NHVR accepts $380,000 enforceable undertaking from power retailer to improve driver behaviour and safety

The National Heavy Vehicle Regulator (NHVR) has accepted an enforceable undertaking (EU) from Origin Energy Services Limited (OESL) after the power retailer was charged with failing to respond to multiple notices from Transport for NSW, an authorised officer at the time, requesting information on a driver that did not divert into a weighbridge.

Background

On 24 September 2021, a heavy vehicle failed to divert into a weighbridge as directed at 12-Mile in NSW. OESL was the registered operator of this heavy vehicle. Between 21 November 2021 and 26 January 2022, Transport for NSW issued three notices to produce to OESL requesting the name and home address of the driver in accordance with section 570A of the Heavy Vehicle National Law (HVNL). OESL did not respond to any of these notices.

Under the HVNL, failure to respond to such notices without reasonable excuse is an offence, with a maximum penalty of $10,000. It is not a reasonable excuse for a person to avoid these notices because complying might incriminate the person or make them liable for a penalty.

On 17 March 2022, Transport for NSW commenced a prosecution against OESL for failing to respond to the notices. OESL offered to enter into an EU, which was ultimately accepted. The NHVR took over the prosecution of OESL (and the regulation of heavy vehicles generally) from Transport for NSW on 1 August 2022.

Terms of the EU

The EU involved two initiatives:

1. OESL to develop a standard driver consequence management framework across all of its business units to monitor and improve driver behaviour and safety. The estimated cost of the initiative is $365,000. The proposed outcome for this first initiative is for OESL to increase its capacity to clearly articulate compliance expectations amongst the business and to continually monitor and assess compliance to achieve continual improvement in this area
2. OESL will sponsor the Australian Institute of Health and Safety to deliver heavy vehicle safety forums to health and safety professionals across Australia. The estimated cost of the initiative is $15,000. The proposed outcome for this second initiative is to increase awareness and tools provided to these professionals across Australia to improve heavy vehicle safety and compliance across various industries.

Both initiatives, with a total estimated cost of $380,000, are to be completed within 12 months of the NHVR accepting the EU.

NHVR’s reasons for accepting the EU

As with all EUs, whether the NHVR chooses to accept the EU is evaluated against its EU Guidelines, namely:

1. the nature and extent of the omission alleged
2. the person's compliance history
3. whether the EU delivers benefits to the public beyond the promisor's compliance with the law
4. the quality of the strategies proposed and the extent to which they are likely to achieve measurable improvement in heavy vehicle transport safety
5. the likely improvements in safety within the promisor's business or operations
6. the person's ability, including financial ability, to meet the terms of the EU
7. the significance of the commitment compared to the capability of the person
8. the support the person has provided, and has committed to providing in the future, to an injured or affected person(s)
9. input from injured and affected persons
10. the likely outcome should the matter be dealt with through legal proceedings
11. reports or assessments of investigating or prosecuting agencies conducting the matter.

Considering all of the above criteria, the NHVR concluded that the nature and extent of the omission alleged against OESL warranted the acceptance of the proposed EU.

Another example of the benefits of EUs over prosecutions

This is yet another example of NHVR’s preference for EUs over commencing or continuing prosecutions against companies for alleged breaches of the HVNL. It is easy to see why when you do a cost/benefit analysis.

As NHVR Director of Prosecutions Belinda Hughes aptly explained at the time of announcing the EU, “the value of this EU far exceeds the maximum fine the company would have received if this matter proceeded to court – with this outcome, the money will be reinvested into safety measures…the EU initiatives will deliver improved outcomes for an estimated five thousand staff employed by Origin energy (OESL’s parent company), as well as the wider transport industry.”

Authors: Nathan Cecil & Melanie Long

• This article was originally published in CoR Adviser. The article is © 2022 Portner Press Publishing Pty Ltd and has been reproduced with permission of Portner Press.

Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Nathan Cecil

Melanie Long

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