01 March 2022
The National Heavy Vehicle Regulator (NHVR) has accepted an enforceable undertaking from the Lindsay Transport Group (Lindsay) after the death of a truck driver in November 2018 saw the trucking giant charged with three Category 2 offences under the Heavy Vehicle National Law (HVNL). This undertaking was proposed by Lindsay following an NHVR investigation into its safety policies and procedures and as an alternative to court proceedings.
The Lindsay case is just one example in a long list of undertakings adopted by trucking companies over the last 12 months. In this article, we unpack the requirements of Lindsay’s enforceable undertaking before looking at enforceable undertaking more generally, including when they will be accepted, their benefits and the costs of non-compliance.
The charges laid against Lindsay stem from alleged breaches of its primary duty, which exposed a driver to a risk of death or serious injury or illness without reasonable excuse. As part of this undertaking, Lindsay has committed to pledge $750,000 over a two-year period in an effort to mitigate future risks to driver safety.
The enforceable undertaking imposed five key initiatives which Lindsay must comply with to avoid future prosecution:
An enforceable undertaking is a voluntary agreement entered into by a party as an alternative to prosecution for an alleged breach of the HVNL. The NHVR will only accept an undertaking where they are satisfied that the party is willing and capable of complying with their obligations under the agreement.
Given the onerous long-term obligations they impose, enforceable undertakings are sometimes reserved for major breaches of the HVNL, but can be proposed in response to any charge. As part of the undertaking, parties commit to a range of different measures, including, by way of example, to:
In the Lindsay case, variations of all of these measures and commitments were included in the enforceable undertaking.
The availability of an enforceable undertaking will depend on the nature of the alleged offence, as well as the stage of proceedings.
Section 590A(1) of the HVNL prevents the NHVR from accepting an undertaking in relation to a Category 1 offence except in exceptional circumstances. By way of reminder, a Category 1 offence is when a party is found to have recklessly engaged in conduct that exposes an individual to a risk of death, serious injury or illness without reasonable excuse. Not surprisingly, an undertaking will also most likely be refused where the offence has already been prosecuted and proceedings have been finalised. In this way, a party cannot take a ‘wait and see’ approach with proceedings and then decide on the option they consider to be the ‘better’ outcome once they have been finalised.
Enforceable undertakings afford conceivable benefits, offering greater flexibility in outcomes to a party. Besides the obvious benefit of avoiding costly litigation, parties are also given the opportunity to improve their workplace and employee safety practices. However, the obligations imposed by an enforceable undertaking are not to be taken lightly. Any breach of an undertaking will be met with harsh penalties of up to $10,000. Parties also run the risk of having their enforceable undertaking discharged and their criminal prosecution revived.
Authors: Nathan Cecil & Melanie Long
The information in this publication 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.