive must actively check in to ensure the job is being done properly.
Executives need to ensure that their business receives, considers and responds in a timely way to information about risks, hazards and any incidents. It is therefore essential that executives receive some form of CoR safety compliance performance reporting – in much the same way as they would already receive work health and safety (WHS) reporting. Without it, how can an executive know what has been implemented and whether it is working, in order to discharge their duty?
Penalties for executives who fail in their duty
Sections 26F, G and H of the HVNL set out the maximum penalties for executives, as follows:
CoR awareness in the boardroom
The executive liability provisions of the HVNL make it clear that CoR safety is a boardroom and senior-management issue as well as an operational issue. If executives don’t discharge their duty, they can be prosecuted and fined, even if no incident or accident has occurred. Executives must proactively ensure that their business is complying with the HVNL – the consequences of failing to do so could be costly and, in some cases, may even involve a mandatory five-year holiday.
Author: Nathan Cecil
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Published by Nathan Cecil