In brief - Construction industry will be impacted by Heavy Vehicle National Law 2012 (Qld)
There are a number of important changes introduced under the HVNL, which were explored in a recent article
by transport and logistics Partner, Michelle Taylor. This article considers how those changes specifically impact upon the construction industry.
Construction companies may share responsibility for the safety of transport activities
One of the most important principles that underpins the HVNL is the concept of the "chain of responsibility" (CoR). The CoR assigns a legal obligation to any person who is involved in the supply chain.
It is well understood that owners and those involved in the operation of heavy vehicles are part of this CoR. However, the changes to the HVNL mean that companies and individuals within the construction industry may now share this responsibility. This is because the HVNL has introduced a new concept of liability for "transport activities".
Transport activities include any business practice or decisions made in relation to the use of a heavy vehicle on the road. This means that if a construction company hires or uses a heavy vehicle or engages a logistics provider (who subsequently uses a heavy vehicle) to deliver building materials to a site, they will have a duty to ensure that those activities are carried out safely. This obligation will equally apply to a principal or project owner supplying principal supplied materials under a contract to its own site.
Obligations on companies or individuals engaged in transport activities
If a construction company or principal is involved in transport activities, they will be required to ensure "so far as is reasonably practicable, the safety of the party's transport activities relating to the vehicle". This means that the construction company will need to take proactive steps to ensure for instance, that the heavy vehicle being used is roadworthy.
Directors and other persons involved in the management of a construction company should also be aware that they may be held personally liable for ensuring that their company complies with their safety duties under the HVNL.
Severe penalties will apply to corporations and individuals that fail to comply with these safety duties. Corporations could face a fine of up to $3 million, while individuals could be fined up to $300,000 or five years' imprisonment.
Implications of the Heavy Vehicle National Law 2012 (Qld) on construction contracts
Transport services are integral to the delivery of all construction projects. Accordingly, it is essential that all participants (owners, contractors and suppliers) are aware of the obligations imposed by the HVNL, and should take steps to ensure their contracts are amended to comply with these obligations.
The HVNL places a number of restrictions on what type of clauses may be included in a contract.
For instance, one of the new provisions of the HVNL prohibits a contract from directing or encouraging a driver of a heavy vehicle to:
- exceed a speed limit
- drive while fatigued, or
- exceed their maximum working hours
Companies that have existing contracts in place relating to the use of heavy vehicles, should ensure that the terms and conditions of those contracts:
- are not contrary to the HVNL
- do not seek to annul, exclude or restrict the effect of any provision of the HVNL or
- do not require a person to pay or reimburse all or part of a penalty that has been made against another person
The above mentioned provisions will apply to all contracts, irrespective of the date those contracts were entered into. Accordingly, all contracts currently on foot, should be reviewed and revised to ensure they comply with the HVNL.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.