Whatever view is taken on the imposition of the Road Transport Directive operators of heavy goods vehicles ignore it at their peril because it will be implemented and failure to comply will carry possible imprisonment of up to two years and unlimited fine. The purpose of this article is awareness of the proposed legisation, the time scale and the penalties for non compliance. We do not deal with interpretation of the proposed regulation. Application to your business requires individually counseling. No two operators will have the same working practises.

What's the timetable?

The proposed regulations are scheduled to come into force in March 2005. The sands of time are ticking away fast. The draft regulations are in print and are likely to be implemented with few changes. The question remains is whether the minister will further restrict the flexibility currently afforded by the draft regulations.

What are the principal effects of these draft regulations?

• The maximum average working week will be limited to 48 hours over the reference period.
• The maximum working week in any one week is 60 hours.
• The maximum daily "night work" is 10 hours
• The reference period which can be varied is fixed period of 17 or 18 weeks starting on the 1st April, 1st September and 1st December but could be a rolling 17 weeks or extended by agreement to 26 weeks.

Which employees do the draft regulations apply to?

The regulations only apply to mobile workers. The term mobile worker is defined under the draft regulations as " Any worker forming part of the travelling staff, including trainees and apprentices, who is in the service of an undertaking which operates transport services for passengers or goods by road for hire or reward or on its own account".

Who do the draft regulations apply to?

The regulations only apply to those mobile workers who during the course of their employment are drivers and travelling staff in vehicles subject to the rules on drivers hours and tachographs contained in the EU directive 3820/85. Those mobile workers covered by the exemptions contained in the directive and UK statutory exemptions are also exempt from these regulation. The regulations do not apply to the self employed drivers as defined in the regulation. The regulations do not apply to occasional drivers provided they drive on fewer than 16 days in the reference period or 11 days if the reference period is less than 26 weeks. If the vehicles and drivers currently are exempt from the EU drivers hours rules and tachographs then these regulations do not apply.

What is working time?

This is not concerned with duty time spreadover or paid time. There is a definition in the draft regulations. There is a need therefore to understand the terminology in order to optimise the duty time to ensure full flexibilty of the employees attendance at work. "Working time is the time from the beginning to the end of work during which the mobile worker is at his workstation at the disposal of his employer and exercising his functions or activities. This includes ; driving, loading and unloading, assisting passengers boarding and disembarking from the vehicle,cleaning and technical maintenance and all other work intended to ensure the safety of the vehicle,its cargo and passengers or to fulfil the legal or regulatory obligations directly linked to the specific transport operations under way, including monitoring loading and unloading and dealing with administrative formalities with police,customs and immigration officers ; or time during which the mobile worker cannot freely dispose of his time and is required to be at his workstation, ready to take up normal work, with certain tasks associated with being on duty, in particular during periods awaiting loading or unloading where their foreseeable duration is not known in advance that is to say either before departure or just before the actual start of the period in question or under collective agreements or workforce agreements". It is interpretation of this definition which is the subject of concern.What then is not included? It does not include, according to draft guidance such activities as: Travel to and from the operating centre in order to commence work Rest breaks when no work is done. Periods of availability.

What is a period of availability?

It is defined under the draft regulations as "a period during which the mobile worker is not required to remain at his workstation, but is required to be available to answer any calls to start or resume driving or to carry out other work, including periods during which the mobile worker is accompanying a vehicle being transported by a ferry or by a train as well as periods of waiting at frontiers and those due to traffic prohibitions". These periods of availability must be of foreseeable duration and known in advance by the employee. These periods include time spent not driving but travelling in a vehicle providing the employee is not working in some other way. Periods of availability are not breaks or periods of rest.Periods of availabilty include breaks taken during waiting time or time not driving and spent in a moving vehicle ferry or train. The employer needs to grasp and understand this important concept if the advantage afforded by the regulations can be fully utilsed to his and his employee's benefit.

What to do when delivering to RDC or customers premises. What notice is required? Seek advice now!

What about night work?

The limitation on night work is 10hours in any 24 hours and relates to any work falling within the period between midnight and 4 am even for one minute. This limitation on work time can be extended by collective agreement or workforce agreement.

What information should be given and what records should be kept?

There is an obligation without exception to notify each mobile worker of the regulations and the provisions of any workers or collective agreements. Done that? There is an obilgation without exception to:

• request information about anytime spent working for another employer
• include such time in the working time calculations
• keep records sufficient to comply with the regulatory requirements
• retain those records for two years
• provide the employee with a copy on request
• provide the enforcement officer on request with copies

What about the agency driver?

It is necessary to establish whose employee he is. Is there a contract with the agency and the driver or a contract between the agency and the operator. Who pays the drivers wages? If the operator is the employer under the regulations then there are obligations imposed upon him too.

• keep the tachographs
• comply with the 60 hour limit
• give detail of all other work
• get details from the agency of those other periods of work
• ensure complience with the 48 hour average after 17 weeks

What if the agency is deemed the employer?

The operator's obligations are still to comply wth the EU driver's hours rules and regulations.

• comply with operator licencing obligations
• keep the original disks
• let the agency have copies

Enforcement and offences

This is likely to be by VOSA (formerly the vehicle inspectorate). It will be an offence to:

• fail to comply with the request made byVOSA to give information relevant to any examination or investigation or answer questions or refuse to sign a declaration of truth of those answers
• produce any records kept for the purpose of the regulations and any other documents necessary to verify the records kept in accordance with these regulations
• prevent or attempt to prevent other person communicating with VOSA
• contravene any requirement in an improvement or prohibition notice
• intentionally obstruct VOSA
• make a false statement purporting to show complience with the requirement to provide information

What are the penalties?

In the magistrates court the maximum penalty is currently £5000 for certain breaches except for offences relating to contravention of the improvement or prohibition notice when the magistrates can impose a prison sentence of up to 3 months. If the matter is refered to the Crown Court then the maximum penalty is UNLIMITED FINE AND 2 YEARS IMPRISONMENT

Who can be prosecuted?

Anyone whose act or default resulted in the commission of the offence by another. With companies the director, manager, secretary or other similar officer if the offence was committed with that persons consent or connivance or neglect then both the company and that person can be prosecuted along with the company.

What else can happen on conviction?

The court can order that within time limits subject to variation set by the court the steps to be taken to put right the breaches. Failure to comply with the order means that further prosecution is possible if the breaches continue beyond the period or periods set by the court.

What should the operator do?

The operator should not ignore the regulations. They will be imposed. They will be enforced. The operator should get a good practical understanding of what's required. Do his homework? There needs to be an appraisal of current working activities and customer practices and procedures. Set up systems for compliance. Carry out periodic checks to make sure the systems work. Every operators working practices are different. An understanding of the regulations and how they apply and more importantly how they can be used to ensure the profitability of the business and maintain driver wage levels without compromising Health and Safety is paramount. The sands of time are running out.

REMEMBER THE WHITE RABBIT IN ALICE IN WONDERLAND : DON'T YOU BE LATE!

If you need advice then consider attendance at one of our workshops.Contact us via email : gary.hodgson@forwarn.com Gary Hodgson Partner, Ford & Warren, Leeds.