Is the National Heavy Vehicle Regulator guilty of hiding key reports on the effectiveness of Fatigue in Australia?

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The heavy vehicle industry is currently subject to an inordinate amount of regulatory review and reform, all focused on the common goal of achieving improved safety, productivity and efficiency outcomes.

One of the topics attracting attention is ‘assurance’ and how individual businesses can demonstrate their understanding and active management of safety and compliance to stakeholders, be that other transport companies, freight forwarders and customers. The Australian Trucking Association (ATA) has come out in favour of a voluntary accreditation system, approved by the National Heavy Vehicle Regulator (NHVR), as a way to appease the demands of supplier audits and deem compliance with the legal safety duties.

It’s been acknowledged by the NHVR and more recently by the ATA that the proliferation of customer compliance audits is costly and time consuming to the industry. 

Before committing to any assurance scheme, it’s useful to look outside the heavy vehicle industry and see what we can learn from the experience of other industries and jurisdictions. With the Heavy Vehicle National Law (HVNL) safety duties mirroring those in work health and safety law, there are valuable lessons to be learnt from the workplace health and safety journey.


The term assurance is used by the NHVR in its safety management system model to describe the process of internal checks and monitoring of safety management system performance.

The NTC assurance models paper takes this further and describes three levels of assurance – internal, stakeholder and third party. Once beyond the internal level, compliance with the assurance criteria may award the business accreditation to a recognised audit framework or standard. 

In the case of a supplier audit, the objective is to meet the customer’s criteria and gain or retain the work. Regardless of the level, assurance/accreditation schemes are reliant on documentation in the first instance, backed up with a snapshot of evidence of implementation. Put simply, does the business do in practice what it says it does on paper?

Read CILTA’s Hassall on assurance schemes, here

The three accreditation schemes within the heavy vehicle industry now are the National Heavy Vehicle Accreditation Scheme (NHVAS), the Western Australian Heavy Vehicle Scheme and Trucksafe.

While these are likely to be considered as third party schemes as audits are carried out by a qualified Exemplar Global third party auditor, the criteria and subject matter competencies have been developed within the industry and may not be fully understood or as widely recognised outside of the heavy vehicle industry.

Third party accreditation programs readers may be familiar with are those under the International Standards Organisation (ISO) banner:

•  ISO9001:2015 – Quality Management Systems

•  ISO45001:2018 – Occupational Health & Safety Management Systems

•  ISO14001:2015 – Environmental Management Systems.

As a point of difference to the Industry accreditation schemes, these audit frameworks are globally recognised and approved by the ISO. The framework for such a standard is scrutinised by a panel of international experts and must be approved at government level. Industry programs are not subject to this rigour.


Assurance or accreditation schemes (we’ll call it accreditation) have existed in work health and safety since the 1990s and there has been much research done to examine their effectiveness. The heavy vehicle industry is not the lone ranger.

There are many years of experience to draw upon to help understand the efficacy of accreditation schemes, the costs and benefits and their relationship to improved safety outcomes.

Accreditation schemes are built around management systems. The auditor will conduct a desktop audit – review documentation, looking to verify that what is done on paper is done in practice, issues raised are actioned and closed out and there is a proactive approach with management oversight. 

As an auditor and a consultant who has helped many businesses prepare for third party certification audits, there are ways to show the auditor what you want and hide what may be detrimental to the cause.

It is widely stated that the heavy vehicle industry is made up predominantly of small business (as much as 98 per cent) and as far back as 2003, research questioned the applicability of safety management systems to small employers and noted they are most easily applied in larger organisations with more safety knowledge, resources and training available. 

So although accreditation schemes are said to be suitable for all size businesses, small business is disadvantaged and many have the added expense of using a consultant for the preparation and the audit process. Let’s not forget, all third party assurance programs are commercial ventures.


Can the NHVR run the scheme, as suggested by the ATA? 

There are comparisons made between the heavy vehicle industry and rail. The Office of the National Road Safety Regulator (ONSR) directly employs auditors (rail safety officers) to carry out rail safety audits against the requirements of Schedule 1 of the Rail Safety National Law National Regulations 2012.

