What is Primary Duty in the Chain of Responsibility Law?

What is “Primary Duty” in the Chain of Responsibility Law?

What is Primary Duty in the Chain of Responsibility Law?

As a business with a supply chain in Australia and a business interacting with the heavy vehicle transport industry in Australia, it’s necessary to understand the business and your personal legal obligations under the Chain of Responsibility (CoR) laws

One of the most important concepts to grasp is the “primary duty” – a legal requirement that applies to all parties in the supply chain who have influence or control over transport activities.

But what exactly is this “primary duty” and how does it affect your business? 

In this blog post, we’ll discuss the primary duty under CoR, what it means, who it applies to, and how you can ensure compliance. Most people consider this applies to transport operators, however its reach is across the supply chain parties and their people (director, executive), sender/receiver, or any other role in the supply chain. It is important to, understand and meet primary duty requirements to ensure road users are kept safe and transport operations are safe.

What Is the Primary Duty?

The primary duty is defined in the Heavy Vehicle National Law (HVNL) as the obligation to ensure, so far as is reasonably practicable, the safety of your transport activities. This means that you must proactively identify, assess, and control risks associated with your heavy vehicle operations.

It needs to be stated that two limbs of primary duty do not require a person to be injured or killed. The two limbs are strict liability where controls are absent.

The key phrase here is “reasonably practicable”. This means that you must take all steps that are reasonable in the circumstances to eliminate or minimise risks. Thus, a central component of complying with the HVNL is the Risk Assessment process. What is considered a “reasonably practicable measure” will depend on factors such as:

  • The likelihood of the hazard or risk occurring
  • The degree of harm that might result from the hazard or risk
  • What the person concerned knows, or ought reasonably to know, about the hazard or risk and ways of eliminating or minimising it
  • The availability and suitability of ways to eliminate or minimise the risk
  • The cost associated with available ways of eliminating or minimising the risk

It’s important to note that the primary duty is not just about meeting specific rules and regulations (compliance). It’s about taking a proactive, risk-based approach to safety management and being able to demonstrate that it is working.

Who Does the Primary Duty Apply To?

The primary duty applies to all parties in the CoR who have influence or control over transport activities. This includes:

  • Transport Activities:
    • Employers of drivers
    • Prime contractors of drivers
    • Operators of heavy vehicles
  • Supply Chain Parties:
    • Schedulers of goods or passengers for transport by heavy vehicle, including direct and indirect (eg: where brokers or agents arrange transport)
    • Senders or receivers of goods for transport by heavy vehicle, including direct and indirect (eg: where the items are warehoused by other parties (3PL, 4PL) and shipping containers with your items
    • Loaders or unloaders of goods
    • Loading managers (the person who supervises loading or unloading)
    • Packers of goods

It is important to note that these are terms the regulator applies to the actions of parties. Claiming that the conduct is not in the person’s position description or not within their authority, does not escape the reach and application of the COR Laws.

It should also be noted that a driver is not considered a person in the “chain of responsibility”. While the driver may be separately liable under the COR Law, this does not mean they will be fined where the cause of the COR breach rests with another party on the chain of responsibility.  

Parties in the Chain of Responsibility (CoR parties)

(Source: NHVR)

If you perform any of these roles, you have a primary duty to ensure people on the road are kept safe from your transport activities, regardless of whether or not you have direct control over the vehicle or driver.

It’s worth noting that more than half of the CoR functions relate to people and businesses that do not necessarily own or operate a heavy vehicle. A good rule of thumb is that when your business sends or receives goods via a heavy vehicle, it’s a party in the CoR.

For more detailed information about each role in the CoR, click here.

What Does the Primary Duty Cover?

The primary duty covers all aspects of your transport activities that you can influence or control. This includes:

  1. The transport of goods or passengers by road
  2. The packing, loading, unloading, or restraining of goods carried by road
  3. The scheduling of transport of goods or passengers by road
  4. The management of the fatigue of drivers
  5. The maintenance of heavy vehicles
  6. The training and instruction of drivers, loaders, unloaders, and other staff, contractors, and visitors

Essentially, if an activity is related to the use of a heavy vehicle on the road, it falls under the scope of the primary duty.

What Are the Key Focus Areas of the Primary Duty?

While the primary duty applies to all aspects of heavy vehicle operations, there are five key areas that parties in the CoR need to pay particular attention to:

  1. Speed – Ensuring vehicles do not exceed speed limits and speed is appropriate for the conditions.
  2. Fatigue – Managing driver fatigue, including complying with work and rest hours and keeping accurate records.
  3. Mass, dimension, and loading – Ensuring vehicles do not exceed mass or dimension limits.
  4. Load Restraint – Ensuring loads are appropriately restrained within the vehicle.
  5. Vehicle standards – Ensuring vehicles are roadworthy and well-maintained.

Parties in the CoR must have safety systems and controls in place to manage risks in these areas. This could include measures such as:

  • Risk assessment and management policies and processes
  • Regular vehicle maintenance and inspections
  • Training and education
  • Monitoring of driver work and rest hours
  • Load restraint procedures and equipment
  • Contractual arrangements that promote safe practices

What if There Is More Than One Party in the CoR?

