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Fewer hours more drivers.., who pays?
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CM'S news team has been reading the
consultation document on working time...
After months of delays and disagreement the Department for Transport has finally published its consultation document on new working time proposals for the road transport sector.
The document, which the industry has until 23 January 2004 to respond to, gives the impression that the government has taken a liberal approach to the proposed legislation.
But nothing is yet set in stone. Instead it allows anyone who has an interest in these proposals to respond to them and have their say on whether certain derogations should be included. These include how average working time is calculated and if night workers should work longer than 10 hours. The government is also asking for views on its proposal that "nighttime" is defined as a four-hour period between midnight and 4am; and whether the Vehicle & Operator Services Agency (VOSA) should enforce this Road Transport Directive (RTD), However, what the document does do is give us an important indication of what the transport industry is heading towards, come March 2005. And on this opinion is divided.
Industry views Bob Armstrong, for the Freight Transport Association, says it is -absolutely imperative" that the extension of the 10-hour night shift and the calculation of weekly working time over a six-month period is translated into UK legislation. "Over 30% of companies will find that beneficial," he claims.
But the Transport and General Workers Union (T&G) disagrees. It says that letting night workers work longer than 10 hours, for example. waters down the whole point of the legislation, "We are not happy at all with the derogations," says T&G national secretary for road transport. Ron Webb. "It's the thin end of the wedge. We will be arguing against those in our full response."
Ruth Pott, head of employment at the Road Haulage Association, complains that it has II taken far too long to produce a "vague and woolly paper". However, she recognises that the ffipside is that it allows flexibility, particularly with regards to the periods of availability which, she says. need to be retained in the final draft.
But she adds that there need to be allowances or contingency plans for the thousands of drivers working during the day who inadvertently find themselves classed as night workers after working past midnight.
Waiting time vs working time
One aspect of the legislation that caused outrage among union officers and drivers alike was the inference by transport minister John Spellar that waiting time would not count as working time.
This was translated by many as meaning drivers would not be paid if, for example, they were forced to hang around outside RDCs or depots waiting for someone to load or unload their trucks.
Close attention to the consultation document reveals that this may not be true.The document states: "It would count as working time if the driver is required to stay at his workstation [ie cabj and if the length of the delay is not known in advance." However, it goes on to say that if a driver is required to stay in the cab for reasons of safety or security then the above need not apply.
Owner-drivers Sell-employed drivers will not come under the scope of the working time legislation until March 2009. according to the proposals. Before then the European Commission will review the impact of the Directive and analyse the consequences of excluding self-employed drivers, in respect of road safety.competition.structure of the profession and its social impact. However, the definition of "self-employed driver" under the RID proposal is extremely narrow: "Anyone whose main occupation is to transport passengers or goods by road for hire or reward... who is not tied to an employer by an employment contract or by any other type of working hierarchical relationship, whose income depends directly on the profits made and who has the freedom to. individually or through a co-operation between self-employed drivers, have commercial relations with several customers."
Night work
The RTD defines "night time " as "the period between midnight and 7am". But the industry has shown a preference for midnight to 4am instead, to prevent early starters being caught. It also states that mobile workers will be subject to a 10-hour time limit in any 24-hour period if they do any night work at all.This time limit for night work is subject to change depending on the industry's views.
Weekly working limits
The document suggests an average 48-hour working week, though this may rise to 53 hours with the inclusion of periods of avail ability in a given week. which is calculated over a four-month period. However it allows for this period to be extended to six months if the industry so decides. The maximum working time that can be performed in a single week is 60 hours, Periods of availability are defined as: time other than breaks or rest periods where the worker is not required to remain at his workstation. but is available to start work or resume driving; where the periods of time are known in advance, either before departure or just before arrival: when accompanying a vehicle being transported by boat or train: or periods waiting at frontiers or delays due to traffic prohibitions.
It gives the example of a regional distribution centre where a driver habitually experiences a delay of an hour — although he doesn't necessarily know of the delay before he sets off on his journey. Once he's been told of this on his arrival at the RDC this could count as a period of availability, even if he has to stay in his cab (see waiting vs working. above).
However if the delay stretches to longer than the predicted hour then time after that should count as working time.
Record keeping
Employers are expected to keep records for two years after the period covered. These records must include working time and time spent working at night.
VOSA
The document suggests that the VOSA should enforce working time legislation, as it already enforces the "horizontal amending directive" on drivers and crew. •