Last week’s sentencing of a transport manager under Heavy Vehicle National Law has been described as “ground-breaking” by experts who warn it sends a strong message to executives across the country.
On January 23, the national operations manager of a transport company was sentenced to three years’ jail time, $100,000+ in penalties and costs, and a 12-month prohibition from acting in similar transport roles.
The case was in relation to a 2020 crash on Melbourne’s Eastern Freeway which saw four police officers killed by a heavy vehicle being driven by an impaired driver. The driver was found to be driving while fatigued and under the influence of drugs and alcohol.
The manager had previously been found guilty of a category-one offence (the most serious) under HVNL following a seven-month investigation that found fatigue-related breaches across more than 800 shifts – over 500 of which had been checked and endorsed by the supervisor, according to a summary of the judgement by the National Heavy Vehicle Regulator (NHVR).
The investigation also found evidence falsified timesheets under other employee names were used and approved by senior management to avoid detection.
NTI’s Supply Chain Technical Manager, Aaron Louws, says the case is a landmark as it is the first time in Australia an employee of a company has been found guilty and sentenced for a category-one offence.
He adds that while transport and logistics is highly regulated with a high standard held across the industry, the case is a reminder to individuals that the NHVR may bring charges against them personally, as opposed to only prosecuting their employer.
“The sentence sends a clear message to parties within the supply chain – the law will be enforced,” he says.
“What also makes this case ground-breaking is that the defendant was convicted as an ‘operator’ of a heavy vehicle for their failure to fulfil their primary duty.”
NHVR says a seven-month investigation found fatigue-related breaches across more than 800 shifts – over 500 of which had been checked and endorsed by the supervisor
An ‘operator’ is a person who is ‘responsible for controlling or directing the use of a heavy vehicle’ – but the Court held that this could also include the immediate manager or supervisor of drivers, and senior management who have responsibilities for the use and control of a heavy vehicle.
Previously, in November 2023, the company was charged as an operator with a category-one offence under the HVNL for failing to implement systems and procedures to properly manage drivers’ fatigue and/or fitness for duty.
Throughout the legal proceedings, it was noted the company’s policies and systems were not enforced or adequately implemented or adapted.
Additionally, the company’s managing director was charged as an executive with failing to exercise due diligence to ensure the company complied with its safety duty.
The company was convicted and fined $2.31 million following a guilty plea, and two of the company’s executives were convicted and fined, $70,000 plus $60,000 in legal fees for one, and $22,500 and subject to a Supervisory Intervention Order for the other.
The Court also made an order prohibiting the company from conducting any transport activities for a period of 12 months.
The driver was sentenced to 21 years’ jail time (reduced to 18.5 years after appeal) while his immediate supervisor is currently awaiting sentencing.
“There were multiple examples of non-compliance with many aspects of the policies in the areas of recruitment, screening, the training of new workers, drug testing, recording work/rest time, and adhering to work/rest requirements,” Louws adds.
NTI’s Aaron Louws says there were multiple examples of non-compliance in the areas of recruitment, screening, training, drug testing, recording work/rest time, and adhering to work/rest requirements
“The actual implementation and enforcement of company processes never happened, and if they had, it’s possible this incident may not have occurred.
“We can all learn from this situation. It’s important to prove our standards are in place, and as an industry we work together to ensure that our actions/inactions do everything so far as is reasonably practicable, to ensure this couldn’t happen again.”
NHVR Director of Prosecutions, Belinda Hughes, says the case demonstrates the shared responsibility for drivers to be fit to drive.
She points out that in the sentencing remarks, and during the hearing, the Magistrate stressed that managing directors cannot put their hands over their ears and eyes to avoid responsibility and must take positive steps to monitor and ensure compliance with the HVNL and company policies.
The Magistrate added that the managing director had some knowledge of the problem, was aware of the requirements under the HVNL, and took no action.
“The duty rests on the company and senior management just as much as the driver,” she says.
Hughes suggests key takeaways for executives include:
- Ensuring fatigue and fitness-for-duty policies and procedures comply with obligations under the HVNL and the Master Code;
- Making sure all workers are properly trained and inducted in how to identify and recognise risks of fatigue and/or fitness for duty and the company’s policies and procedures in relation to them;
- Having a system to deal with non-compliance of the HVNL and ensuring that system is monitored for compliance;
- Ensuring responses to any breaches of the HVNL are real and timely; and
- As an executive, remaining proactive in the organisation’s business activities and requesting regular briefings from staff to remain up to date with developments and risks.
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