Operator Licensing:
Tachographs and Driver’s Hours, Financial Standing, Operating
Centres, Transport Managers and Driver Conduct Hearings
Jared Dunbar BSc, MA, LLB
Associate, Dyne Solicitors Limited
1
My background
•
Associate at Dyne Solicitors Limited, specialising in Road Transport Law.
•
Previously worked in the automotive industry throughout the UK and Europe.
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Co-ordinator of a national trade association, the BSA.
•
Written legal content for UK Haulier website and quoted in Commercial Motor
magazine.
•
Discussed implementation of forthcoming European legislation with
Department for Transport.
2
Transport Law – A complex area?
• Senior Traffic Commissioner’s Statutory Guidance
– Totals over 300 pages
• Wilkinson’s Road Traffic Offences
– Approximately 4000 pages long
• VOSA’s enforcement sanctions policy
– Over 300 pages long
– Over 600 different offences
3
Sanctions for Transport Problems
• You risk being:
– Prosecuted - fined, disqualified, imprisoned
– Called to a Public Inquiry where you risk
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Losing your Operator’s Licence
Having you licence suspended
Having your licence curtailed
4
VOSA – The statistics
Event
Figure or %
Number of HGVs inspected for
mechanical issues in 2012-13
144,472
(total specified vehicles (2012)=
342,473)
Proportion with prohibitions
39%
Proportion of MOT fails on HGVs
22%
Number of goods vehicles inspected for
driver’s hours 2012-13
89,561
Proportion with driver’s hours
prohibitions
19%
VOSA maintenance visits
2,656
5
VOSA
Criminal Prosecutions – The statistics
Event
Number
Total Fixed Penalty Notices issued
(2012-13)
17,080
Total Prosecutions
6,209
Drivers’ hours prosecutions
2,509
Tachograph/records prosecutions
2,486
Overloading
247
6
Public Inquiries – The statistics
Event
Figure or % in 2011-12 (2010-11)
Number of Public Inquiries called
for non-compliance for Goods Vehicle
Operators
943 (1113)
Licence Revocations
34% (33%)
Licence Suspensions
10% (7%)
Licence Curtailment or conditions
imposed
22% (23%)
7
(1) Driver’s Hours and Tachographs
8
Drivers’ Hours Legislation
• EU rules
– apply to drivers of most large goods vehicles (over 3.5T).
• GB rules
– Apply to drivers exempt from EU rules
• Working time
– Apply to all drivers in addition to EU and GB Rule
9
Exempted Vehicles
• Total exemption from all rules given to drivers of vehicles used by
– Armed Forces
– Police
– Fire Brigade
10
EU Rules
• Exemptions include
– Refuse collection
– Radio and TV broadcasting
– Gas, electricity and water services
11
Basic Rules - Driving
• Daily driving
– shall not exceed 9 hours
– Can be extended to 10 hours on two occasions a week
• Weekly driving
– Must not exceed 56 hours in a week
• Fortnightly driving
– Must not exceed 90 hours in any two consecutive weeks
12
Basic Rules - Rest
• Breaks
– After 4 ½ hours, a 45 min break must be taken
– (can be taken as 15 mins and then 30 mins, but not other way round)
• Daily Rest
– 11 hours in 24 hour period
– May be reduced to 9 hours but no more than 3 times between two weekly rests
– Split daily rest: First must be at least 3 hours and the second at least 9 hours
• Weekly rest
– After six 24 hour periods, a regular weekly rest of 45 hours
– Or, reduced weekly rest of 24 hours (must be compensated by equivalent rest taken
before end of 3rd week)
13
EU Rules - Emergencies
• Drivers may disregard EU hours rules in order to
– Reach a suitable stopping place
– Ensure safety of persons, vehicle or load
• Must record on their tachograph why the breach occurred
14
EU Rules – Trains and Ferries
•
•
•
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Daily rest may be interrupted twice
Total of all interruptions not to exceed one hour
During all rest, driver must have access to a bunk
At least 11 hours rest to be taken
15
Liability of Operators
• Operators must ensure drivers hours’ rules are obeyed
• Operators may be prosecuted alongside drivers for offences
• Operators and drivers offences need to be notified to the Traffic
Commissioner within 28 days of conviction
16
GB Domestic Rules
• Apply to most goods vehicles that are exempt from EU rules
• Exemptions
– Police and fire brigade
– Drivers who always drive off road
– Private driving
• Daily driving – maximum permitted is 10 hours
• Daily duty – maximum permitted is 11 hours
17
Mixed EU and GB Rules
• If a driver undertakes some driving under EU and some under GB then:
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Driving under EU cannot count as off-duty under GB rules
Driving under GB rules count as attendance at work under EU
Driving under EU count towards driving and duty limits under GB domestic rules
Any driving under EU rules in a week means
•
•
that you must take a daily rest period on those days
as well as a weekly rest period
• Driving limits – GB must always be obeyed. Anytime driving under EU,
then those rules on driving limits must be obeyed.
