ManagingRISK in TRANSPORT Operations - Dolus Eventualis .or NOT Presenter: Dave Marais - ecmba
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Section 49 / Consigner & Consignee / TSMS
vs
Operator and Manager Liabilities
Managing RISK in TRANSPORT Operations
Dolus Eventualis….or NOT
Presenter:
Dave Marais
INVESTIGATION
D V S O
R E C P
I H E E
V I N R
E C E A
R L T
E O
R
PROFILING
“Assets Risk Assessment”
What do you regard as your most IMPORTANT ASSETS in your Transport
Operations?________________________________________________
On a Scale of 1 – 10 please indicate how important your Drivers are to you
in your Operation (1 = Low & 10 = High) __________________________
On a Scale of 1 – 10 please indicate how important your Vehicles are to
you in your Operation (1 = Low & 10 = High) _______________________
Do you think your drivers are the main contributors to? YES NO
Accidents and the costs involved:
Fuel Consumption - Good or Bad:
Maintenance costs:
Overloading fines:
You facing Prosecution:
Did you know the Human factor is responsible for more than
90% of Accidents?
Where Are your biggest RISKS?!
Managing Risk…
OHS Act 8, 9, 13 & 37
Consignor/Consignee 74A, 74B, 300
NRTA Regulations 234 - 246
Construction Regulations 23(1)(d) & (2)(j)
Criminal Procedure Act Section 332
AARTO?? Compliance AND Control
You decide the tightness of the Noose!!!“I DID NOT KNOW” is not an
excuse!
The Law states that if you enter a certain field of work the
responsibility is on you to familiarize yourself with all the
expectations of the job …Not CORE…But INTEGRAL!
If you KNEW or if you DID “FORESEE the POSSIBILITY” that your
actions could lead to the death of someone - you HAD
INTENTION to carry on
If you had INTENTION (Dolus Eventualis) and you are involved
(Operator, Agent, Manager) when someone dies you will be
charged with MURDER and not manslaughter / culpable
homicide
= SNIPER = MENTAL NOTE = CHECKLIST
= QUESTIONSSection 49 / 50 / 51
IF YOU “ALLOW” OVERLOADING……. R Chapter VI Part IV
Gross Weight & Axels Consignor / Consignee
Exceeding Manufacturer Safety Specs! OHS Act
AARTO
IF YOU “ALLOW” DEFECTS on vehicles……. Section 49 / 50 / 51
No or Inappropriate Checklist! Chapter V / SANS 10047
Not controlled! R Chapter VI
OHS Act
AARTO
IF YOU “ALLOW” UNFIT DRIVERS…….
Uncontrolled PrDP Medicals Section 49 / 50 / 51
Driver medical conditions S Chapter IV R V
OHS Act
Incompetent Drivers – Training / Fatigue AARTO
Accident / Infringement Records
YOU ARE LOOKING AT DOLUS EVENTUALIS WHEN INVOLVED IN AN ACCIDENT!!!!Definitions
OPERATOR (NRTA 93/1996)
The person responsible for the use of a motor vehicle of any class
Section 45 REGISTRATION OF OPERATOR
The owner of a motor vehicle of a prescribed class is the operator thereof
OWNER (NRTA 93/1996)
The person who has the right to the use and enjoyment of a vehicle
CHIEF EXECUTIVE OFFICER (OHS Act)
The person who is responsible for the overall management and control of the
business.
BackNRTA - Section 49
PROFILING THE (Duties of)
Operator!!! Annexure A
(P21)
1) The Operator of a motor vehicle shall:
c) Exercise proper control over the driver of such motor vehicle to ensure the
compliance by such driver with all the relevant provisions of this Act, in
particular the provisions regarding-
(i) the requirements in respect of the PrDP referred to in section 32;
(ii) the loading of such vehicle as prescribed by or under this Act;
d) ensure that such motor vehicle complies with the fitness requirements
contemplated in Chapter V; & SANS 10047 (Reg 216)
e) conduct his or her operations with due care to the safety of the public; (OHS 9)
f) ensure that all requirements for the conveyance of dangerous goods or
substances are complied with
g) take all reasonable measures to ensure that such motor vehicle is operated on a
public road in compliance with the provisions for the loading and
transportation of goods as prescribed by or under this ActNRTA Section 50 & 82
SECTION 82 INSPECTIONS FOR ENSURING THAT PROVISIONS OF ACT ARE
GIVEN EFFECT TO
1) The Minister may authorise any person to carry out any inspection to
ensure that the provisions of this Act are being complied with.