The profile of the heavy vehicle industry compared to rail is vastly different. To quote the Productivity Commission report, the heavy vehicle industry has more than 39,000 operators and 890,000 registered vehicles while rail has 184 accredited operators and about 2,200 locomotives. The scale of a centralised, regulator controlled accreditation scheme for heavy vehicles is mind boggling.


In the health and safety space, we have been through this. Management systems were once considered the panacea, but 20+ years later, safety is working its way through the concept of ‘safety clutter’. Policies, procedures and forms that are designed for a safety management system which does not always equate to a safer workplace or work practices. We have learned that ‘work as imagined’ by the people who write the safety management system is not how ‘work is done’. 

When you have that disconnect between the paper and the practices, what value is the safety management system adding?


The industry is already under pressure from rising costs, so to make any voluntary assurance scheme attractive, the cost to participate could be offset through some tangible benefits in addition of course to the expected outcomes – improvements in safety, efficiency and productivity. 

The NTC Industry Advisory Group on Assurance has a very important role to play in getting this right and ensuring an even playing field for this very large and diverse industry.

Denise Zumpe is a qualified and experienced consultant with practical industry knowledge in work health and safety and heavy vehicle safety and compliance, establishing SafeSense Workplace Safety in 2010. She is one of three representatives of the Australian Institute of Health and Safety (AIHS) participating in the HVNL review.

Queensland Parliament’s Transportation and Utilities Committee is seeking submissions on amendments to national heavy vehicle and rail safety laws.

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Queensland Parliament’s Transportation and Utilities Committee is seeking submissions on amendments to national heavy vehicle and rail safety laws.

While part of the Heavy Vehicle National Law and Other Legislation Amendment Bill 2016 relates to the taxi industry, the heavy vehicle aspect focuses on Chain of Responsibility (COR).

Queensland is the host jurisdiction for this national law.

The amendment aims to “implement reforms for the national heavy vehicle industry to better align the align the obligations of chain of responsibility parties and executive officers with national safety laws, improve compliance and simplify enforcements as well as making a number of minor amendments to improve administration of the law”.

Queensland transport minister Stirling Hinchliffe tells state parliament that the changes haveTransport and Infrastructure Council backing following “extensive” National Transport Commission (NTC) consultation “with state and territory transport authorities, police agencies and heavy vehicle industry representatives”.

Long expected, the changes would introduce a positive duty on COR parties and executive officers to ensure the safety of their operations.

Each party in the chain of responsibility would have a primary duty of care, so far as reasonably practicable, to ensure the safety of their transport activities.

In addition, executive officers are required to exercise due diligence to ensure their operations comply with this primary duty.

“In effect, chain-of-responsibility parties must ensure that their conduct does not cause or encourage drivers, or another person, to contravene the national law or to exceed a speed limit,” Hinchliffe says.

“While terms and concepts such as ‘reasonably practicable’ and ‘due diligence’ are new to the national law, they are familiar to transport operators.

“The proposed amendments act to harmonise safety initiatives within the national law with the national model Work Health and Safety Act by using the same framework and principles.”

He casts the measures as leading to a regulatory burden reduction.

“By replacing the current standard of ‘all reasonable steps’ and the reasonable steps defence with the ‘so far as reasonably practicable’ standard, transport operators will be able to manage all their heavy vehicle safety obligations under one framework,” Hinchliffe says.

“By reframing the chain-of-responsibility provisions in the national law to reflect a principles based approach, the efforts of each relevant party can be focused on proactively identifying and managing safety risks in a way that best meets their individual business needs and allows for innovative responses to safety concerns.”

The often criticised reverse onus of proof will end but roadworthiness and vehicle standards will become part of the primary duty of care and enforceable undertakings will be introduced as an alternative to prosecution for certain offences.

Such measures could include regular internal audits, training for managers and staff, or future reporting requirements to the National Heavy Vehicle Regulator.

Other changes include self-clearing defect notices and failure to display accreditation labels offences.

“The National Heavy Vehicle Regulator will also be authorised to make minor administrative amendments to road access statutory instruments without the requirement to seek additional road manager consent,” Hinchliffe says.

