FUTURE OF THE NHVR IN A TECHNOLOGY WORLD
While the NHVR is still consolidating, it is important to look forward about what Road Freight Regulation should look like, based on current NTC policy, the work of the TCA and commercialisation of technology.
The creation of the NHVR is part of the long path to nationally consistent laws and uniform enforcement that has occurred in a highly dynamic Australian environment. During this period the NHV Law digressed from the policy plain that was emerging for WHS Law.
This misalignment has been recognised through the recent introduction of a general duty of care under the NHV Law and the proposals to rewrite the NHV Law to be consistent with the WHS Laws. This includes removing the “reasonable steps defence” for Codes of Practice from the NHV Law.
In business there has also been a maturing of views and understanding about managing hazards for business survival, rather than for red tape compliance.
Accordingly with advances in technology and realignment of the NHV Laws, it is timely to ask how should the road freight task be regulated in 2021.
INTEGRATION WITH SAFETY
A consistent (if not national) WHS approach has brought many benefits, including a simplified and direct way for responding to hazards and managing risks. This approach and the use of a PCBU (Person in Control of a Business or Undertaking) is a fundamental shift.
The introduction of a general duty into the NHV law, heralds further changes to align heavy vehicle safety with the broader WHS framework. It means most Police and NHVR interventions will occur after a breach of a WHS Law, ie: The heavy vehicle left the PCBU when it was in breach of WHS Law and then entered the road and the jurisdiction of the Police and NHVR.
Consistent with WHS and general safety principles there is a focus on root cause. For “on road” breaches; improperly secured loads; over mass; and over dimension, the PCBU has a WHS exposure. The PCBU has created an opportunity for an incident through not managing the hazard and allowing that hazard once created to leave the PCBU’s site.
Accordingly all preventative measures and follow up actions should be through the WHS Regulator. This is critical to ensure that any improvement made by the PCBU covers all aspects of the operation, including potentially WHS, Food Safety, Environmental and other laws and standards.
This also allows PCBUs to build on their existing (integrated) systems to incorporate heavy vehicle hazards into their Management Plans. Accordingly for there to be real and sustained improvement in secure loads, mass and dimension, it will be through referral of detected breaches to WHS Regulators for follow up and for site enforcement with the PCBU.
INTEGRATION WITH TECHNOLOGY
With the excellent work of the NTC to advance the usage of technology in Australia and the work of TAC to approve the hardware and software solutions, Australia is well placed to take advantage of technology in Heavy Vehicle activities.
In the near future technology will exist for “preventative” technology, ie solutions that prevent a breach; for Fatigue and Speed issues as well as Over Mass. As this point approaches, the current NHV Law solutions start to become redundant. Ie: who is fined for a speeding driverless truck?
Specifically NHVAS Accreditation will shift from focus on form filling and audit to adoption of technology. Leaving a parallel system such as the NHVAS will disadvantage adopters of technology.
Accordingly at some point in the near future with the changes to the duty of care, the phasing out of the “NHVL Code of Practice”, the imperative of technology and need for there to be benefits for adoption, the NHVAS will need to end.
In one way this process has already started for Codes of Practice, when the NHVR published “National Heavy Vehicle Regulator Registered Industry Codes of Practice: An Introduction (Draft)”:
“Under the proposed 2018 amendments to the HVNL, sections 618 to 625 would be omitted from the law. The majority of offences would be reframed as a positive duty to ensure the safety of transport activities, so far as is reasonably practicable”.
In plain speak: Codes of Practice will be abolished and the recent money given by the Commonwealth to fund preparation of Codes of Practice under the NHVL will be wasted.
WHAT SHOULD 2021 OVERSIGHT LOOK LIKE?
Given the need for smaller government and less red tape. A general oversight model for hazards related to heavy vehicles should look like the table below. This approach provides a number of efficiencies for business and realises the investment being made by the government (through the NTC and TAC). This approach also provides business certainty for the Telematics industry and its users.
This will also facilitate the adoption of technology solutions. Specifically where paper and “unmonitored” solutions prevail, operators will profit from “undetected” non-compliance (placing the public at risk). The incentive for adopting technology must be higher than just efficiency as all non-compliances will be detected, eg Speed and Fatigue.
For example the strategy should be to move all NHVAS accreditations for Mass and Fatigue (Speed) to real time IAP and phase out the NHVAS within 3 years of IAP approval.
As a side note Load / Unload clearly sit with WHS as it all occurs within the control of a PCBU. So too management of site traffic is a WHS matter. These issues are already covered by WHS Codes of Practice. Load/Unload has been included for completeness, as it is often referenced as the LUEZ Guidelines, rather than a Code of Practice.
In essence the current confusion created by theory that “detection on road, gives jurisdiction”, needs to be replaced by prevention through PCBU controls.
|Area||Oversight||Breach||Enforcement and Control in 2021||Detection Modes|
|Load / Unload||WHS||PCBU||WHS||WHS Inspection|
|Mass||WHS||PCBU||WHS through IAP||IAP|
In/ On road solutions
|Speed (NHV Law)||Owner of IAP Data||No breach||WHS through IAP||IAP|
Owner of IAP Data Police
|Fatigue||Owner of IAP Data||No breach||WHS (current WA scenario) through IAP||IAP|
Owner of IAP Data Police
This approach reflects the ongoing need for the NHVR as a data manager and for access manager. This also retains the NVHR as a specialist detection agency, with enforcement, but ensures that data is referred to WHS for more integrated approach to preventative strategies.
This also allows SafeWork Australia to continue its work to create informed standards through publishing the Codes of Practice and guidelines to guide industry and keep people safe.
CoR Management Plans
Changes to the NHV Law will allow businesses (PCBUs) to utilise Management Plans consistent with the Work Health and Safety Laws, Environmental Laws, Food Safety Standards, and with relevant application to their sphere of operation. Many businesses operate in multi-dimensional contexts and cannot afford to be operating under inconsistent compliance regimes requiring duplication for no gain. A CoR Management Plan provides the solution in the transport and logistics industry.
A “CoR Management Plan” can be a contractual requirement for providers or users of transport and logistics services utilising heavy vehicles.