Employment contracts, training and record keeping in the mix
Heavy Vehicle National Law (HVNL) reforms will put added pressure on companies’ human resources task, lawyers warn.
With responsibilities cast more broadly following inclusions to Chain of Responsibility (COR) laws last month, Rigby Cooke partners Simone Caylock and Elizabeth Guerra-Stolfa believe businesses involved in the heavy vehicle transport supply chain “must take a holistic and preventative approach to compliance”.
“This includes ensuring that employees are aware of and understand their obligations and the requirement to comply with all relevant company policies and procedures to avoid heavy penalties being imposed on persons, companies and their executives,” they say
As a minimum, employment contracts, for both award and non-award employees, should contain a general ‘company policy compliance’ clause, the lawyers advise.
This would state that the employee is required to comply with company policies and procedures as varied from time to time.
It should also be clear that a failure to do so can result in disciplinary action, up to and including employment termination.
“Employment contracts often also contain a workplace health and safety clause which goes further and includes, for example, an acknowledgement by employees that they will act in a manner which promotes workplace health and safety for themselves, other employees, customers and members of the public,” the lawyers say.
“From a best practice perspective, it is also prudent to expressly refer to COR obligations.”
This could be incorporated into one of the above general clauses or inserted as a stand-alone clause but should include:
– acknowledgement that the employee is aware of and understands his/her obligations under CoR legislations and regulations
– an undertaking that the employee will comply with those obligations and the company’s COR policies and procedures at all times
– a commitment that the employee will ensure, as far as is reasonably practicable, the safety of any transport activities s/he is involved in during the course of the employment (eg driving, loading, unloading, packing, scheduling)
– a requirement to immediately report any accidents, near misses, incidents or hazards
Any amendments should be incorporated into employment contracts for new employees.
For existing employees, the lawyers advise managers consider whether it is appropriate to roll out new contracts, taking into account workforce size, timing of remuneration increases, whether contracts have been updated recently and other such issues.
Alternatively, existing employees should be required to sign a stand-alone written acknowledgement in substantially the same terms, preferably issued with the company’s COR policy and/or when they attend COR training.
The past year has seen commentators highlight the importance of credible measures being in place and the dangers of paying lip-service or box-ticking, given the reforms are aimed at closing down such approaches.
Working with relevant people within the business, or using external resources if necessary, HR managers should ensure that comprehensive training is rolled out to all employees who are involved in transport activities covered by the HVNL.
“To be most effective, the training should be tailored to the role/work area of the employee and cover the company’s COR policies and procedures,” the lawyers say.
“Executives, managers and anyone else who is ‘concerned or takes part in the management of the corporation’, even if not formally employed or remunerated as managers, should also receive specific training on their personal responsibilities and liability under the new HVNL.”
After the initial training, refresher and new employee training programs should also be developed.
Though it was not mentioned in the lawyers’ advisory, the importance of having documentary proof to counter any doubts over a company’s approach to safety was underlined early this year in the Fred’s Transport speeding case, where the magistrate took into consideration the weight of evidence of a serious safety approach.
“As with other compliance areas – such as safety, discrimination, harassment and bullying – making and retaining records of employees having received a copy of, or access to, the company’s COR policies and procedures and attended relevant training is essential so you can later demonstrate you have taken these steps – including if you are considering disciplinary action against an employee for failure to comply with your COR policies,” they say.
“The same applies for signed copies of employment contracts and copies of company policies and training material (as at the relevant date). ”
For her part, Guerra-Stolfa worries that the lack of a precedent to give transport or other managers a clear idea of what they may face.
“The first person to be penalised under these new provisions is in for a rude shock,” she says.
“Operators may be sleep-walking into some significant penalties if they haven’t done the appropriate risk assessments, and ensured their practices are compliant.
“In a lot of ways, it is the calm before the storm for the industry at the moment, as and when penalties are administered, and cases brought, these enforcement changes are really going to be felt.”
19 November, 2018