“In addition, responsible ministers, under certain circumstances, may delegate their approval powers to the National Heavy Vehicle Regulator Board to facilitate the making of minor amendments to guidelines and statutory approvals.”

Comprehensive guidelines will be formulated.

Explanatory notes can be found here.

The Rail Safety National Law Bill aims to apply the Rail Safety National Law (RSNL) as the law of Queensland and establish the Office of the National Rail Safety Regulator (ONRSR) as the rail safety regulator in Queensland.

This Bill proposes to:

  • apply the RSNL, as modified by the Bill, as a law of Queensland
  • repeal the Transport (Rail Safety) Act 2010
  • define a number of terms to aid in the interpretation of the Rail Safety National Lawin the Queensland context
  • provide for drug and alcohol testing of rail safety workers using procedures that are consistent with the procedures used by the police under the Transport Operations (Road Use Management) Act 1995
  • provide transitional arrangements.

Submissions can be sent to [email protected]

For More Information on Chain of Responsibility Training, Audits and COR Management Plans go to

Brisbane Traffic: Fatal Bruce Highway on-ramp truck crash

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Brisbane Traffic: Fatal Bruce Highway on-ramp truck crash

The truck driver in his 30s died when his semi-trailer rolled at North Lakes on the Anzac Avenue on-ramp to the Bruce Highway just before 2.30am.

TOLL Petrol tanker crash, rollover on Calder Freeway

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Despite years of Chain of Responsibility Laws and the work of the NTC and the NHVR, governments have not addressed this issue.  The Toll, Calder Highway deaths and injuries, following the Cootes, Mona Vale deaths and injuries, are just two examples of unnecessary exposure of the public to unacceptable risks.  The fuel not igniting saved this from being a national disaster greater than Cootes. The contamination of the waterway with fuel and fire suppression material is also unacceptable.

Emergency services were called to the Calder Freeway on Tuesday when the Toll petrol tanker travelling outbound collided with a number of vehicles.   The truck has then struck a number of other cars.  One car was crushed under the truck during the incident and investigators are still in the process of determining how many people were in that vehicle, however at least one person has been confirmed deceased.  Six others were transported to hospital with injuries including the truck driver.

Being the “norm” does not make it acceptable for exposure of people to certain death.  This is not required.  This is not effective or efficient.  This is illogical conduct at 8AM for a weekday morning to have a Petrol Tanker in peak traffic.

While supply of petrol is essential, there is no basis for peak hour transport of fuel.

Peak hour traffic correlates with:

–               Higher number of vehicles on the road

–               Greater number of incidents per hour than other times of the day

–               Greater congestion, with more stop start traffic, especially at on/off ramps

All factors making it certain for a city peak hour collision involving a petrol tanker.

Petrol Tankers are inherently dangerous and bring with them hazards of:

–               Multiple deaths (collision and fire)

–               Multiple injuries (collision and fire)

–               Escape of fuel into the environment and potential fire

–               Potential for immolation and damage to public infrastructure

–               A broader impact than conventional heavy vehicles

All factors having catastrophic consequences for petrol tanker collisions.

Managing this certain and catastrophic consequence is left to the effectiveness of heavy vehicle drivers. This simplistic approach can be further compromised by:

–               Lack of maintenance and/or defective equipment

–               Tired driver or stressed driver (even if complying with fatigue rules)

–               Poor or changed driving conditions

–               Conduct of other road users and extra congestion

Directors and Executives who expose the public to certain death in peak periods should assess the risk and whether they are breaking not only COR Laws but also the WHS Laws in failing to eliminate the hazard.

Directors and Executives could potentially be held directly and personally liable under WHS for peak hour petrol tanker incidents, especially given the limited practical reach of the NHV law in the Cootes Mona Vale deaths.

TWU calls on retailers to do better on chain of responsibility

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Serious compliance shortcomings at a major Coles distribution centre show retailers are not doing enough to meet their chain of responsibility obligations, according to the Transport Workers Union (TWU).

TWU national secretary Tony Sheldon has seized upon the findings of last week’s inspection of Coles’ Eastern Creek centre to demand the big end of the supply chain lift its game on heavy vehicle compliance.

