31 August 2017

In a recent New South Wales Local Court decision, a multi-national waste and recycling company was ordered to pay $732,206 in fines and $250,000 in legal costs for a series of overloading offences. The case highlights the potential legal risks faced by consignors under the chain of responsibility regime.

Remondis Australia Pty Ltd pleaded guilty to 12 contraventions of the now repealed NSW Road Transport (Vehicle and Driver Management) Act 2005 and to 38 contraventions of section 594 of the Heavy Vehicle National Law. Remondis was the consignor of loads of mulch and the charges concerned overloading offences that occurred between September 2013 and October 2014.

What happened?

Remondis entered into a contract with Lake Macquarie Council in relation to the processing, composting and removal of ‘green bin’ household waste at Awaba Waste Management Facility on the NSW central coast. Remondis then processed the green waste material and contracted to have the mulch removed off site.

Between September 2013 and October 2014, Remondis was the consignor and loader of loads of mulch transported by Jet Group Australia. Each load of mulch was transported on a heavy combination vehicle, consisting of a prime mover and a walking trailer. Remondis’ machinery was used to load each load, which was then taken from the Awaba facility to Jet’s premises, a distance of 3.8 kilometres. The applicable mass limit for the vehicles used for transportation was 42.5 tonnes.

The 50 offences before the Court included 22 ‘severe’ breaches and related to loads that were between 3 and 16 tonnes overweight. The majority of the offences concerned vehicles that were at least 10 tonnes overweight.

Remondis’ compliance system

The nearest weighbridge was remote from the Remondis site supervisor and was operated by the Council. Remondis took no steps to ascertain the mass of the loads consigned to Jet, but simply relied upon Jet to ‘ensure that the loads were within lawful limits’. Remondis paid invoices rendered by Jet without any regard to the tonnage specified, which clearly showed the relevant vehicles were overloaded. While Remondis’ internal driver and operator manual described the chain of responsibility legislation and the parties covered by the legislation, it did not make reference to the applicable mass requirements or overloading.

In response to being investigated and charged with the offences, Remondis took a number of steps to improve its compliance system. Those steps included:

  • implementing a loading protocol, so that applicable mass limits are identified and could be verified at the point of loading;
  • installing load cells at the loader bucket to ensure that the legal load limits are not exceeded;
  • implementing communication protocols between Remondis and the weighbridge or driver of the heavy vehicle so as to ensure that no truck would be allowed to exit the site overweight; and
  • providing supervision to ensure compliance or corrective action in the event of non-compliance.

The penalty

Remondis pleaded guilty to the contraventions. The total aggregate penalties available (for all offences in combination) exceeded $2.1 million. The court ordered that Remondis pay $137,000 in respect of the offences under the NSW Act and $595,000 in respect of the offences under the HVNL, together with the prosecutor’s legal costs of $250,000.

The Court considered the following factors:

  • While Remondis may have been aware of its obligations, that awareness was never properly translated into practice.
  • Remondis as consignor was obligated to ensure that overloading did not occur and could not ‘turn a blind eye’ to whether the vehicles transporting the mulch were over loaded or not.
  • Remondis had control over the mulch before it was it loaded (by its machinery) and transported by road. It was therefore critical that Remondis had an active system in place to manage the risk and to minimise the chances of road transport law being breached.
  • The fact that the weighbridge was remote from their site supervisor meant that Remondis should have addressed this and had immediate, real time access to the data.
  • Any submission that Remondis ‘mistakenly relied’ on others to ensure loads were within lawful limits fell flat when viewed through the prism of the chain of responsibility legislation and the substantial role that Remondis played within the chain.

In determining the penalty, the Court took into account the fact that Remondis had pleaded guilty, expressed remorse and put in place ‘active and preventative measures to ensure no such breaches occur again’. In addition, Remondis had no prior convictions.

Lessons to be learned

The case demonstrates that parties in the chain cannot simply assume that other parties will fulfil their chain of responsibility obligations. In particular, businesses that make use of heavy vehicles to send or receive goods cannot ‘turn a blind eye’ and leave it to operators to comply with their chain of responsibility obligations; instead, those businesses must implement their own measures to ensure compliance.

The case also highlights that it is not enough for a party to be aware of their obligations if that awareness is not properly translated into practice. Documented policies and procedures, with all the best intentions, mean nothing unless personnel are trained and instructed in those policies and procedures, and measures are in place to monitor compliance with them.

These lessons will become even more important from mid-2018 when the chain of responsibility reforms come into effect. Under the reforms, it will no longer be necessary for an on-road offence to be committed before a party in the chain is liable. Instead, a party may be prosecuted because it does not have in place practices and procedures that ensure the safety of transport activities directly or indirectly related to its operations.

Cooper Grace Ward is hosting a masterclass for directors, executives and managers on the new chain of responsibility regime in Brisbane on 26 October 2017. Details of that course are available here.

 

This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.