NHVR-Enforceable undertakings and examples

In the event of an alleged contravention of the HVNL, the NHVR as an alternative to prosecution, may accept an enforceable undertaking (EU) given by the person who is alleged to have committed the contravention.

Factors considered

On receipt of an EU proposal submitted by a person who is alleged to have committed a contravention, the NHVR will give serious consideration to the factors set out in the Policy – Enforceable Undertakings and Guideline – Proposing an Enforceable Undertaking. These include:

  • Promoting a strong safety outcome – Any system, procedural and/or policy change(s) and/or training offered to staff and other stakeholders. Where changes or training are proposed, it must be related to the relevant regulatory guidance (the Master Code, Load Restraint Guide, Australia Standards etc). Any training provider must be accredited and approved by the NHVR.
  • Broad transport community benefit – The extent that any proposed activities will carry benefits beyond improvement to internal safety systems, procedures and/or policies. EU proposals may contain activities that carry benefit to the broader transport community (beyond compliance with legal obligations), such as
    • durable benefits like training and tools, and development of manuals and/or guides
    • resulting publications and intellectual property to be captured by Creative Commons copyright licenses to ensure benefits can be shared with the broader transport community
    • social media safety campaigns comprising an expression of regret and culpability for the offending conduct
    • financial donations to relevant not-for-profit organisations to enhance relevant research and/or training in the area.
  • Rectifications made – Any rectifications made to systems, procedures and/or policy to minimise future public risk, made as a result of the identified contraventions.
  • Specificity and measurability of activities – It is essential the activities proposed in any EU have a sufficient degree of specificity and measurability to ensure accountability and transparency. Reporting to the NHVR on the completion and success of proposed activities, and regular reporting on the progress of proposed activities must be a component of any undertaking.
  • Value of the Undertaking – the extent to which the total value of the proposed activities exceeds the reasonable expectations of court outcomes.

This is not an exhaustive list, but a guide to the types of factors considered.

Types of outcomes

Accepted EUs have included commitments to the following types of outcomes:

OUTCOME OUTPUT
All employees and management to undertake transport safety and CoR online awareness course. A copy of Certificates of Completion will be submitted to the NHVR as evidence within x period.
The company to undertake a CoR audit to identify opportunities for improvement and best practice methods in relation to compliance with HVNL and CoR. A copy of the audit report will be submitted to the NHVR as evidence within x period.
The driver to obtain and implement an NHVR approved EWD to assist their compliance with fatigue management obligations. A copy of completed work diary records will be submitted to the NHVR as evidence by the x of each month on an x basis to be reviewed for compliance.
All employees and management to undertake Load Restraint Training to ensure loads are restrained in accordance with the Load Restraint Guide. A copy of Certificates of Completion will be submitted to the NHVR as evidence within x period.
The company will review its procedures and develop a written policy and procedure manual for employees regarding CoR requirements and the loading of heavy vehicles. The company will direct employees to read and comply with the policy and procedure manual, with documented and implemented consequences for non-compliance. A copy of the policy and procedure manual and the directive to staff will be submitted to the NHVR as evidence within x period.

New South Wales – Matthew Arthur Harrison t/a All Town Skips Pty Ltd

Date accepted

18 September 2023

On 18 October 2022, HARRISON, being an individual, drove a heavy vehicle which exceeded the maximum allowable mass limits on axle groups 2 and 3, constituting a severe and substantial breach.

Summary of undertaking

  • Initiative 1 – Completion of Fatigue, Mass Management and Weight Verification training
  • Initiative 2 – Monthly toolbox meetings to all employees and subcontractors of All Town Skips Pty Ltd
  • Initiative 3 – Vehicle modifications
  • Initiative 4 – Donation to Road trauma Support

The initiatives will be completed within 12 months of acceptance of the EU, with a total estimated cost of $13,500.

New South Wales – CSG Resource Supplies Pty Ltd

Date accepted

15 May 2023

It is alleged that on 22 July 2022, CSG Resource Supplies Pty Ltd permitted another to drive a heavy vehicle. The maximum allowable mass on the second axle group of the heavy vehicle combination was 9 tonnes. The vehicle’s mass on the second axle group was weighed at 11.46 tonnes. Taking into account the applicable mass adjustment, the vehicle’s alleged mass on the second axle group was 11.06 tonnes, an excess mass of 2.06 tonnes, or a 122.8% overload. This resulted in a severe mass breach.

Summary of undertaking

  • Initiative 1 – Load Restraint Training and Testing – the estimated cost of the initiative is $16,000.00;
  • Initiative 2 – Update of Compliance Resources: Safe Work Method Statement (SWMS), Risk Assessment Policy and Driver Handbook – the estimated cost of the initiative is $10,000.00; and
  • Initiative 3 – Organising a Toolbox Talk/Seminar Emphasising on the Heavy Vehicle Dimension Requirements – the estimated cost of the initiative is $8,0000.00.

The initiatives will be completed within 24 months of acceptance of the EU, with a total estimated cost of $34,000.

New South Wales – Anthony KUSCHERT

Date accepted

30 March 2023

Date completed

24 August 2023

Alleged breach

On 11 January 2023, Anthony KUSCHERT drove a heavy vehicle loaded with hay bales which did not comply with the dimension requirements.

The vehicle’s constructed width was 2.49m with a maximum permitted load of 150mm past the outer extremity of the heavy vehicle on either side, being a total width of 2.64m. The vehicle’s width was measured at 2.84m. The vehicle’s alleged width was 200mm in excess of the permissible width.

The contravention of the vehicle’s permitted width resulted in a severe risk breach.

Summary of undertaking

  • Initiative 1 – KUSCHERT will complete a Chain of Responsibility course;
  • Initiative 2 – KUSCHERT will complete a Training & Loading Restraint course; and
  • Initiative 3 – KUSCHERT will make a donation to Road Trauma Support NSW.

The initiatives will be completed within 6 months of acceptance of the EU, with a total estimated cost of $1,000.

South Australia – Michel SAADA

Date accepted

15 March 2023

Date completed

19 March 2024

On 22 April 2022, SAADA, being an individual, made a false or misleading entry in his Work Diary – namely that he was resting at Kilburn, South Australia, from 12:45pm. The entry was false or misleading as his vehicle was sighted by Safe-T-Cameras at Willaston, South Australia, at 1:26pm and at Globe Derby, South Australia, at 1:50pm during the resting period recorded. This is contrary to section 325(1) of the Heavy Vehicle National Law (HVNL).

Summary of undertaking

  • Initiative 1 – Completion of a Fatigue for Schedulers course.
  • Initiative 2 – Distribution of informative material to motorists via a local newspaper, which is to be approved by the NHVR prior to publication.
  • Initiative 3 – Donation to Road Trauma Support Team.
  • Initiative 4 – Registering and Implementing an Electronic Work Diary (EWD) for a period of 12 months. If, after 12 months, SAADA intends to go back to a paper based National Work Diary (NWD) he is to advise the NHVR.

The initiatives will be completed within 12 months of acceptance of the EU, with a total estimated cost of $1,425.