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THE TIMES, THEY ARE A CHANGIN'
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Last week's publication of the draft Road Transport (Working lime) Regulations caused industry bodies to breathe a collective sigh of relief.The Road Haulage and Freight Transport Associations welcomed the government's flexibility on some of the issues that had worried operators, including periods of availability and night working.
Mobile workers (mainly drivers and crew) must comply with these regs as well as the EU drivers' rules. They introduce an average 48hour week, but allow a maximum 60 hours in any single week. Night workers can do 10 hours in any 24-hour period, and this can be extended by agreement.
The industry has just over a month to respond before the new consultation period closes on 12 December. It may be as late as February before the final regulations are published: the law comes into force on 23 March.
Ruth Pott.head of employment at the RHA, says: "The regulations will still require careful management by all users of transport, be they drivers, employers or customers.
"We welcome the flexibility offered by the definition of periods of availability and the opportunity to extend night-working limits and reference periods."
And the FTA says: "The draft documents contain a great deal of flexibility that could help reduce the worst impact of the directive." It is currently analysing the draft regulations before making its response to the Department for Transport.
However, the Transport and General Workers Union says transport workers have been badly let down by the government, and it believes many drivers will be worse off. -Government has missed a golden opportunity to modernise the industry." says Ron Webb, the T&G's national secretary for road transport. "These draft regulations, especially those on flexibility and periods of availability, go to the heart of the Directive and undermine it. Government has injected real confusion."
The union is angry that periods of availability will not be counted as working time and that employers can use holiday leave, above the statutory minimum of four weeks, to calculate the 48-hour week.
It warns that many drivers will still be clocking up working weeks in excess of 65 hours and will continue to campaign for its Drivers' Charter which calls for a 48-hour maximum working week and £25,000 a year.
Despite the unions' best efforts the final regs are not likely to differ greatly from those outlined in the draft. This document is presented in seven hefty sections; we've ploughed through them to bring you this summary of the 10 most important features.
1. Who is affected by the Road Transport (Working Time) Regs?
The regulations affect drivers and other "mobile workers" subject to EU drivers' hours rules, including own-account drivers and agency drivers. In general if you're driving a vehicle that requires a tachograph fitted, that means you.
However, drivers who work no more than 10 days in a reference period of less than 26 weeks, and no more than 15 days in a reference period of more than 26 weeks, are defined as "occasional mobile workers" and will still be subject to the Working Time Reg ulations 1998 rather than the Road Transport (Working Time) Regulations.
This means they can agree with their employers to opt out of the average 48-hour week.The EU hours rules still apply.
Self employed drivers are excluded from the regulations until March 2009. However, the definition of "self-employed" is narrow: for example, it excludes most agency workers. Owner-drivers will have to prove that they are free to organise their own work, that they rely on profits to provide an income,and that they "have commercial relations with several customers".
But some owner-drivers who are classed as self-employed by the inland revenue will still fail to qualify as self-employed under the working time regs.
Agency drivers will have to rely on their agencies to monitor working time records or their hirer if they are on fixed-term contracts. If there is no contract of employment, whoever pays the worker will be regarded as the employer for the purpose of the regulations.
It becomes more complicated if a driver works for several agencies. In this case he or she must inform all employers in writing of hours worked for another employer. But driving agencies are not normally allowed to keep original tachograph charts so they will need to copy the chart before returning to the client, or ask for a copy or a summary of information on the chart.
2. What counts as 'working time'? Working time is defined as the time from beginning of work, during which the worker is at the disposal of the employer and carrying out his activities within the road transport operation.
However, it does not include travelling between home and work, lunch breaks, other breaks, evening classes or day-release courses and 'periods of availability' (PoA).
The regulations define a PoA as waiting time whose duration is generally known about in advance by the worker.
A PoA may be taken at the workstation (ie truck) but that should not be a requirement. The driver must have reasonable freedom to relax but should be able to start work or driving again on request.
Waiting time at a distribution depot will count as a PoA if the driver knows the length of the delay at the start of the period (because someone has told him, or because he has arrived too early or because there is always a delay). But if he typically experiences a onehour delay at a particular site and this is replaced by a two-hour delay, the second hour will count as working time unless he has been notified of the extra delay.
Other examples of PoAs include a relief driver travelling as a passenger; a police delay for a set time of an abnormal load: and specified lorry bans forcing the driver to park and wait outside the city centre.
Working time includes driving, loading and unloading; training that is part of normal 110• work; cleaning and maintenance of the vehicle; and safety checks or activities, including the daily defect report. It also includes waiting periods where the duration is not known in advance either before departure or just before the start of the period.
Working for another employer counts toward the total working hours and employees must tell their employer, in writing, of any time spent working elsewhere. Certain voluntary activities do not count. These include working as a retained fire fighter; special constable or member of the reserve armed forces.
3. Calculating working time limits
Workers may not work for more than 48 hours a week on average or 60 hours in a single week. There is no opt-out • The average weekly working time should be calculated over four months (normally 17 weeks but up to 18 weeks to allow three reference periods in one calendar year).This can be extended by agreement with the workforce up to six months (26 weeks).
