Operator Licensing: Tachographs and Driver

1
Operator LicensingTachographs and Drivers
Hours, Financial Standing, Operating Centres,
Transport Managers and Driver Conduct Hearings

• Jared Dunbar BSc, MA, LLB
• Associate, Dyne Solicitors Limited

2
My background

• Associate at Dyne Solicitors Limited,
  specialising in Road Transport Law.
•   
• Previously worked in the automotive industry
  throughout the UK and Europe.
•  
• 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.
•  

3
Transport Law A complex area?

• Senior Traffic Commissioners Statutory Guidance
• Totals over 300 pages
• Wilkinsons Road Traffic Offences
• Approximately 4000 pages long
• VOSAs enforcement sanctions policy
• Over 300 pages long
• Over 600 different offences

4
Sanctions for Transport Problems

• You risk being
• Prosecuted - fined, disqualified, imprisoned
• Called to a Public Inquiry where you risk
• Losing your Operators Licence
• Having you licence suspended
• Having your licence curtailed

5
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 drivers hours 2012-13 89,561
Proportion with drivers hours prohibitions 19
VOSA maintenance visits 2,656
Proportion unsatisfactory 78.4
6
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
7
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)
8
(1) Drivers Hours and Tachographs

9
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

10
Exempted Vehicles

• Total exemption from all rules given to drivers
  of vehicles used by
• Armed Forces
• Police
• Fire Brigade

11
EU Rules

• Exemptions include
• Refuse collection
• Radio and TV broadcasting
• Gas, electricity and water services

12
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

13
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)

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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

15
EU Rules Trains and Ferries

• 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

16
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

17
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

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Mixed EU and GB Rules

• If a driver undertakes some driving under EU and
  some under GB then
• 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

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Working Time rules for EU drivers

• If driving under EU rules, a driver
• 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

20
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

21
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

22
Analogue tachographs Drivers 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

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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

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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 080000 080005 5 seconds 5 seconds 1 minute Zero
No Driving 080100 080159 Zero Zero 1 minute Zero
Drive 080255 080300 5 seconds 5 seconds 1 minute Zero
Total Driving time     10 seconds Driving time 3 minutes Driving Time 0 minutes
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Operators Responsibilities

• Ensure tachographs have been calibrated
• Supply type-approved charts and print roll to
  drivers
• Properly instruct drivers on rules
• Ensure drivers return charts within 42 days
• Schedule work so that it complies with the rules
• Download data from Vehicle Unit
• Download data from Driver Cards
• Check chart and digital data compliance
• Keep records for at least 12 months
• Take all reasonable steps to prevent breaches of
  rules e.g. analysis

27
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 drivers 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

28
Questions?
29
(2) Financial Requirements for an Operators
Licence

30
Purpose of Financial Requirement?

• To ensure that the holder of an Operators
  Licence has the resources to keep its vehicle
  safe on the road

31
Maintenance Contract Hire

• Even if you hire your vehicles and maintenance is
  included in that hire agreement, still need to
  demonstrate financial standing

32
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

33
What happens if I cant meet it?

• Proportionality doesnt come into it
• Revocation for lack of financial standing is
  mandatory
• Licence will be curtailed if you ask

34
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)

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Amounts Required (2013)
Licence Type Amount Required
Standard First Vehicle 7,200
Each additional vehicle 4,000
Restricted First Vehicle 3,100
Each additional vehicle 1,700
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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

37
Names on financial statements

• All financial documents should be in the name of
  the applicant
• Partnerships and sole trades can (at TCs
  discretion) use statements from someone else but
  only if supported by a statutory declaration
• Companies could be supported by Group or
  cross-company guarantees

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Types of evidence which can be used

• Bank statements
• Building society statements
• At TCs Discretion
• Credit Card accounts
• Working capital loan facility or revolving credit
  agreement
• Invoice Finance or Invoice Agreement
• Annual accounts
• Real Assets

39
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

40
Types of evidence generally NOT allowed

• Cash
• Bank letters (other than formal overdrafts)
• Childrens 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. cant rely on the
  vehicles your using!
• Age debt registers

41
Assessing Bank Statements

• Assessing an average balance over 3 months (1
  month for applications)
• Take average of the 10 figures over 3 month
  period
• 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

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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
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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
• Total assets / total liabilities gt 1.0 i.e.
  Company should own more than it owes
• Current assets / current liabilities gt 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

44
Statutory Declaration?

• Can only be used for partnerships or sole traders
• Guarantee from a 3rd party to provide the
  operator with the funds

45
Period of grace

• TCs 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.

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Tips for Public Inquiry

• TCs 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

47
Questions?
48
(3) Operating Centres

• Jared Dunbar BSc, MA, LLB
• Associate, Dyne Solicitors Limited

49
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.

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Unauthorised Use

• Criminal prosecution (level 4 fine, 2500)
• Issue will be discussed at Public Inquiry

51
Changing Operating Centre

• Need to submit an application to the TC
• Use GV81 form available online

52
Adverts

• On an application for an Operators 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

53
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 shouldnt become involved in matters of
  planning law or consent or property law.

54
Suitable

• Onus is on the applicant to satisfy the TC that
  the site is suitable as an Operating Centre

55
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.

56
Opposition by Statutory Objectors

• Statutory Objectors are
• 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
• Of good repute
• Finance
• Adequate facilitates to keep vehicles safe
• Adequate arrangements for complying with law
• Stable establishment
• Be professionally competent

57
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

58
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

59
Address for Service and Correspondence

• Doesnt need to be your Operating Centre
• Needs to be somewhere you can reliably receive
  important letters
• Cant be your representatives address

60
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

61
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 operators licence

62
Tips

• 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

63
Questions?
64
(4) Transport Managers
65
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
  peoples goods need a CPC.

66
How do you become a Transport Manager?

• Need to have a Certificate of Professional
  Competence (CPC)
• By Acquired Rights
• Has replaced grandfathers rights
• By Examination

67
Definition of a Transport Manager

• A natural person so cant be a company
• Who effectively and continuously manages the
  transport activities of that undertaking

68
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

69
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)

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General responsibilities

• Effectively and continuously manage the
  transport activities of that undertaking
• Ensure compliance including
• Monitoring drivers 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 MOTs 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

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Repute

• Simply are they fit to work as a transport
  manager?
• To be discussed later by John Dyne
• Problems if convictions or penalties for
• Commercial law
• Insolvency law
• Pay and employment conditions in the profession
• Road traffic law
• Professional liability
• Trafficking in human beings or drugs

72
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
73
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.

74
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

75
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

76
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 doesnt need to file every sheet of paper

77
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

78
Transport Managers 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

79
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?

80
Questions TC will ask

• Key questions asked by Traffic Commissioners will
  include
• 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 persons
  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 holders employing
  them?
• Is the nominated person of good repute?

81
Questions?
82
(5) Driver Conduct Hearings
83
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



84
Hearings

• 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

85
Decisions

• TC may issue a written warning
• TC can disqualify a driver until he passes a test
  if it appears appropriate

86
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

87
Final quote and Questions?

• Mr Dunbar has moved heaven and earth since he
  was instructed on Thursday. He has put together
  a very good case so, if he can do that in
  effectively five days, I am sure he can do a lot
  more in five weeks.
• Traffic Commissioner (October 2013)