• Rest and breaks – must always obey EU rules on rest periods and breaks
on days and weeks in which EU rules driving is carried out
18
Working Time rules for EU drivers
• If driving under EU rules, a driver:
–
–
–
–
–
–
–
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Must not exceed average of 48 hours per week (over 17 week period).
Maximum of 60 hours in any one week
If night work performed, working time must not exceed 10 hours in a 24hr period
Cant work more than 6 hours without a break
30 minute break(s) for 6-9 hrs
45 min break(s) if more than 9 hours
A break must be 15 minutes
Records kept for 2 years
19
Working Time rules for GB drivers
• If driving under GB rules, a driver:
– Must not exceed average of 48 hours per week (over 17 week period) (can opt out)
– Health checks for night workers
– Entitlement to adequate rest
20
Powers of VOSA and Police
• Prosecute a driver and/or operator
• May prohibit drivers from driving when
– EU or GB rules limits breached
– Continued driving will break rules
– Tachograph charts fraudulent
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Analogue tachographs –
Driver’s responsibilities
Verify tachograph is correctly calibrated
Carry enough charts for whole journey (including spare)
Use second chart if a chart is damaged while in use
Ensure correct type of chart is used for specific model of tachograph
Not use a chart to cover a period longer than 24 hours
Enter centrefield details at first use and when changing vehicles
Correctly operate the mode switch
Make manual entries on chart to explain an ‘emergency’ breach
Make manual entries when equipment malfunctions
Report malfunctions to employer
Return charts to Operator within 42 days
Permit an authorised examiner or police to examine tachograph
Not remove a chart before the end of a duty period
Produce that day and previous 28 days charts at roadside
If they have a digital card, carry it on their person
22
Digital tachographs
• Store data on driver card and vehicle unit
• Operator must download data
– Driver card data every 28 days
– Vehicle Unit data every 56 days
• Drivers must carry Digicard with them even if driving analogue vehicle
23
Digital tachographs – generation 1
• Introduced in 2006
• When Digitach 1 was introduced, there were rounding errors in the system
• This meant that drivers were losing upwards of 30 mins a day of driving
time
• Caused primarily by stop start driving
• The problem was removed by the Generation 2 Tachographs.
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Comparison of Driving Time
Activity
Start
End
Total Driving
Analogue
Generation 1
Generation 2
Drive
08:00:00
08:00:05
5 seconds
5 seconds
1 minute
Zero
No Driving
08:01:00
08:01:59
Zero
Zero
1 minute
Zero
Drive
Total Driving
time
08:02:55
08:03:00
5 seconds
5 seconds
1 minute
Driving time =
3 minutes
Zero
Driving Time =
0 minutes
10 seconds
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Operators’ Responsibilities
1. Ensure tachographs have been calibrated
2. Supply type-approved charts and print roll to drivers
3. Properly instruct drivers on rules
4. Ensure drivers return charts within 42 days
5. Schedule work so that it complies with the rules
6. Download data from Vehicle Unit
7. Download data from Driver Cards
8. Check chart and digital data compliance
9. Keep records for at least 12 months
10.Take all reasonable steps to prevent breaches of rules e.g. analysis
26
Tips
• Get all tachographs independently analysed
• Make sure all drivers have undergone tachograph training (as part of
Driver CPC)
• Have annual refresher training
• Test all new driver’s understanding before they go on the road
• Have written contracts and a written disciplinary procedures in place to
allow you to deal with errant drivers
• Seek advice early if called to Public Inquiry
27
Questions?
28
(2) Financial Requirements
for an Operator’s Licence
29
Purpose of Financial Requirement?
• To ensure that the holder of an Operator’s Licence has the resources to
keep its vehicle safe on the road
30
Maintenance Contract Hire
• Even if you hire your vehicles and maintenance is included in that hire
agreement, still need to demonstrate financial standing
31
When do I need to meet Financial Standing?