The Roads and Maritime Services (RMS) and New South Wales Police uncovered defective trucks, load restraint breaches and drivers with drugs in their systems.

“This raid by the NSW RMS shows the scale of the problem in our retail supply chain,” Sheldon says.

“Wealthy retailers and other clients need to take responsibility for safety in transport by ensuring the contracts they give out allow operators and owner drivers to cover their entire costs. This is clearly not happening at the moment, which is why high numbers of truck defects and problems with load restraints have been discovered.”

A statement from Coles, however, says the company is serious about meeting its obligations.

“Coles takes road safety and its chain of responsibility obligations very seriously and always responds immediately to any concerns raised by authorities or the companies we partner with,” a company spokesperson says.

Yesterday’s operation was the third Coles distribution centre inspected in 18 months, and the RMS says it is continuing to see poor safety practices.

RMS director of safety and compliance Peter Wells says “rapid cultural change” is needed within Coles’ ranks.

Sheldon says retailers need to also engage with unions and the Road Safety Remuneration Tribunal (RSRT) to ensure transport companies and their drivers receive sustainable rates so they can do their jobs safely.

“If this does not happen the pressure will continue. Trucks and drivers will be sweated to the point of putting all road users at risk,” he says.


Report suggests that improving road access for heavy vehicles can significantly cut down red tape

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The Australian Logistics Council (ALC) supports New South Wales government’s plan to move forth with council amalgamations that it hopes will improve the efficiency of the state’s supply chain by streamlining delivery of freight to local areas.

Council amalgamations will also improve the ‘delivery of major infrastructure, achieve more efficient service delivery and help to better integrate strategic planning and policy’

ALC managing director Michael Kilgariff says the NSW freight task is expected to double in size by 2031 to about 800 million tonnes and “it is imperative NSW’s supply chains are operating at peak efficiency to ensure freight can be delivered efficiency, reliably and safely”.

The logistics industry had earlier raised its concerns to the Independent Pricing & Regulatory Tribunal (IPART) about councils either not having the capacity to make timely decisions on heavy vehicle road access, or being too conservative during decision-making by prioritising asset protection over productivity considerations.

“Because of a lack of size, many local government areas do not have the skills and resources, or alternatively, do not prioritise the task of undertaking, or obtaining, the engineering assessments necessary to make informed road access decisions,” Kilgariff says.

“All too often, and to the frustration of industry, councils take different approaches to such things as ‘last mile’ access, the loading and unloading of goods, delivery curfews and other restrictions which impact on the efficient movement of freight.

“Merging councils would not only bring with it economies of scale, it would underpin better decision making on such matters as road access decisions, particularly as they related to ‘first and last mile’ issues, as well as planning and curfews,” Kilgariff says.

The move is also expected to improve the “delivery of major infrastructure, achieve more efficient service delivery and help to better integrate strategic planning and policy”.

Reports suggest that improved freight efficiency also indirectly benefits the consumers because it reduces the costs of transportation of goods to supermarkets, which in turn lowers the price of products.

An earlier study conducted by the IPART estimated that heavy vehicle access restrictions cost $366 million per year in NSW and improving road access for heavy vehicles can reduce red tape by $59.2 million per year.

ACIL Allen, the largest Australian-owned, independent, economic, public policy, and public affairs management consulting firm in the country, published a similar view in a recent report entitled The Economic Significance of the Australian Logistics Industry.

The ACIL Allen study indicates that an annual 1 per cent improvement in productivity in the logistics industry can boost the GDP by $2 billion.

Dangerous Good Training – Here’s Why This is Important if You Own or Hold a Position of Responsibility in a Company

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At the heart of the Work Health and Safety (or WHS) legislation is the ‘duty of care’ which means that we all have to take reasonable care to make sure our actions (the things we do) or our inactions (the things we don’t do) do not negatively Dangerous Goods Australian Standards impact others or cause them harm.