2) No person shall be obstructed
SECTION 50 POWER OF CHIEF EXECUTIVE OFFICER IN RESPECT OF MOTOR
VEHICLES, DRIVERS AND ACTIVITIES OF OPERATORS
The Chief Executive Officer concerned may
at any time require that an inquiry be instituted into the operational
activities of an operator by a person appointed by him
Regulation 330B(2 & 3 Weighing docs)Section 51 Act or Omission of Manager,
Agent or Employee of an Operator
1) Whenever any manager, agent or employee of an operator commits or omits
an act which would have constituted an offence in terms of this Act if the
operator had committed or omitted such act, that operator shall, in the
absence of evidence – Page 6
Allow
a) that he or she did not connive at or permit such act or omission;
b) that he or she took all reasonable measures to prevent an act or
omission of the nature concerned; and Section 49 / OHS Sec 8(2)(d)
c) that an act or omission of the nature of the act or omission charged Page 15
did not fall within the scope of the authority of or the course of the
employment as such manager, agent or employee, be deemed himself
or herself to have committed or omitted that act and be liable to be
convicted and sentenced in respect thereof.
2) Whenever any manager, agent or employee of an operator commits or
omits any act, which would have constituted an offence in terms of
this Act if such operator had committed or omitted it, such manager,
agent or employee shall be liable to be convicted and sentenced in
respect thereof as if he or she were such operator.
ImplicationsSection 332 CPA
Corporate Bodies & Members
Section 37(1) OHS
Employers & Subs
Section 74 Cons
LoadsTSMS – Transport Safety
Management System
(SANS 39001 )
ACCIDENT INVESTIGATION: PROFILING THE
OPERATOR (COMPANY / CORPORATE BODY / OWNER)
(Section 49(c - g))
P7
Annexure B
• Policies
• Procedures
• InstructionsPROFILING THE Driver:
(Section 49(c)(i) & (e))
RISK FACTORS CAUSES EXPOSURE
• Unskilled / Untrained
• Inexperience • National Road Traffic Act
• Incompetent • OHS Act
• Negligent / Intent • Criminal Procedure Act
• Low Concentration • Procedures / Policies /
• Poor decision making Instructions
• Unfit - Medical condition • Rules & Regulations
HUMAN • Low Morale / Loyalty • Consignee / Consignor
EMPLOYEES • Insufficient staff Legislation
(90% Incidents) • Working hours • AARTO demerit points /
• Work pressure / license cancellation
Manipulation • Civil law
• Corrupt/Criminal activity
Remedy:
Policies / Procedures /
InstructionsDriver / Mandatary (Hire Drivers)
• Responsibilities – JD – KPA’s
(All Acts & Company Policies / Procedures / Instructions)
• Driver Training (Program)
- Psychological Factors: Fatigue / Physique
- Pre-trip vehicle checks and history
- Perception / Reaction/ Lag Times vs Velocity / Stopping
Distances / Forces Page 10
- Handle Emergency Situations
Annexure CPROFILING THE Vehicle:
(Section 49(d))
CHAPTER V - SANS 10047
Regulation 216 - Motor vehicles operated on public road to comply with
compulsory vehicle specifications
1. A motor car, minibus, bus or goods vehicle operated on a public road,
shall comply with the relevant requirements as specified in the
Standards Act (Act No. 29 of 1993) and listed in Annex A to code of
practice SANS 10047: "The testing of motor vehicles for
roadworthiness".