• Continuing requirement throughout duration of licence
• Operators must notify TC of material changes in the availability of finance
within 28 days (condition of licence)
– E.g. if a company is heading to administration the TC needs to be notified before
administrators are appointed
• Burden on the Operator to satisfy the TC that financial standing met
32
What happens if I can’t meet it?
• Proportionality doesn’t come into it
• Revocation for lack of financial standing is mandatory
• Licence will be curtailed – if you ask
33
Level of Finance Required
• Levels differ for a Standard and Restricted Licence
• Amounts change every 1st January
• Requirement for number of vehicles on the licence (not just number being
operated)
34
Amounts Required (2013)
Licence Type
Standard
Restricted
Amount Required
First Vehicle
£7,200
Each additional vehicle
£4,000
First Vehicle
£3,100
Each additional vehicle
£1,700
35
Assessing availability of Finance
• Do not need specified amount available 365 days per year
• But an average balance over 3 month period for existing licences and 1
month for applications
• What are available funds?
– capable of being used
• Leading case poses 3 questions:
– How much money can the operator find if he needs it? Amount depends on licence
– How quickly can he find it? Must be at most 30 days
– Where will it come from? Various options
36
Names on financial statements
• All financial documents should be in the name of the applicant
• Partnerships and sole trades can (at TC’s discretion) use statements from
someone else but only if supported by a statutory declaration
• Companies could be supported by Group or cross-company guarantees
37
Types of evidence which can be used
• Bank statements
• Building society statements
At TC’s Discretion:
• Credit Card accounts
• Working capital loan facility or revolving credit agreement
• Invoice Finance or Invoice Agreement
• Annual accounts
• Real Assets
38
Physical assets – in practice
• In the case of NCF (Leicester) Ltd in 2012, the Upper Tribunal said:
“while it might appear possible, in theory, to put forward physical assets in
order to meet the requirement to be of appropriate financial standing the
practical difficulties are such that it is unlikely to prove possible in practice”
39
Types of evidence generally NOT allowed
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Cash
Bank letters (other than formal overdrafts)
Children’s accounts
Shares, savings bonds, PEPs/ISAs, savings certificates, insurance policies,
unless accompanied by accountant letter certifying value and notice
period for cashing
• Physical assets such as livestock or perishable goods
• Property, plant and machinery if their disposal would affect the business
i.e. can’t rely on the vehicles your using!
• Age debt registers
40
Assessing Bank Statements
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Assessing an average balance over 3 months (1 month for applications)
Take average of the 10 figures over 3 month period:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
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Latest figure e.g. 30 August 2013
20 August
10 August
30 July
20 July
10 July
30 June
20 June
10 June
30 May
Then add in overdraft facility
Then add any other sources of finance
41
Example
Date
Details
Debit (£)
Credit (£)
Balance (£)
30.08.13 TNT Ltd
26.00
24883.00
29.08.13 O2
37.00
24909.00
27.08.13 Fuels Ltd
2920.00
24946.00
20.08.13 Nearly
Construction
1374.00
27866.00
18.08.13 N Buckle
300.00
26492.00
09.08.13 C W Holdings
2044.00
26792.00
02.08.13 H Lendox Ltd
3020.00
28836.00
30.07.13 Fuels Ltd
2920.00
31756.00
42
Interpreting Financial Accounts
• Two most important elements are
– Profit and loss account
– Balance sheet
• On a review, Leeds will check:
– Profit and loss account is positive
– Balance sheet ratios
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Total assets / total liabilities > 1.0 i.e. Company should own more than it owes
Current assets / current liabilities > 0.5 i.e. Company can realise at least sufficient cash to pay half of its
creditors
• Current assets ratio of between 0.5 and 1.0 may indicate difficulties and
will be referred to TC
43
Statutory Declaration?
• Can only be used for partnerships or sole traders
• Guarantee from a 3rd party to provide the operator with the funds
44
Period of grace
• TC’s have discretion to allow holders of standard licences a period of up to
6 months to demonstrate that the requirement will be met on “a
permanent basis.”
45
Tips for Public Inquiry
• TC’s ask for financial evidence to be supplied to them 1 week before the PI
• Get the bank statements (or copies) , overdraft letter and accounts etc to
your solicitor quickly
• Solicitor needs to assess them before the hearing
• If there is an issue, it can be addressed by using other resources but only if
sufficient time
46
Questions?
47
(3) Operating Centres
Jared Dunbar BSc, MA, LLB
Associate, Dyne Solicitors Limited
48
When should vehicles be parked at the
Operating Centre?
