Consultation on the UK's proposal for implementing the working time directive for mobile workers in the road transport sector (2002/15/EC)
1.1 This consultation paper asks for your views on how the Government should implement the European Directive (2002/15/EC) "on the organisation of the working time of persons performing mobile road transport activities", into UK law.
1.2 For the purposes of the consultation document, this sectoral working time directive will be referred to as the Road Transport Directive (RTD). All mobile workers who are covered by the EU drivers' hours rules (Regulation 3820/85/EEC) will benefit from the protection offered by the RTD. This commentary describes in detail its provisions and the options the Government is considering for implementing the directive into domestic legislation. A second consultation exercise on the draft Regulations will be launched next year, once a decision on the key issues has been taken.
1.3 The Government will be transposing the RTD into UK legislation by 23 March 2005. To inform this process, we would like you to provide comments on the Government's proposals for implementing the directive. Although comments on all aspects of the proposals are welcome, some specific questions are posed in this document. In particular: Which (if any) of the derogations should be implemented [see section 6].
Whether we are taking the right approach on enforcement [Section 7].
1.4 A summary of all the questions in this document is attached at annex B. You have until Friday 23 January 2004 to respond, but it would help us considerably, if you could give your views as soon as possible. This paper has been prepared in consultation with the devolved administrations of Scotland, Wales and Northern Ireland, with whom you are welcome to make direct contact about any implications for devolved responsibilities.
1.5 The consultation document is divided into the following sections:
1.6 Our consultation document provides a summary of the
contents of the directive, including (on some issues) the
Government's preliminary views. A full text of the
consultation document and the regulatory impact assessment
can also be found on the internet by clicking on the
consultation papers link in the Freight Transport Logistics
section of the DfT website:
http://www.dft.gov.uk/freight/rtd
1.7 A copy of the RTD can be found on the European
Commission's Euro-Lex website at:
http://europa.eu.int/eur-lex/pri/en/oj/dat/2002/l_080/l_08020020323en00350039.pdf
or in paper form through the Stationery Office quoting reference number:
ISB 011978085 at the address below:
The Stationery Office
PO Box 29
Norwich
NR3 1GN
or telephone: 0870 600 5522 and ask for the Sales section.
1.8 When the Regulations are presented to Parliament they must be accompanied by a full regulatory impact assessment (RIA). As well as from the DfT website (see 1.6), a paper copy of the RIA can be obtained by emailing your name and address to workingtime@dft.gsi.gov.uk or by ringing (020) 7944 8800. We would be grateful for any comments from those affected on the scale of the possible costs and benefits of implementation.
1.9 This consultation is being conducted in accordance with the criteria contained in the Cabinet Office 'Code of Practice on Written Consultation'. A summary of the criteria is at Annex C. A full version of the code can be found at:
http://www.cabinetoffice.gov.uk/regulation/consultation/code/index.asp
If you have any comments or wish to make a complaint about the consultation process itself, please contact:
Andrew Price
Departmental Consultation Co-ordinator
CSD2
Zone 4/11 Great Minster House
76 Marsham Street
London
SW1P 4DR
e-mail: andrewd.price@dft.gsi.gov.uk
1.10 The consultation period will finish at 5pm on Friday 23 January 2004. We cannot guarantee that any responses received after this date will be considered.
1.11 We welcome your views on the safety, economic or social effects that the proposals would have either in the UK, or for UK businesses; and particularly on the specific effects they may have on you or your organisation. Any examples or evidence supporting your views would also be very helpful.
1.12 The results of the consultation exercise will help inform the Government's decision on the key issues. Responses to this document will be considered carefully, but we have no plans to confirm or acknowledge receipt of your comments. After analysing all the responses, we will publish a summary of the results of the consultation exercise. A copy of this summary will be sent to everyone who responds to the consultation exercise. Please let us know if you want your response to be treated in confidence, otherwise your name might be quoted or made available to the public when we publish a summary of the responses. Replies should be sent to:
"RTD Consultation Exercise"
Dept for Transport
RFOP 5
Zone 2/23 Great Minster House
76 Marsham Street
London SW1P 4DR
Fax: (020) 7944 2928
Or you could e-mail them to workingtime@dft.gsi.gov.uk
1.13 We would like to take this opportunity to thank you in advance for your assistance. If you have any questions, require advice or have points to make regarding the nature of this consultation exercise please ring (020) 7944 8800.
