Thanks to all who attended our unique 3 day Transport Manager Compliance Course (Refresher) this last week in Manchester. Congratulations for all getting over 90% in the transfer of knowledge tasks. We weren’t too disrupted by the Conservative Party Conference. Remember that we are always available to support you, so do keep in touch.
Next week, another 3 day TM Refresher Course in Birmingham then off to the south coast for a Public Inquiry – packed our bucket and spade. As always – if you need us we are at firstname.lastname@example.org
Breaks and the Working Time Directive
This article only looks at those Drivers who operate under EC Drivers Hours Rules.
“Breaks” and the Working Time Directive – we are going to call it the Working Time Directive so those of you who are reading this and want to contact us and go on about the RTD – don’t. Most drivers and Operators call it the Working Time Directive: hence our title.
A bit of background.
Working Time = Driving + OTHER WORK.
Breaks = Breaks and DO NOT include PERIODS OF AVAILABILITY.
Easy so far…. Well it does not get any harder.
There are, in essence TWO Breaks regulations –yes, honestly that’s true – so look at it this way -there really are TWO and you have to conform to both of them, we will explain:-
BREAK RULE 1 – think of this as the “Continuous Working rule”
A driver cannot work for more than SIX hours without taking a BREAK.
That BREAK can be as little as 15 Minutes – YES, 15 minutes – that’s correct. FIFTEEN – ONE FIVE Minutes. Anyone who tells you that its 30 minutes is WRONG……
Once that 15 minute has been taken, it in effect “resets” the Drivers Continuous Working Clock and there the driver can then complete another maximum period of 6 hours straight (of Working Time) before another Break is needed. That BREAK can also be 15 minutes.
BREAK RULE 2 – think of this as the “Accumulated Working rule”
Under 6 hours – Forget it – this doesn’t apply
- Between 6 and 9 hours
If during the course of a Spreadover, a Driver accumulates between 6 and 9 hours of Working Time then that Driver must show BREAKS totalling at least 30 minutes INSIDE that Spreadover. The BREAKS have to be within the spreadover and therefore Daily and Weekly rest periods DO NOT COUNT – BREAKS are there in effect to “BREAK UP” the Drivers day.
- Over 9 hours
If, during the course of a Spreadover, a Driver accumulates over 9 hours of Working Time then that Driver must show BREAKS totalling at least 45 minutes inside that Spreadover.
As in BREAK RULE 1 – these breaks only need to be at least 15 minutes long to Qualify as BREAKS under the Working Time Directive. Therefore breaks of 18 and 27 minutes would not be enough for a 4 ½ hours Driving Breaks (as the 27 minutes would need to be 30 minutes) but the 18 and 27 would be enough for the 45 minutes under the WTD as they add up to 45 minutes.
So for Break Rule 2, simply add up the amount of Working Time accumulated and decide if it’s in Group 6 to 9 or in the Group above 9 and take the required breaks relevant to that period.
A Couple of things to remember that don’t make this any more complicated!
Breaks that a Drivers takes under EC Driver Hours Rules Count towards Working Time Directive breaks as well and vice versa – but remember the “qualifying Break limits” are slightly different under both sets of Regulations.
So, if you think about it, the maximum break time that’s ever required to comply with RULE 2 is 45 minutes. Therefore, if you take a single 45 minute break under EC Drivers Hours (for the 4 ½ hours Driving rule), then you automatically comply with Break Rule 2. End of.
The 4 ½ hour Driving Rule in the Drivers Hours rules allows breaks to be split into a 15 followed by a 30. If you do that, then each of those breaks will reset the SIX HOUR Clock as every 15 minute break resets the 6 hour cycle. Those same 15 and 30 minute breaks add up to 45 minutes which is the largest period of BREAK TIME required to comply with BREAK RULE 2.
Some of the Rumours that we have heard about the Working Time Directive – these are genuine rumours:
“You have to work at least for an hour before you can take a break” — Rubbish – you can take a break after a minute and if that break is 15 minutes you then start a new 6 hour maximum.