Under the legislation, the term ‘person conducting a business or undertaking’ or ‘PCBU’ is a more comprehensive term than ‘employer’. The PCBU has a responsibility to manage the risks from all dangerous goods and hazardous materials in the workplace. This includes providing instruction, training and information. The term ‘worker’ refers to anyone carrying out work for a PCBU. As a worker, you must follow all workplace procedures to protect yourself and others from dangerous goods and hazardous substances. There are a range of additional specific laws, regulations and codes of practice that apply to dangerous goods or hazardous substances in the workplace.

Currently there are two introductory Dangerous Goods & Hazardous Substances courses including:

  • Introduction to Dangerous Goods & Hazardous Substances (Level 1)
  • Dangerous Goods & Hazardous Substances – Distribution & Receiving (Level 2)

Our range of convenient course delivery methods means we can provide these courses to your workers how and when you want to!

Go to to find out more.

Chain of Responsibility versus WHS……. the real facts.

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A landmark work health and safety (WHS) ruling continues to have prosecutors guessing a Clayton Utz lawyer notes.

One of the more recent outings, Archer v Simon Transport Pty Ltd, hinged on this very case, senior associate Hilary Searing says.

The 2010 Kirk v Industrial Court of NSW findings underlined that prosecution of alleged breaches of WHS requirements must identify what measures an employer or operator could have taken but did not take to avoid such an incident.

“For some time since Kirk, prosecutors have grappled with the necessary level of detail required in a charge,” Searing writes in an advisory.

And those in the Queensland District Court failed to arrive at an effective remedy in the Kevin Archer case.

In the Simon case, the Queensland WHS Regulator alleged the company breached its statutory duty of care when a worker was injured while unloading one of its trucks at a customer’s work premises.

Searing notes that in its complaint, the Regulator specified that Simon Transport failed to ensure, so far as was reasonably practicable, the health and safety of its worker by failing to:

  • develop and implement adequate work procedures to manage the hazards for sole drivers
  • develop safe work procedures for the unloading of bulk rolls of electrical cable at a client’s premises
  • undertake any, or any adequate, risk assessment for this unloading in accordance with the Code of Practice How to Manage Work Health and Safety Risks 2011
  • develop any , or any adequate safe systems of work in accordance with the Plant Code of Practice 2005
  • provide a standard of work health and safety which was the same or higher than the relevant Codes.

It further stated that Simon Transport could have implemented a number of control measures to prevent the situation, essentially by repeating the allegations listed in the paragraph above.

But the Magistrate’s Court struck out the complaint in May because it failed to sufficiently set out the legal nature of the offence and its essential factual ingredients.

The Regulator appealed the decision.

But District Court judge Koppenol noted that the regulator’s complaint merely recited the alleged failures rather than identifying how the relevant work procedures, standards and systems fell short of what was alleged to have been reasonably practicable.

Judge Koppenol also said that the specified control measures did not “cure those deficiencies or provide any meaningful particularisation” and instead served to repeat the alleged failures listed in the complaint.

“This reaffirms the need for prosecuting authorities to sufficiently identify the nature of the offence and how the employer fell short of the expected standard and will allow employers to be in a better decision to defend these matters by knowing exactly where it is alleged they fell down in their duty of care,” Searing says.

“The employer can then attempt to satisfy the Court that it was not reasonably practicable to take the identified measure in question, as opposed to having to establish that there were no reasonably practicable measures of any kind which could have addressed the risk (as has previously been necessary with the way that complaints were framed).”

She sets out the following checklist for employers faced with such a prosecution to bear in mind:

  • a defendant is entitled to be told not only of the legal nature of the offence which is charged, but also of the particular act, matter or thing alleged as the foundation of the charge
  • the complaint must inform the court of the particular offence with which it is required to deal and provide the accused with the substance of the charge which he or she is called upon to meet
  • the charge “must at least condescend to identifying the essential factual ingredients of the actual offence”
  • a complaint must specify “the time, place and manner of the defendant’s acts or omissions”
  • the complaint must identify the measures which should have been taken. If there is or was a risk, the question is: what action on the part of the employer was or is required to address it? The answer to that question is the matter properly the subject of the charge
  • where it is alleged that a specific statutory provision, or a code, or a guideline or the like has been breached, the relevant provision must be identified.