1.14 The UK Regulations need to come into force by 23 March 2005 and will cover mobile workers (as defined by the RTD) employed by undertakings who are participating in road transport activities that are covered by EU drivers' hours rules. Self-employed drivers (again, as defined under the RTD), will not be affected until 23 March 2009. The Department for Transport will draft the regulations for Great Britain. Separate regulations will apply to Northern Ireland.
1.15 The main provisions under the RTD are:
1.16 Unlike preceding legislation on working time, individuals cannot choose to "opt-out" of the average 48 hour week. However, any time classified as a break, rest, or a "period of availability" (see section 3) does not count towards any of the working time limits. These periods are not defined as working time under the RTD.
1.17 On 23 November 1993, Council Directive 93/104/EC was adopted and introduced working time provisions for most sectors of employment. However, employees in the transport sector (along with junior doctors, offshore workers and sea fishermen etc), were excluded temporarily. The UK implemented the original directive in 1998, by way of the "Working Time Regulations 1998".
1.18 The European Commission adopted a White Paper in July 1997 and invited social partners (representatives from both sides of industry) to reach an agreement on the implementation of working time for the excluded sectors. The Commission's preferred option was a differentiated approach which drew a distinction between excluded sectors who could be accommodated under the Working Time Directive, and those who would require separate measures to reflect the specific needs of their sector.
1.19 Despite intensive negotiations it was impossible for social partners in the road transport sector to reach an agreement which would form the basis of, or replace the Commission's original proposals. So in 1998 the Commission published two sets of proposals. First, an amendment to the original directive - known as the Horizontal Amending Directive (HAD), which brought the excluded sectors within scope of the original working time directive. Second, a sector specific proposal for mobile workers in the road transport sector. The HAD was agreed and adopted on 1 August 2000 and was implemented into domestic legislation on 1 August 2003. The new regulations are called the Working Time (Amendment) Regulation 2003 (SI. 1684) and the Working Time (Amendment No.2) Regulations (N.I. 2003) SR 2003/330.
1.20 Agreement at European level for the sector specific proposal was delayed - largely because of the difficulty in reaching agreement on whether to include self-employed drivers. A text for the RTD was agreed by the Council of Ministers and the European Parliament at the end of 2001. This was finally adopted and published in the Official Journal on 23 March 2002, and gave Member States 3 years to transpose and implement the Directive into their domestic legislation. The RTD will not apply to self-employed drivers until March 2009.
2.1 The Directive states that:
The purpose of this Directive shall be to establish minimum requirements in relation to the organisation of working time in order to improve the health and safety protection of persons performing mobile road transport activities and to improve road safety and align conditions of competition.
2.2 Working time legislation already covers other employment sectors, providing employees with basic health and safety protection. In the longer term it should improve the image of the road transport industry and make it easier to recruit and retain staff.
2.3 The directive applies to:
mobile workers employed by undertakings established in a Member State, participating in road transport activities covered by Regulation (EEC) No 3820/85 or, failing that, by the AETR Agreement.
The scope of the directive needs to be considered alongside the definition of "mobile worker" which is discussed under section 3.14. However, in general the new UK Regulations will apply to:
A mobile worker must tell their employer (in writing) of any hours worked for another employer. A worker who performs other work, of any kind, that is outside the scope of the RTD, must give his employer written details of any hours worked on that other work. Such hours will count towards the average 48 hour weekly limit. (see also 4.4 and 7.1).
2.4 The directive does not apply to:
2.5 The Government will advise consignors, freight forwarders, prime contractors, subcontractors and enterprises that employ mobile workers, about the requirement of this directive. Contractual obligations should not be used to undermine the provisions of this Directive.
Q1: Are there any other categories of workers we have not identified, who may be affected by the Road Transport Directive?
Q2: Work outside the RTD is included in the average 48 hour weekly limit - what effect will this have?
a) What other work outside the scope of the RTD do mobile workers currently perform?
Q3: The Regulatory Impact Assessment considers the impact of the RTD on drivers. Do you foresee any significant problems in applying the RTD to other mobile workers?
2.6 Uniquely for working time legislation, the RTD will apply to self-employed drivers from 23 March 2009. Before then, the European Commission has agreed to review the impact of the RTD. They will analyse the consequences of excluding self-employed drivers, in respect of road safety, conditions of competition, the structure of the profession as well as its social aspects.