2. No person shall operate a motor vehicle unless all the equipment in
terms of subregulation (1), is fitted to such vehicle and in good
working order
Page 11Loads on Vehicles –
(Section 49(c)(ii) & (g))
Vehicle
• Regulation 236 - Permissible Max Vehicle Mass Assessment
• Regulation 237 - Permissible Max Comb mass to determine
Payloads and
CONSIGNOR / CONSIGNEE LEGISLATION Permissible
Mass loadsPresumptions Section 70 Where in any prosecution for an alleged contravention of any provision of this Act, evidence to prove such contravention is tendered of any mass as ascertained by means of a mass-measuring bridge or other mass- measuring instrument, such mass shall be deemed to be correct in the absence of evidence to the contrary CONSIGNOR / CONSIGNEE LEGISLATION
Load Safety Manner in which goods to be carried No person shall operate on a public road a motor vehicle carrying any goods • coming into contact with the road • obscuring the driver’s view • not safely contained or securely fastened • not properly protected from being dislodged/spilled from vehicle • container secured by four “twist locks” or two twist locks” empty • persons on the back of a vehicle: sides of 450mm sit and 900mm stand No person shall be conveyed in the goods compartment together with any tools or goods unless separated by a partition
Consignor / Consignee
Legislation
22ND REGULATION AMENDMENT
Published on 31 October 2014 Implementation date 31 January 2015
DEFINITIONS:
“consignee” who actually receives more than 500 000 kilograms in a month of goods
after they are transported by road;
“consignor” who engages an operator of a vehicle, either directly or indirectly or
through an agent or other intermediary, to transport the goods by road or has
possession of, or control over, the goods immediately before the goods are transported
by road or loads a vehicle with the goods, for transport by road more than 500 000
kilograms of goods in a monthRegulation 330A
Offering and acceptance of goods on overloaded vehicle prohibited
1. A consignor or consignee shall not offer or accept goods if the vehicle is
transported is not loaded in terms Regulations 236 & 237
Regulations 234 – 241
2. A consignor shall require from the operator a written submission as to the
payload of such vehicle and the distribution of such load on a vehicle 330C
“GD”
3. A consignor shall take such steps as are necessary to ensure that the vehicle is
loaded as contemplated in subregulation (1) and (2). OPERATOR TO SUPPLY
“VEHICLE LOADING PROFILE” P 13
Annexure D
4. A consignor or consignee shall not conclude a contract with the operator to
transport goods on a vehicle, if the vehicle is overloadedRegulation 330C
Goods declaration to be carried on a motor vehicle
A person operating on a public road a motor vehicle
which carries goods shall be in possession of a
declaration containing the information as per
Annexure
Annexure E
(P26)OHS Act - Section 9
General duties of employers and self-employed persons to
persons other than their employees
Every employer shall conduct his undertaking in such a
way as to ensure, as far as is reasonably practicable, that
persons other than those in his employment who may be
directly affected by his activities are not thereby exposed
to hazards to their health or safety.
Section 49 (e) NRTAOHS Act Section 37: Acts Or Omissions By
Employees Or Mandataries
1. Whenever an employee does or omits to do any act which it would be an offence in
terms of this Act for the employer of such employee or a user to do or omit to do, then,
unless it is proved that-
a) in doing or omitting to do that act the employee was acting without the connivance
or permission of the employer or any such user;
b) it was not under any condition or in any circumstance within the scope of the
authority of the employee to do or omit to do an act, whether lawful or unlawful, of
the character of the act or omission charged; and
c) all reasonable steps were taken by the employer or any such user to prevent any
act or omission of the kind in question, the employer or any such user himself shall
be presumed to have done or omitted to do that act, and shall be liable to be
convicted and sentenced in respect hereof;
IMPORTANT
And the fact that he issued instructions forbidding any act or omission of the kind in
question shall not, in itself, be accepted as sufficient proof that he took all reasonable
steps to prevent the act or omission.
