Are You Up To Speed On The (COR) Chain Of Responsibility New Laws?
Schedulers and their role in the Chain of Responsibility
08 April 2019
Published by Rebecca Niumeitolu
Schedulers occupy an important and unique role in the Chain of Responsibility (CoR). While their position in businesses may not attract the same level of risk, responsibility and attention as executives under the Heavy Vehicle National Law (HVNL), their responsibilities are by no means insignificant.
Indeed, industry-wide schedulers play a significant role in influencing and managing the safety of on-road transport activities. To appropriate the colloquialism often attributed to Uncle Ben in Spider-Man, with schedulers’ ‘great power’ there comes ‘great responsibility’. This article looks at schedulers’ great power and how they can exercise it responsibly.
Schedulers are persons who:
- schedule the transport of any goods or passengers by vehicle; or
- schedule the work times and rest times of the vehicle’s driver.
A person will be considered a scheduler under the HVNL regardless of the formal title they hold in a business or other roles that they play in the Chain.
Scheduler’s central obligations under HVNL arise under the primary duty in section 26C, which subsumed the scheduler-specific provisions of the old HVNL.
When considering the limits of scheduler’s responsibilities under the primary duty, schedulers should ask:
- how is or could my role in scheduling the transport of goods or passengers and driver work and rest times, be used so far as is reasonably practicable, to ensure the safety of transport activities?
- how do or can I use my position to eliminate or minimise public risks in relation to transport activities?
- how can I exercise my role to avoid directly or indirectly causing or encouraging drivers to contravene the HVNL, exceed speed limits or cause other parties to breach the HVNL?
It should be apparent to schedulers answering the above questions, that they have great power in effecting compliance with the HVNL and minimising public risks in relation to transport activities.
For example, say a scheduler rostered a driver to work over a period of 24 hours and to transport goods in that time for a journey that would take 14 hours, complying with speed limits. In making this decision and causing the driver to make that journey, not only would the scheduler be in breach of their primary duty, but they would also expose other CoR parties to liability under the HVNL and further risks to public safety:
- they risk causing the driver to work in excess of their work and rest times, which under the standard hours of the Heavy Vehicle (Fatigue Management) National Regulation (Fatigue Regulations) requires that a solo drivers not work over 12 hours in a 24 hour period
- they risk causing the driver to breach their obligation not to drive while impaired by fatigue by driving for a period in excess of work and rest times
- the scheduler’s conduct could also indirectly cause the driver to speed if the driver were mindful of compliance with work and rest times and accordingly attempts to deliver the goods in 12 hours rather than 14 hours. The same would apply more directly if the scheduler rostered the driver to make a delivery in five hours in respect of a route would take seven hours if the driver were to comply with speed limits
- added to this the scheduler’s conduct in the above example expose the transport company that they work for to be in breach of its primary duty
- this further exposes the executive of the company to liability in so far as the executive could be in breach of their duty to ensure the business’ compliance with its safety duties. This risk would be heighten if the scheduler regularly scheduled the transport of goods and driver’s work and rest times contrary to the HVNL and the executive were to do nothing about it
- by reason of the driver’s potential fatigue and speeding, the scheduler exacerbates risks to public safety.
The far-reaching ramifications of scheduler’s conduct on the CoR and public safety demonstrates that they should take great care when performing their functions. Transport businesses should also ensure that schedulers are properly equipped with training and resources to perform their role responsibly.
How schedulers can exercise their power responsibly
To responsibly exercise their functions in the CoR schedulers should:
- carefully review work and rest requirements under the Fatigue Regulations
- ensure compliance with any work and rest requirements under any BMF or AFM accreditations
- take account of the average speeds that apply to drivers’ journeys when scheduling their routes
- provide a ‘buffer’ for drivers’ schedules for poor traffic conditions and other delays
- keep communication lines open with drivers to keep schedulers updated on any events that could disrupt the drivers’ journeys, such as delays or if a driver is impaired by fatigue even if they are complying with work and rest hours
- never advocate to drivers that a schedule takes precedence over compliance with obligations under the HVNL or other transport laws
- report any scheduling breaches or incidents in relation to work and rest times, fatigue or speeding to the executives of the business or the relevant HVNL compliance officer for reporting to executives.
Recommending that businesses review their work practices and documenting these recommendations and any steps taken to remedy non-compliance, if it is the case that there are persistent fatigue, speeding or work and rest breaches.
Author: Rebecca Niumeitolu
* A version of this article was originally published in CoR Adviser. This article is © 2019 Portner Press Pty Ltd and has been reproduced with permission of Portner Press.