In many transport operations, there can be multiple parties involved in the same transport task. When this happens, you need to be aware of your shared responsibilities.

Each party still has the primary duty to ensure safety so far as is reasonably practicable for the transport activities they can influence and control. However, the level of responsibility each party has depends on their ability to control, eliminate, or minimise risk.

For example, let’s consider a scenario where a consignor, prime contractor, warehouse manager, scheduler, and consignee are all involved in a single delivery within a large multi-site corporation:

  • The consignor can ensure that goods are ready on time for loading and properly secured, helping to manage the risk of driver fatigue and load restraint issues.
  • The prime contractor can ensure that the vehicle is properly maintained and equipped with appropriate load restraint equipment.
  • The warehouse manager can ensure that loading and unloading are conducted safely and efficiently, and that drivers are not unduly delayed or pressured.
  • The scheduler can ensure the trip is properly planned with adequate rest breaks and a safe, efficient route to manage the driver’s fatigue.
  • The consignee can ensure that unloading is conducted safely and efficiently, and that drivers are not unduly delayed or pressured.

In this scenario, senior managers have the responsibility to ensure that systems, policies, and procedures are in place, while site and middle managers are responsible to ensure their implementation. Each party contributes to safety in different ways, depending on what they can influence and control within their roles.

Consistent with this approach under the COR Laws, more than one party can be prosecuted for the same offence under the same set of facts.

What About Shared Contracts?

It’s important to understand that you can’t transfer or delegate your primary duty to another person or business, or lessen your responsibility through a contractual agreement.

However, contracts are a necessary and useful tool for working safely with other parties in the CoR. They allow you to:

  • Clearly document what each party does and how they do it
  • Set expectations about safety practices
  • Agree on terminology, processes, and equipment
  • Add facilities, training, and maintenance requirements
  • Name contact persons for each business and escalation procedures
  • Establish ways for monitoring, reporting, and continuous improvement

What Happens if You Breach Your Primary Duty?

Significant breaches of the primary duty, such as those resulting in a death, can lead to criminal charges. In these cases, responsible officers, including the CEO, could face jail time.

The penalties for breaching the primary duty are severe. Under the third limb, where a road user has been injured or killed, the following applies:

Entity Maximum Penalty
Corporation $3,000,000
Individual $300,000 or 5 years imprisonment

Executives who fail to exercise due diligence, and/or fail to pro-actively implement and maintain comprehensive systems and processes throughout their organisation, are subject to the same penalty as those who directly violate the primary duty. This underscores the importance of taking your CoR obligations seriously and ensuring that you have robust safety systems in place.

Who Has the Most Liability?

Under the CoR laws, all parties in the supply chain have a shared responsibility for ensuring safety based on their role, and their influence or control of the transport activity.

In general, the parties with the most control over the activity will have the highest level of liability. This often includes the senior executives of the company initiating the transportation event, the employer, or executives of the employing company of the driver, and/or the prime contractor.

However, it’s important to note that any company as a legal entity is considered a person conducting a business or undertaking (PCBU) under the Work Health and Safety (WHS) laws. 

Safety and COR are complimentary regimes to ensure the health and safety of workers and others who may be affected by the company’s activities.

That said, responsible officers of the company, such as directors and executives, have a positive duty to pro-actively exercise their powers to ensure that the company complies with its primary duty obligations. This includes taking every reasonably practicable measure to ensure the company as a whole follows the below six steps as set out by the NHVR:

Step One: Know and understand what your transport activities are.

Step Two: Identify the risks of your activities, starting with the main risks identified in the HVNL:

  • Fatigue
  • Speeding
  • Excessive mass or dimension
  • Poorly restrained loads
  • Unsafe vehicles

Also, think about the risks you can identify through:

  • Your own direct knowledge and experience
  • Regulations, codes of practice, research, industry guidance, NHVR web content

Step Three: Assess the risks.

Step Four: Find ways to manage the risks:

  • Comply with specific rules in the HVNL and its regulations.
  • Identify which transport activities you can influence and control, and which ones you can’t.
  • Read your codes of practice for recommended control measures.
  • Decide what safety procedures are reasonably practicable for your business to introduce, considering the risks involved, the available safety measures, and their suitability and cost.

Step Five: Implement appropriate control measures, such as:

  • Training or recruitment
  • Procedures
  • Forms and documentation
  • Equipment
  • Technology
  • Information collection and monitoring
  • Modifications to premises or vehicles
  • Auditing or inspection
  • Agreements or amended agreements
  • Subscribing to safety bulletins, education and training updates.

Step Six: Monitor the effectiveness of the controls and update them when needed.

Failure to exercise the primary duty can result in significant penalties for officers, equivalent to those who are found to be directly breaching the primary duty.

While all parties in the CoR have a primary duty to ensure safety, the company as an entity under the definition of a PCBU, (and thus its controlling responsible officers) has the ultimate control, and thus the most responsibility.

How Can You Comply With Your Primary Duty Obligations?