• Vehicles should be parked or ‘normally kept’ at the Operating Centre
when not in use
• This is a question of fact and degree in each case
• Traffic Commissioner has stated that “this is a difficult area” and “there is
little guidance which can be issued in this regard”.
• The Traffic Commissioner only has jurisdiction over authorised vehicles
and does not extend to visiting vehicles.
49
Unauthorised Use
• Criminal prosecution (level 4 fine, £2500)
• Issue will be discussed at Public Inquiry
50
Changing Operating Centre
• Need to submit an application to the TC
• Use GV81 form – available online
51
Adverts
• On an application for an Operator’s Licence, need to advertise the
Operating Centre. Same applies if moving Operating Centres.
• If not correctly published, a TC will refuse the application
• If advert refused then new application must be made
• Must publish a notice of the application in a local newspaper with 21 days
before or 21 days after the application is made
• It must be in a ‘local newspaper circulating in the locality’ of the Operating
Centre
52
Available
• TC merely needs to be satisfied that the Operating Centre is available for
use by the Operator
• i.e. the Operator owns the land, is a tennant or had permission from the
owner to use the land.
• TC shouldn’t become involved in matters of planning law or consent or
property law.
53
Suitable
• Onus is on the applicant to satisfy the TC that the site is suitable as an
Operating Centre
54
Opposition by local residents (Representors)
• Neighbours in the vicinity are entitled to object to an Operating Centre
• No definition of ‘in the vicinity’.
• General rule is that if a representor can see, hear or smell an operating
centre from his property then he will be considered ‘in the vicinity’.
• Neighbour can only object on environmental grounds i.e. noise, vibration,
fumes and visual intrusion.
• Neighbour cannot object on road safety matters.
55
Opposition by Statutory Objectors
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Statutory Objectors are
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Police
Local Authority
Planning Authority
FTA and RHA
They can object to the Operating Centre on environmental grounds and on
grounds that applicant is not
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Of good repute
Finance
Adequate facilitates to keep vehicles safe
Adequate arrangements for complying with law
Stable establishment
Be professionally competent
56
Conditions and Undertakings
• The TC can impose certain conditions on an operating centre (in response
to neighbours complaints) such as:
– Limiting operating hours;
– Limiting number of vehicle movements in and out;
• Offence to breach a licence condition.
• Conditions only apply to the Operators authorised vehicles, so third
parties vehicles are unaffected
57
Site visits
• Traffic Commissioners may decide an application on the papers
• However, they may personally undertake a site visit
• It is regarded as essential for a TC to conduct a site visit before presiding
over any public inquiry convened with regard to the suitability of a
proposed operating centre
58
Address for Service and Correspondence
• Doesn’t need to be your Operating Centre
• Needs to be somewhere you can reliably receive important letters
• Can’t be your representative’s address
59
Complaints about existing operating centres
• TC can review an Operating Centre
– where the operator is said to be operating outside his terms of the licence
– On a variation application
– At 5 yearly intervals if a neighbour has complained
• Those complaints should be in writing
60
Schedule 4 – Transfer of Operating Centre
• If accepted there is no need to advertise
• Allows a currently used Operating Centre to be transferred to a different
operator’s licence
61
Tips
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If you need to move Operating Centre, put in an application.
Make sure the form is completed correctly.
If you can, use a schedule 4 transfer to avoid the need to advertise
Do not start using a new Operating Centre until you are authorised to
62
Questions?
63
(4) Transport Managers
64
Who needs a Transport Manager?
• Applicants for standard licences must hold a CPC or employ someone who
has a CPC
• In simple terms, operators that transport other people’s goods need a
CPC.
65
How do you become a Transport Manager?
• Need to have a Certificate of Professional Competence
(CPC)
• By Acquired Rights
– Has replaced grandfather’s rights
• By Examination
66
Definition of a Transport Manager
• A natural person – so can’t be a company
• Who effectively and continuously manages the transport activities of that
undertaking
67
External or Internal
Transport Manager?
• Can either be
– Internal: be employed by the operator with a “contract of employment”
– External: be a service provider with a “contract for the supply of services”
68
Requirements of a Transport Manager
• Be of good repute
• Be professionally competent (i.e. have a CPC)
• With an external transport manager, not acting for more than 4 operators
or for more than 50 vehicles (4 and 50 rule)
69
General responsibilities
• “Effectively and continuously manage the transport activities of that
undertaking”
• Ensure compliance including:
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Monitoring driver’s hours and tachograph use
Preventing of overloading of vehicles
Checking driving licences (every 3 months and keeping a copy)
Ensuring vehicles correctly tax
Ensuring vehicles being used are specified
Ensuring MOT’s completed on time
Ensuring drivers undertake checks and auditing them?
