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Overreach or oversight

As a software platform Unavin helps to automate processes and sharing of information and records between supply chain partners. Our background is in complex supply chains with complex relationships between businesses and their contractors. Many debates have been had with a variety of stakeholders regarding the line between overreach and oversight and where that line sits.

We see it as a spectrum that varies with the nature of the transport task and the way the business interacts with the drivers and Unavin aims to help businesses to have the appropriate oversight in varying circumstances without overreaching.

WHS / OHS Laws and the HVNL 

Whilst our main focus is on assisting customers to ensure on-road safety and demonstrate compliance with the Heavy Vehicle National Law (HVNL) and road rules, there is an overlap with primary work health and safety laws. The HVNL actually states that where it is not possible for a person to comply with both laws, the person must comply with the provision of the primary WHS Law. Regardless of which law the overarching principle applies to ensure safe systems of work are in place.

Victoria OHS Act example - vehicle maintenance

Under the OHS Act in Victoria section 21 Duties of employers to employees an employer must, so far as is reasonably practicable, provide and maintain for it’s employees a working environment that is safe and without risks to health. An employer contravenes that section if they fail to (amongst other things) maintain a plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health.

What happens when a prime contractor is engaging owner-drivers or other contractors?

Deeming contractors to be employees

Reading section 21(3) of the OHS Act (Vic) a reference to an employee includes a reference to an independent contractor engaged by an employer and any employees of the independent contractor. The duties of an employer under those subsections extend to an independent contractor engaged by the employer, and any employees of the independent contractor, in relation to matters over which the employer has control or would have control if not for any agreement purporting to limit or remove that control.

This means that the Act may consider the prime contractor as an employer of the independent contractor for the purposes of Occupational Health and Safety and require the prime contractor to oversee the contractors maintenance practices to ensure that their vehicles are maintained in a condition that is safe and without risk to health (so far as is reasonably practicable).

The amount of control the “employer” has or could have may vary with the circumstances of the engagement with the contractor.The risks should be assessed as part of the general audit related to an organisations transport activities and business practices and the subsequent development of appropriate controls.

Control and Influence in the HVNL

A review of sections 26A and 26B of the HVNL shows a similar obligation to the OHS Act (Vic):

Under section 26A Principle of shared responsibility the safety of transport activities relating to a heavy vehicle is the shared responsibility of each party in the chain of responsibility for the vehicle. The level and nature of a party’s responsibility for a transport activity depends on (amongst other things) the nature of the public risk created by the carrying out of the transport activity and the party’s capacity to control, eliminate or minimise the risk.

Under section 26B Principles applying to duties a person must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or

would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.

What you can do

Ensuring that safe systems of work for maintaining and inspecting vehicles are in place by/for your contractors including:  

  • Training, education, verification of competency
  • Documented responsibilities
  • Daily check processes
  • Fault recording / reporting / repair
  • Maintenance schedules and methods
  • Regular independent inspection 
  • Qualified and competent maintenance providers
  • Records and documentation
  • Internal review

How much of the above a business chooses to directly control for their contractors will depend on the level of control and influence they have over the activities.

Unavin’s contractor module will allow the contractor to inspect and maintain their vehicles and share the relevant information and records with others in the supply chain to assist them to oversee the maintenance processes (as required by the amount of control and influence they have over the activity).  

Because not all breaches are "REAL"

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