Employers urged to focus on Kirk ruling in WHS cases

New requirements for companies and individuals transporting dangerous goods will take effect on January 1, 2017.

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Updated Dangerous Goods Code includes changes to licensing, placards, packing instructions and more including Training on a yearly basis for all staff.   

Courses available at:

New requirements for companies and individuals transporting dangerous goods will take effect on January 1, 2017.

The National Transport Commission (NTC) has released the an updated version of the Australian Dangerous Goods Code, which includes changes to rules governing licensing, placards, packing, labels and more.

The NTC says the revised code, which incorporates United Nations and Australian changes, has been updated to align with international standards and meet community and industry needs.

The dangerous goods sector can continue using the existing code (edition 7.3) until the beginning of 2017.

“The Code is an important technical resource to help Australia’s transport and logistics industry to operate safely when carrying dangerous goods,” the latest edition states.

“It is important that all members of the supply chain understand and work to the requirements of the Code, including the consignor, packer, truck driver and dangerous goods transport companies, along with dangerous goods professionals and trainers.”

Amendments include the addition of new materials to the list of dangerous goods, changes to lithium battery transport requirements, a new rule on placards and a restriction on drivers with provisional or learner licences.

“The definition of a driver licence has been broadened. It clarifies that drivers on a provisional or learner licence cannot hold a dangerous goods licence,” the new code states.

“It is an offence for consignors, loader, prime contractor or driver to transport dangerous goods with an incorrect placard.”

The new code does not cover the transport of explosives, radioactive materials, infectious substances, the usage, storage or security of dangerous goods or waste products unless they are transported with other dangerous goods.

NTC CEO Paul Retter says the latest edition will continue to promote safe dangerous goods transport practices while helping reduce the administrative burden on companies.

“The latest edition should cut red tape for importers and exporters because the code is now more consistent with air and sea requirements for dangerous goods transport and is also more in line with overseas requirements,” Retter says.

“It is very important that people reading the code also read the dangerous goods legislation in their jurisdiction.”

Retter says the code is reviewed every two years to meet the changing needs of users and keep pace with the latest UN regulations.

Concerned drivers call NHVR over fatigue management issues

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Truck drivers are unsure about how to count work and rest time correctly under fatigue management law.  Rest-area-sign

A recent spate of calls from truck drivers to the National Heavy Vehicle Regulator (NHVR) about fatigue management has prompted a reminder about how to comply with the law.

The NHVR says it has received a number of enquiries from drivers about how to count work time correctly to ensure they do not exceed their permitted work hours within a 24-hour period.

The agency yesterday sent a memo to industry about correct counting procedures and adds that explanations can also be found in work diaries drivers are required to maintain.

Those under standard hours can work 12 hours in a 24-hour period, while drivers with basic fatigue management (BFM) accreditation can work 14 hours.

Some of the questions lodged with the NHVR relate to counting a 24-hour period, when the 24-hour period restarts and if drivers can resume work immediately after taking a major rest break.

“A 24-hour period starts at the end of any relevant major rest break, which is any period of rest of at least 5 or 7 continuous hours (depending on your work and rest option),” the NHVR memo states.

“The 24-hour period ends 24 hours later (at the exact same time on the following day), regardless of how much work you have done or rest you have taken during that time.

“It is important to remember that the 5 or 7 continuous hour period for a major rest break is the minimum amount of continuous rest required in a 24-hour period.”

The NHVR has sought to remind drivers that taking a major rest break will not reset a 24-hour period.

“A major rest break during this time will only start another 24-hour period. This means that a solo driver (under Standard Hours) who works 12 hours in a 24-hour period must also have a total of 12 hours rest,” the NHVR says.

It adds that resuming work immediately after a major rest break depends on how many hours a driver has worked in the relevant 24-hour period.

“If you have worked less than your maximum work hours for that 24-hour period, you can work any remaining hours after finishing your break,” the NHVR says.

The NHVR became responsible for fatigue management when the Heavy Vehicle National Law took effect in Queensland, New South Wales, Victoria, South Australia, Tasmania and the Australian Capital Territory.