Having more than one breach notice issued under the COR Laws, would start to alert the regulator that things may not be right with your business. As more and more infringements notices are issued by the regulator, it becomes more likely that the regulator will commence a separate investigation into whether your business is meeting its primary duty requirements.

Once a primary duty investigation has started, it becomes difficult to manage as the regulator seeks more and more information about your business transport activities. Where a business is investigated by the regulator for a primary duty breach, the business may be forced into an Enforceable Undertaking.  

An Enforceable Undertaking sets in concrete the immediate and ongoing actions that the business must undertake and the money it must spend to rectify its business practices.

Complying with your primary duty obligations requires a proactive approach to safety management. Here are some key steps you can take:

1. Implement a Safety Management System

A Safety Management System (SMS) is a formal, documented system that helps you manage safety in a structured and systematic way. It should include:

  • Policies and procedures for CoR compliance
  • Clearly defined roles and responsibilities for all parties in the supply chain
  • Systems for managing speed/fatigue, vehicle selection and maintenance, load restraint, and other key risk areas
  • Processes for assessing, reviewing, monitoring and reporting on risks, incidents or accidents, and compliance metrics

2. Provide Training and Awareness

Ensuring that all personnel involved in your transport activities understand their CoR obligations is crucial. This can be achieved through:

  • Induction and ongoing training programs;
  • Ensuring the correct level of Nationally Recognised Training (delivered by an RTO, and resulting in the issue of a Statement of Attainment) is provided to the appropriate roles within the organisation;
  • Regular toolbox talks and safety meetings
  • Visual aids such as posters, brochures, and videos

3. Include Compliance Terms in Commercial Arrangements

When engaging with other parties in the supply chain, it’s important to include terms in your contracts that require them to comply with CoR and your SMS. This helps to ensure that everyone is on the same page when it comes to safety.

4. Monitor and Review Compliance

Compliance is not a once-off set-and-forget exercise. You need to continually monitor and review the performance of your SMS and the compliance of all parties in your supply chain. This can involve:

  • Regular audits and inspections
  • Incident reporting and investigation
  • Data analysis and trend identification
  • Continuous improvement initiatives

By taking these steps, you can go a long way towards meeting your primary duty obligations and ensuring the safety of your transport activities.

How CoR Australia Can Help

Navigating the complexities of CoR and primary duty can be challenging, especially for businesses that are new to the HVNL or have limited internal resources. This is where CoR Australia can help.

CoR Australia is Australia’s leading Chain of Responsibility training, consulting, and audit provider. We offer a range of services to help businesses understand and comply with their CoR obligations, including:

  • Comprehensive training programs
    • Vocational Education Training – Online, Remote and Face to Face
    • Industry Training – Online, Remote and Face to Face
    • Business (Customised) Training – Client Hosted, Online, Remote and Face to Face
  • Compliance audits and gap analyses
  • Risk reviews and supply chain analysis
  • COR activities and supply chain integration
  • COR refresh
  • Business briefings – CXOs, senior management, internal corporate stakeholders (legal, procurement, purchasing), system owners (Quality, Workplace Safety, Environment, Rail Safety, Food Safety)
  • SMS development and implementation
  • COR Management Plan development and implementation
  • Ongoing support and advice

Whether you need online or on-site training for your staff, on-site workshops, or ongoing consultancy support, our team has the knowledge and experience to keep your transport activities safe and legally compliant.

We can provide a solution tailored to your requirements with across support, training, and review.

Contact us today to discuss how we can support your business in meeting its primary duty obligations. With our expertise in CoR training and consultancy, we can help you ensure that your business is operating safely and compliantly.

Frequently Asked Questions

1. Do I have to eliminate all risks?

No, the primary duty requires you to eliminate risks “so far as is reasonably practicable”. Where it is not reasonably practicable to eliminate a risk, you must minimise it and/or add control measures as much as possible.

2. What if I’m not sure what my primary duty obligations are?

If you’re unsure about your primary duty obligations, the best thing to do is seek advice from a qualified professional. CoR Australia can provide guidance and support to help you understand and comply with your obligations.

3. What if I share a duty with another party?

It’s common for multiple parties to have a shared primary duty for the same transport activity. In these situations, each party must still do everything that is reasonably practicable within their sphere of control. Consultation and cooperation between parties is key to ensuring all aspects of the activity are being managed safely.

4. How often should I review my CoR compliance?

It’s recommended that you review your CoR compliance at least annually, or whenever there are significant changes to your business or the HVNL. Regular reviews help to ensure that your SMS remains effective and that you’re meeting your primary duty obligations.

5. What should I do if I identify a breach of CoR?

If you identify a breach of CoR or have received an infringement notice, it’s important to take immediate action to address it. This may involve:

  • Stopping the activity that is causing the breach
  • Conducting an investigation to identify the root cause of the breach
  • Implementing corrective actions to prevent the breach from recurring
  • Reviewing your SMS to identify any gaps or weaknesses

By taking prompt and appropriate action, you can demonstrate your commitment to safety and compliance, and minimise the risk of further breaches occurring.