Today’s question is about the NSW SES and the ‘heavy vehicle chain of responsibility’.

My correspondent says:

I understand that drivers within the service are responsible for their actions however the service now seems to be trying to instil that the national heavy vehicle chain of responsibility applies to all employees (including volunteers) across the organisation.

This seems like an overreach of that part of legislation, am I right or are they correct?

The Heavy Vehicle National Law is like other cooperative legislative schemes where each state and territory has passed similar laws to create a national scheme.  The Heavy Vehicle National Law as set out in the schedule to the Heavy Vehicle National Law Act 2012 (Qld) is adopted as part of the law of New South Wales by the Heavy Vehicle (Adoption of National Law) Act 2013 (NSW) s 4.  The national law says that the term

party in the chain of responsibility, for a heavy vehicle, means each of the following persons—

(a) if the vehicle’s driver is an employed driver—an employer of the driver;

(b) if the vehicle’s driver is a self-employed driver—a prime contractor for the driver;

(c) an operator of the vehicle;

(d) a scheduler for the vehicle;

(e) a consignor of any goods in the vehicle;

(f) a consignee of any goods in the vehicle;

(g) a packer of any goods in the vehicle;

(h) a loading manager for any goods in the vehicle;

(i) a loader of any goods in the vehicle;

(j) an unloader of any goods in the vehicle.

The heavy vehicle regulator says:

You are a CoR [Chain of Responsibility] party because of a function you perform, not because of a title or job description, or the words of a contract. If you engage in any of the above activities, you or your business are accountable for heavy vehicle safety according to your primary duty.

It may noted that the list, above, does not include the driver.  The Heavy Vehicle regulator says:

Driving is not one of the CoR functions. An employed driver is not a party in the CoR because they drive. Drivers have other duties and HVNL obligations.

Note: When a driver is performing another CoR function – such as loading a heavy vehicle – then the driver (and their employer) are ‘loaders’ and are parties in the CoR.

The primary duty of a ‘party in the chain of responsibility’ is (s 26C) to

(1) …  ensure, so far as is reasonably practicable, the safety of the party’s transport activities relating to the vehicle.

(2) Without limiting subsection (1), each party must, so far as is reasonably practicable—

(a) eliminate public risks and, to the extent it is not reasonably practicable to eliminate public risks, minimise the public risks; and

(b) ensure the party’s conduct does not directly or indirectly cause or encourage—

(i) the driver of the heavy vehicle to contravene this Law; or

(ii) the driver of the heavy vehicle to exceed a speed limit applying to the driver; or

(iii) another person, including another party in the chain of responsibility, to contravene this Law.

There are exemptions for the emergency services including an exemption from work and rest time requirements (s 265) and an exemption from work diary requirements (s 356).

I don’t really see the issue. The chain of responsibility obligations apply to all people who perform the tasks listed in (a) to (j) above.  If they are volunteers within the SES it still applies to them.  It doesn’t apply to ‘to all employees (including volunteers)’, only those that are performing the tasks set out above.  Exactly what the implications are for the SES I don’t know but presumably that is why the SES is rolling out training packages, so people can know what is expected of them. 

Conclusion

In the list of participants in the CoR only paragraphs (a) and (b) refer to a person who is an employer or who is employed.  There is nothing to suggest the other eight paragraphs wouldn’t apply to volunteers.  As the regulator says, it’s not the title or the contract that is important, it is whether you are performing the tasks described.

Proudly supported by (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of these supporters.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.