• Employers and employees can agree to use either a fixed or a rolling reference period.
• A fixed reference means calculating over a set four-month period and then starting again.
• A rolling reference period means calculating times from one month to the next on a rolling four-month basis, referring back to the past four months at all times.
• Time off sick, holidays, maternity leave and so on may not be used to bring down the average weekly working time. Employers should add a notional 48 hours for each week of annual leave and eight hours for each additional day of leave that is taken, • However, where the annual leave period is greater than the statutory four weeks, additional leave time can be used to reduce the average working week once the four weeks is used up. This proposal has attracted savage criticism from the T&G which it sees as a way of increasing the working week.
4. Working at night
IN Night time, for the purpose of the regs, is between midnight and 4am.
• Night workers should not exceed a daily working time of 10 hours in any 24-hour period. However,this can be exceeded where there is a relevant agreement.
• If a mobile worker does any work during the night-time period he or she becomes subject to the night work limit.
• Breaks and periods of availability are not included in the 10-hour limit.
5. Rest and breaks
• Minimum daily and weekly rest provisions are generally applied to drivers under the EU drivers' hours rules. The new regulations apply additional break requirements and daily/ weekly rest requirements to other mobile workers,trainees and apprentices, • Rest periods under drivers' hours rules take precedence when driving.
Additions to the EU drivers' hours rules are as follows: Drivers must have 11 consecutive hours rest in each 24-hour period with the option of cutting this to nine consecutive hours three times a week. Any reduced rest must be compensated for by the end of the next week. Alternatively, 12 hours' rest may be taken in two or three periods. the last of which must be at least eight consecutive hours. Now, under the working time regulations, the same daily rest requirements are being extended to other travelling staff like crew, trainees and apprentices The EU drivers' hours rules already insist on a break of 45 minutes after 41/2 hours' driving; the new regulations apply the rules to workers who do a mixture of driving and non-driving work. This means "mobile workers" will entitled to breaks when they are not driving. The regs require that workers should not work more than six hours without a break.and if their working hours total between six to nine hours a day, breaks totalling at least 30 minutes should be taken.This rises to 45 minutes if the working day exceeds nine hours.
Breaks may be split into 15-minute periods.
6. Record keeping
• Working time records must be kept for a minimum of two years, • The employer is responsible for keeping working time records, ensuring they are available for inspection and informing employees of their responsibilities.
• Employers must ensure that all workers are informed of the details of any collective or workplace agreements.
• Driver and employment agencies must keep records if the worker is paid by them.
• Mobile workers must inform an employer in writing of work done for another employer.
• Owner-drivers who do not meet the -selfemployed" criteria under these regulations must keep their own records.
• Under the drivers' hours rules. tachograph records need only be kept for a year. However, if they are being used to monitor working time they must be kept for two years.
7. Relevant agreements
The regulations allow flexibility in two key areas which must be covered by a relevant agreement either a collective agreement (negotiated with a trade union) or a workplace agreement, ne gotiated with the employees.
The first area of flexibility is the option to extend the reference period for the average 48hour week up to 26 weeks with either a fixed reference period or a rolling reference period. The second is the flexibility to exceed the 10hour limit for night work.
Workplace agreements can only apply where there is no trade union present. Such an agreement must be made with elected representatives of the workforce, It can apply to the whole workforce or to a group of workers, ie the drivers.The representatives must be elected by secret ballot and any subsequent agreement must be in writing for a fixed period of not more than five years.
All affected workers should receive a copy of the draft agreement with any guidance notes. It should then be signed by all the representatives or, if there are fewer than 20 workers, all the representatives or a majority of the workforce.
8. Enforcement
VOSA will enforce the regulations in Great Britain:in Northern Ireland it's up to the Driver and Vehicle Testing Agency.
These two bodies will normally enforce the regulations in response to any complaints they receive. However, they may also look at working time records following an accident.
Workers asked to break the regulations should first talk to their manager or a trade union representative. Mobile workers knowingly breaking the rules put themselves at risk of prosecution, If the matter is not resolved contact VOSA (08706060 440) or the DVTA (02890 354 117).
9. Penalties
VOSA says where the rules are not being followed it will initially try to educate employers and employees on an informal basis. However, if this doesn't work it will issue an improvement notice, detailing the regulation breach and the timescale that is being allowed to put it right. Alternatively, it could issue an enforcement notice, requiring the end of a dangerous activity and an order of compliance.
Persistent offenders will face the courts which have a range of penalties including fines and even prison sentences to enforce compliance,
10. Driving abroad
The DIT warns that other countries might try to enforce the working time limits by roadside tachograph checks, although this could only apply to the 10-hour and 60-hour limits.
Some countries, it adds, might not recognise UK derogations, such as exceeding the 10hour nightwork period or the 17-week reference period. However, it believes that in practice only the longer nightvvork period might prove a problem.