National Heavy Vehicle Regulator accepts first enforceable undertaking

The National Heavy Vehicle Regulator (NHVR) has accepted an enforceable undertaking from Laing O’Rourke Australia Construction Pty Ltd (Laing O’Rourke). This is the first enforceable undertaking of its kind to be accepted by the NHVR.

What is an enforceable undertaking? It is effectively a promise in writing which can be enforced by a Court and which binds the giver of the undertaking to perform what has been promised.

Enforceable undertakings can be a very effective and pragmatic tool used by regulators to enforce compliance with applicable laws. Unlike fines which have only a limited scope for bringing about changed behaviours, enforceable undertakings can achieve real corrective action and changed behaviours. For example, enforceable undertakings are used extensively by the ACCC ¹ in achieving quick corrective steps taken by corporations for the benefit of consumers without the cost, delay and uncertainty of litigation.

It is encouraging to see the NHVR adopting a similar pragmatic approach to enforcement of the Heavy Vehicle National Law (HVNL) in an attempt to bring about changed behaviours on our roads ².

Laing O’Rourke was accused of breaching the mass requirements under the HVNL as:

• in October 2018 a registered heavy vehicle operated by Laing O’Rourke was weighed and was found to be 21.2% in excess of its permitted weight; and
• in May 2019 a further registered heavy vehicle operated by Laing O’Rourke was weighed and was found to be 34.6% in excess of its permitted weight.

Transport for New South Wales (formerly the RMS) prosecuted Laing O’Rourke for these HVNL breaches. However, Laing O’Rourke offered to provide an enforceable undertaking to address the breaches. As such the NVHR was notified as it is authorised to accept undertakings of this nature under the HVNL.

The enforceable undertaking is targeted at improving procedures, awareness and education in relation to the HVNL and includes commitments to:

• ensure the actions which led to the breaches have ceased and will not re-occur;
• ensure the ongoing effective management of public risks associated with transport activities;
• disseminate information about the enforceable undertaking to workers and other relevant parties in the Chain of Responsibility; and
• participate constructively in all compliance monitoring activities of the enforceable undertaking.

These commitments also include the implementation of activities such as:

• providing Chain of Responsibility training to employees to increase awareness, knowledge and skills regarding Chain of Responsibility legislation;
• inviting external partners within the supply chain to participate in the Chain of Responsibility training; and
• completing a third-party transport safety management system audit.

Examples of the specific actions Laing O’Rourke undertook to complete include:

• developing a project plan and training plan for Chain of Responsibility training to be submitted to the NHVR;
• holding a consultation meeting on the training plan with the minutes of the meeting to be submitted to the NHVR;
• publishing online training courses and preparing a report on the completion of mandatory participants to be submitted to the NVHR; and
• engaging an external training provider, developing face-to-face workshops and materials and delivering 5 face-to-face training workshops.

The estimated value of the enforceable undertaking is $249,500.

In the reasons for the decision to accept the enforceable undertaking rather than continuing to pursue prosecution, the NHVR stated:

• there was no manifestation of the risk to public safety, road infrastructure or the environment;
• Laing O’Rourke had not previously been the subject of an enforceable undertaking under the HVNL or the Work Health and Safety statutory regime;
• Laing O’Rourke had not been convicted of any offence under the HVNL or breach of the Work Health and Safety statutory regime since commencing operation in Australia;
• Laing O’Rourke had not previously been convicted of breaching an enforceable undertaking;
• prior to giving the enforceable undertaking Laing O’Rourke had already made significant progress in rectifying its compliance and transport systems;
• the enforceable undertaking will deliver benefits to drivers, other parties in the Chain of Responsibility, the wider transport industry and the broader community;
• the total value of the enforceable undertaking is far in excess of the maximum penalties that the Court could impose for the offences;
• the enforceable undertaking is likely to achieve measurable improvements in the heavy vehicle transport industry internally as well as the wider supply chain;
• more education, systems and training will lead to fewer instances of overmass heavy vehicles; and
• Laing O’Rourke had given a commitment to deliver the undertakings in a staged approach in a realistic timeframe.

The acceptance of the enforceable undertaking indicates that the NHVR is open to accepting alternative means to prosecution for ensuring compliance with the HVNL in circumstances where genuine efforts to improve safety and compliance are made and the likelihood of broader benefits to the community and the members of the Chain of Responsibility is high.

In this instance both Laing O’Rourke and the NHVR considered this outcome to be the most appropriate and productive in the circumstances of that prosecution.

It is unlikely that enforceable undertakings such as this would be accepted in circumstances where actual harm has been caused to the community. However, this is an option that should be considered in circumstances where rectification of internal processes and broader benefits can be achieved, and no significant harm has been caused.

Members of the transport and logistics industry should seek advice on their options, such as providing an enforceable undertaking, if they are facing similar circumstances. The benefits have the potential of having a positive impact on a number of people just as a stone causes ripples when cast into a pond – it can be a positive outcome for the party being prosecuted, the prosecuting agency seeking compliance with the HVNL, the public purse, and the greater public who use our roads and have the right to feel safe on them at all times.

As always, Rigby Cooke’s Transport and Logistics team, led by Elizabeth Guerra-Stolfa, is available to assist.

¹ The ACCC website openly lists and records all enforceable undertakings accepted by it.

² The NHVR publishes enforceable undertakings here.