“All Breaks have to be at least 30 minutes long” — Rubbish – minimum qualifying breaks are 15 minutes.
“If I accumulate 12 hours of Working Time, I have to take 30 minutes of breaks before the 9 hour point and 15 minutes after then” — Rubbish – if you accumulate 12 hours of Working time the Law says you have to show 45 minutes of breaks somewhere INSIDE THAT SPREADOVER – it does not say WHERE in that spread you need to take them.
“POA counts as a break under the Working Time Directive” – Oh no it doesn’t.
“The Working Time Directive does not apply in Northern Ireland !” – OH YES IT DOES !
If you have any questions about the Working Time Directive, drop us an Email and we will get back to you.
The Senior Traffic Commissioner – Statutory Documents have just been amended again on 23rd September 2017 this time by the new Senior Traffic Commissioner Richard Turfitt. The document has some 14 chapters and is over 400 pages in length so we’d suggest not printing it out – remember the Amazon Rain Forest ! and there doesn’t seem point in printing it out as it looks like its getting amended quite often.
It’s the TC’s guide to operators on how to run a Transport Operation basically. Chapter 3 refers to Transport Managers.
The link is at :-
Two Public Inquiries this last month which saw the return of Traffic Commissioner Beverley Bell. Had the pleasure again of working with an exceptional legal team which saw the operator quite rightly, retaining their licence and their repute with no conditions. Lesson to be learned – just because the DVSA take you to a Public Inquiry really doesn’t mean its right.
We do investigate thoroughly and we report. Contact a reputable Transport Solicitor or we can help you. In Manchester next week conducting a 3 day Transport Manager Refresher Course – If you need us email – email@example.com
At a meeting last week, a senior representative from the DVSA informed the audience that Officers of the DVSA would soon start prosecuting drivers who took Regular Weekly Rest periods, in their vehicles, when not at base.
So, if we look at this issue, is it as clear as the DVSA make out? In our opinion, it’s not – well not quite!
The relevant legislation in relation to these points is: Article 8(8) of EC 561/2006 which actually says:
8(8) Where a driver chooses to do this, daily rest periods and reduced weekly rest periods away from base may be taken in a vehicle, as long as it has suitable sleeping facilities for each driver and the vehicle is stationary.
So, on first glance, the Regulations do not say what a Driver can’t not do, only what they “can” or “may” do.
Most regulations will usually say “It will be an offence to / Fail to conform to” and the like and the EC Drivers hours rules often use the terms “may be extended to / must / at most”. It would have been different had 8(8) said “Regular Weekly Rest periods may not be taken in the vehicle when away from base” – as this creates an offence with the strong implication that Reduced Weekly Rest periods are exempt from the rule.
As 8(8) currently stands, it almost seems that it is the exemption to the Rule that has been written down, rather than the rule / regulation that must be adhered to.
In February this year, following a legal dispute in Belgium, the European Court, ruled on by that well known Bulgarian advocate – Evgeni Tanchev, decided that if the regulation had wished to bring “Regular Weekly Rests” into 8(8) it would have said so, hence the infringement is created. This would now appear to have been firmed up by the EU Mobility Package on Road Transport from May 2017. This package also says that suitable accommodation is not the cab and has to be paid for by the Operator – so sleeping in a tent or sleeping bag under the truck is a non starter!
Perhaps not surprisingly there is contradiction with his view. In the latest directive from the EC regarding ranking of Drivers Hours Infringements as “Most Serious / Very Serious / Serious” (Commission Regulation (EU) 2016/403), breaching regulation 8(8) does not even appear and a search for the word “base” returns a negative result.
Both references in that Document refer to either “less than 45” or “less than 24”. There is no reference to taking “more than 45” which, as far as we can see, would be needed to prosecute this offence. Hence the planned amendment in the Mobility package – to remove the ambiguity!!! So it would appear that the EU almost tacitly accept that there is a problem enforcing it at the moment.Enforcement officers in France have been issuing fines in the region of Euros 1800 – that may not surprise many UK hauliers.