Ensuring vehicle inspections undertaken on time and sheets completed correctly
Ensuring convictions and other matters are notified to Traffic Commissioner
70
Repute
• Simply are they fit to work as a transport manager?
• To be discussed later by John Dyne
• Problems if convictions or penalties for:
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Commercial law
Insolvency law
Pay and employment conditions in the profession
Road traffic law
Professional liability
Trafficking in human beings or drugs
71
Hours required to do the role?
• Dependant on the number vehicles they look after
Motor Vehicles
Proposed Hours (per week)
2 or less
8
3 to 5
15
6 to 10
20
11 to 14
25
15 to 29
Full time
30 and above
(Full time) Additional
assistance required
72
Can you be a Transport Manager and a Director?
• Yes, in theory!
• But, depends how many hours you work as a director and how many
vehicles you operate.
73
4 and 50 rule
• External transport managers are only allowed to be specified on 4
different licences or look after up to 50 vehicles, which ever is lower.
• External Transport Managers should consider
– keeping a diary of each time they attend site
– Record the hours worked
– Get operator to sign to confirm
74
Geographical location of O’ Licences?
• TC has the discretion to refuse a Transport Manager from being allowed
on Licence.
• May happen if the 4 licences he looks after are at different ends of the
country.
• Rule of thumb of 1 -1.5 hours travel time each way
75
TM delegating his responsibilities?
• A Transport Manager can delegate certain aspects of his job as long as he
is still ‘effectively and continuously manages the operation’
• Grey area as to how much delegation is allowed:
– But he doesn’t need to file every sheet of paper
76
Declaration of unfitness
• Since October 2011, rules changed.
• Transport Managers are now called up in their own right and advised to
consider getting independent legal advice.
• Can now get disqualified from acting as a transport manager anywhere in
the EU
• 37 Transport Managers lost their repute in 2011-12
77
Transport Manager’s options
if problems with Operator
• If Transport Manager is overridden by Operator and being prevented from
doing his job properly, then
– Transport Manager should give the Operator a written warning
– If problem progresses, then resign
• Remaining on the licence whilst unable to perform his duties risks
damaging his repute and future job prospects
78
Change of Transport Manager
• Resignation or departure of Transport Manager is a material change - must
be notified to the TC within 28 days
• Can request a period of grace (up to 6 months)
• Information you want from a prospective Transport Manager:
– Has he been to a Public Inquiry before and, if so, why?
– What was the OCRS score for his previous employer(s)?
– Has the Operator he worked for been convicted for any transport offences?
79
Questions TC will ask
• Key questions asked by Traffic Commissioners will include:
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–
–
How many hours does the nominated person work for the licence holder?
On how many other licenses is such person nominated?
How many vehicles are they responsible for?
What is the distance between each of the operating centres for which they are
responsible?
What is the nature of the nominated person’s other duties?
Does the nominated person have sufficient time to fulfil his or her duties as Transport
Manager?
How will such person apportion his or her time between the entire licence holder’s
employing them?
Is the nominated person of good repute?
80
Questions?
81
(5) Driver Conduct Hearings
82
The Facts
Event
Figure or %
Total driver conduct cases closed
in 2011-12
13,531
Number of drivers called to a hearing
in 2011-12
2,164
Licences refused
2,004
Licences revoked
128
Licenses suspended
474
83
Hearings
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•
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Most hearing are called as a result of convictions
They are inquisitorial in nature
They provide a drive the opportunity to explain the circumstances
The hearings exist to decide whether a particular driver is ‘fit’ to hold a
vocational licence
84
Decisions
• TC may issue a written warning
• TC can disqualify a driver until he passes a test if it appears appropriate
85
Likely Outcomes
• Mobile phone use – 21 day suspension
• Falsification of tachograph charts – disqualification 1-12 months
depending on number
• Drivers’ hours offences – 28 days suspension if persistent or habitual
• Drink drive disqualification – from warning letter up to a further period of
6 months disqualification depending on length of ban and whether 1st
offence
• Totting up ban – from warning letter to disqualification
• Serious criminal offences (sexual, violence, theft) – revocation and
infinite disqualification
• Possession of drugs – suspension or revocation
86
Questions?
87