(Risk Factor Exposure: Lack Knowledge, Misinterpretation, Lack thoroughness, Not
understanding implications)Section 37(2) Mandatary Definitions Employer (OHS Act Section 1) Any person who employs or provides work for any person and remunerates that person or expressly or tacitly undertakes to remunerate him Mandatary (OHS Act Section 1) Includes an agent, a contractor or a subcontractor for work, but without derogating from his status in his own right as an employer or a user Page 17 Section 37(2) the provisions of sub-section (1) shall mutatis mutandis apply in the case of a mandatary of any employer or user, except if the parties have agreed in writing to the arrangements and procedures between them to ensure compliance by the mandatary with the provisions of this act.
Section 37(2) Mandataries Construction Regulations: Contractor (Definition) Means an Employer (Section 1 OHS Act) who performs construction work and includes Principal Contractors Construction vehicle A vehicle used to transport persons or material or persons and material on and off the construction site Health and Safety Plan Means a site, activity or project specific documented plan in accordance with the client's health and safety specification Health and Safety Specification Means a site, activity or project specific document prepared by the CLIENT pertaining to all health and safety requirements related to construction work
Construction Regulation 23
A contractor must ensure that ALL CONSTRUCTION
VEHICLES OR MOBILE PLANT TRAVELING, WORKING OR
OPERATING ON PUBLIC ROADS
(1)(d)(i) Are operated by a person who –
has received APPROPRIATE TRAINING and is certified
competent
(2)(j) comply with the requirements of THE NATIONAL ROAD
TRAFFIC ACT, 1996
VERY IMPORTANT:
NRTA SECTION 49 NRTA = HEALTH AND SAFETY PLANManaging the AARTO Risk • Cape Town - The controversial AARTO Bill moves a step closer to implementation in South Africa. • "Your licence will also be cancelled if suspended three times." • When will AARTO officially be implemented? • Should Parliament be satisfied with the proposed amendments, the Bill will then be handed over to The National Council of Provinces (NCOP). If the council gives it the greenlight, AARTO could be implemented as soon as the end of the 2017/2018 financial year. Published 5 September 2017
Managing the AARTO Risk • What is AARTO! (2056 NRTA Transgressions) • Section 49 Implication! • Appoint Person to manage AARTO • Procedure to manage Infringement notice, Courtesy letter, Enforcement orders and Warrants • Revise Driver contracts, JD’s, KPA’s, AARTO 27 • Revise Disciplinary Codes and Sanctions • Control over Driver, Vehicle & Pool points
Operational Risk Management
MANAGING RISK RESPONSIBLE PARTY IMPLEMENTATION
Correct Appointments and
OPERATOR / OWNER Appointment Procedures
Skills Matrix / Training Records
• IMPROVE CONTROL MEMBER / AGENT /
Safe Work Practices: Policies /
MEASURES MANAGER / EMPLOYEE
Procedures - TSMS
Operational Records (Inspections /
Log sheets / Documents)
Relevant Outcomes Based Training
OPERATOR / OWNER / Improve Knowledge of Management
• BECOME A LESS and Employees
MEMBER / AGENT /
RISKY BUSINESS Improve Experience of Management
MANAGER / EMPLOYEE
and Employees
Medicals
• BECOME A RISK OPERATOR / OWNER /
STABLE
ORGANIZATION MEMBER / AGENT /
Apply control
• REDUCE OPERATING MANAGER / EMPLOYEE
LOSSES
measuresACTION PLAN:
Section 49 and other Liabilities /
Consignor & Consignee Legislation / AARTO
Vehicle capacity assessments and Profiling: Reg 236 - 237 (Reg
330C) AND TRAINING
Immediate compliance with Consignor / Consignee Act (Sec 74 & Reg
330)
Comprehensive Vehicle Inspection training (Management and Drivers)
– revise vehicle checklist i.t.o. Chapter V NRTA and SANS 10047
Vehicle Fitness
Risk Assessment Driver Training
Driver contracts: Detailed Job Descriptions with KPA’s addressing all of
the above!! (AARTO sanctions)
Section 49 workshops with Management and Section 51 Appointments
Transport Disciplinary Code with relevant Sanctions
Policies / Procedures / Instructions regulating Safety Practices w.r.t.
Operations / Management / Training Page 20
Manage Mandataries / Subs for compliance with the aboveYou can also read
