Another outcome from the meeting of Transport Ministers, at the beginning of the month, is changes to the way the chain of responsibility is made to work. These changes look to bring the COR rules more in line with those governing workplace health and safety, to which they are closely related, and overlap at some points.
The new rules look like they could make the COR rules more trucking company friendly, but we cannot be sure. New legislation rarely delivers easier compliance for the road transport industry. However, going to
There will now be a primary duty of care, which makes it incumbent on all parties in the chain to ensure the safety of road transport operations.
However, reading this reminds me of what Gillian Bristow, Road Transport Lawyer for Cooper Grace Ward, said to the delegates at this year’s NatRoad Conference in Brisbane.
“The operator is the obvious one, when something goes wrong,” said Bristow. “I think trucking operators are the ones who have got the most lose out of COR. In a sense, COR doesn’t always reflect the commercial realities, operators are not likely to ‘dob in’ your customer.
“If you have a really big customer and something goes wrong, it’s not necessarily in your commercial interest to point out the reason something happened is because your biggest client created a problem. Smaller operators are absorbing the flak which comes out of some incidents. I don’t think the legislation reflects that, and I’m not sure it can.”
This situation is not going to change.
Something a bit more likely to help us is the changes to due diligence obligations for executive officers. The wording goes like this, ‘if a corporation commits an offence, each executive officer who authorised or allowed the offence, also commits an offence’. This is the language the big boys understand and they are going to have to create a major paper trail to prove they have done the right thing.
Many will be relieved to see the change from the reasonable steps defence to the more pragmatic, reasonably practicable. Words like, ‘operators, prime contractors and employers must ensure as far as practicable, the safety of their road transport’ sounds much more like something we can live with.
The COR is also slated to move further up the chain than it currently does. Whether this is going to have a positive impact for trucking is debatable. The words of Bristow in Brisbane ring true in this instance. The bigger the customer, the bigger the problem.
The last item could go either way, increased penalties for serious safety breaches. The levels haven’t been formally agreed, but it is going to see a big jump in levels of punishment. They have been talking about $300,000 fines for individuals, $3 million for corporations and five years in jail being on the agenda.
This is going to make the major players think very carefully about their position. It also means the lowly trucking subbie is also going to have to think twice about not dobbing in the big customer.
Good news, they have taken some very prescriptive rules and made them into a general duty to operate safely. Bad news, mess it up and you could be looking at insolvency or jail time.