So that’s the legal bit – how about practicalities?
There is also a significant issue as regards Enforcement. This “infringement” would be historic by its very nature. When the DVSA examine a drivers records at the roadside, every period of Weekly Rest above 45 hours would become a potential offence: every single one. It would require a possibly significant dialogue between the TE and driver to establish what was an offence and what was not.
If that Driver cannot speak English, this throws up even more problems.
This of course ignores another major issue in that, currently, Digital Tachographs do not give specific locations (yes we know about the Claims from Continental/ VDO). “Sorry officer I was sleeping in my truck at the base”.
So are there any other issues, say from a logical or practical perspective
Let’s say that Jaques is an owner Driver who starts work at 06:00 every Monday and finishes, religiously, at 06:00 every Saturday. He therefore has 48 hours Weekly Rest, every weekend – he never reduces. So, as a break from his normal routine, he comes to the UK and he misses his Ferry back to France. So Jaques, decides to take his Regular Weekly Rest period, starting at 06:00 on the Saturday, in GB, in his cab. His Ferry is due to leave at 07:00 on the Monday morning with a potential 49 hours off.
At 06:30, whilst still on the Rest period, he is checked by the DVSA and prosecuted for taking a Regular Weekly Rest period, in his cab, away from base. He is being prosecuted, in effect, for taking too much rest!
So, the next month, exactly the same happens again but, on this occasion, Jaques deliberately cleans his number plates on the Sunday morning and correctly enters 5 minutes of OTHER WORK onto the Tachograph. He is therefore interrupting the Regular Weekly rest period and therefore is now complying with the law as he will have recorded at least 1 and possibly even 2 reduced Weekly Rest periods. The fact that he would take a 45 in the next “Fixed Week” is no inconvenience to him as he always does that. So he complies with the law but not the spirit of the law!
What happens in a similar situation when a Driver fully intends being compliant by taking less than 45 hours but oversleeps?
Forgetting about Drunk in Charge, what if Jaques decides to take a couple more hours off which would take him over the 45 hour figure – just to make sure he was under the limit. Is he forced to drive off in order to comply with 8(8) and risk being over the limit?
The intention of 8(8) is relatively clear and its to make sure that Drivers are not exploited to the fact that they are always away from home on the longer weekly rest period and away from their families. Cabotage covers the other point most people think that 8(8) is there for.
Like many EU / EC regulations, 8(8) is poorly written and in its current form could well be open to challenge.
We had a nice surprise in that one of our clients sent us a model of one of their tractor units and trailers. I suspect they were tired of seeing a competitor’s model we were using to explain Placement Journeys, Article 12’s and in Driver CPC and the model we had was getting a bit knocked and would certainly be subject of many a PG9 and prohibitions from the DVSA.
Opened the box, put the model on the table and went to make a brew. On returning to the table was shocked to see that the Toy Town Police had stopped the truck already after it only being ‘on the road’ for 15 minutes.
Fortunately the driver had already done their daily checks, recorded it as other work and filled out their slick Aquarius Clockwatcher defect reporting app on their phone.
I watched the encounter, the check of the driver hours, the wander round, kick a few tyres and the driver, tractor and trailer was given the full ‘All Clear” and a “Well Done Driver” and in this case the happy Toy Town Police resumed patrol to find another truck or coach.
What we want to say is, are your drivers ready for a roadside check? Do they know the regulations? Do you as an Operator know them? Are you prepared for an impromptu visit from the DVSA to inspect your operation in both Driver Hours and Maintenance?
Remember the DVSA don’t have to make an appointment they can and will enter at any reasonable time.
An audit might be just what you may need to help you sleep from the nightmares of Toy Town.
Contact us at firstname.lastname@example.org for your operator compliance needs.