2.7 Following this review, the three European institutions (the European Commission, the Council of Ministers and the European Parliament) would need to agree to a partial or total exclusion of the self-employed, in order to overturn this provision in the RTD. Otherwise, all self-employed drivers would be covered by default from March 2009. The Government will need to review the UK Regulations before 2009 to reflect any changes that are agreed after the Commission's Review.
2.8 Mobile workers who are not within the scope of the RTD, are subject to provisions under the original working time directive (93/104/EC) as amended by the horizontal amending directive (HAD) - 2000/34/EC. This amending directive was implemented on 1 August 2003 as the Working Time (Amendment) Regulation 2003 (SI. 1684) and the Working Time (Amendment No.2) Regulations (N.I. 2003) SR 2003/330. There are four provisions that apply to mobile workers under these regulations:
2.9 Mobile workers subject to the RTD are also entitled to annual leave and health checks. Guidance on the application of the existing working time regulations, as amended by the HAD can be found on the DTI website: http://www.dti.gov.uk/employment/employment-legislation/employment-guidance/page14232.html or can be obtained from the orderline number 0870 1502 500.
2.10 Where the RTD's provisions for mobile workers performing road transport activities are more specific than the original working time directive (93/104/EC) as amended by the HAD, the RTD takes precedence (Article 2.3 RTD).
2.11 The EU drivers' hours rules will continue to apply. The RTD will supplement those provisions.
3.1 Article 3 of the Road Transport Directive (RTD) establishes the definitions for terms used by the Directive. The main definitions are:
"Working Time" and "Periods of Availability"
3.2 The definition of working time (and what is not working time) is more detailed in the RTD than under the UK's existing Working Time Regulations. Article 3(a)(1) of the RTD provides the definition of working time for employees.
3.3 Working time should not be confused with shift or duty time. Breaks during a shift (whether paid or unpaid) do not count toward working time. Waiting time can also be discounted, as long as it conforms to the conditions that would see it classified as a 'period of availability' (PoA). It might be helpful to compare the definition of working time alongside the definition on "periods of availability" (PoAs). The main points to note are:
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Working time covers: |
Periods of Availability cover periods other than breaks or rest periods: |
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3.4 Take the example of when a driver experiences long delays at a Regional Distribution Centre or at a depot, waiting for someone to load or unload his vehicle. Under the RTD, this could be either working time or a period of availability depending on the particular circumstances. It would count as working time if the driver is required to stay at his workstation (i.e. because he about to be given some work to do), and if the length of the delay is not known to him in advance. However, if he does know about the delay in advance (i.e. either before departure or just before the start of the waiting period in question), then this time can be counted as a period of availability.
3.5 Other points:
3.6 The RTD allows some flexibility concerning the duration and amount of advanced warning that the mobile worker may be given, for waiting time to count as a period of availability. A social or workforce agreement can be used to set out these parameters and any conditions which may apply.
3.7 The definition of working time for self-employed drivers (Art 3(a) (2)) is similar to that applied to employees, but does not include "general administrative work that is not directly linked to the specific transport operation under way".
Our proposal: These definitions will be incorporated into the UK regulations without any elaboration. We hope to clarify any points in guidance if the consultation reveals difficulties with these definitions. The advantage of this approach is that our guidance can be quickly modified if necessary.
Q4: What do you think of this approach?
a) Are there any situations that our proposal fails to address?
3.9 The RTD states:
'self-employed driver' shall mean anyone whose main occupation is to transport passengers or goods by road for hire or reward within the meaning of Community legislation under cover of a Community licence or any other professional authorisation to carry out the aforementioned transport, who is entitled to work for himself and who is not tied to an employer by an employment contract or by any other type of working hierarchical relationship, who is free to organise the relevant working activities, whose income depends directly on the profits made and who has the freedom to, individually or through a cooperation between self-employed drivers, have commercial relations with several customers.
3.10 The definition under the RTD is not the same as the definition under the Employment Rights Act 1996, or under the Working Time Regulations 1998. Nor is the test the same as applied by the Inland Revenue. The UK Regulations must therefore mirror only the definition in the RTD.
3.11 It is relatively easy to switch from one employment status to another in the road haulage industry. However, the definition of a self-employed driver under the RTD is a very narrow one. This will make it difficult for anyone wishing to switch employment status to avoid being covered the RTD. The amount of control that the worker has over their work is a key point, as is their reliance on profits to provide them with an income. For example, if the worker is restricted (either implicitly or explicitly) from working for another client / customer, then they would be classified as employed under the RTD. In addition, most agency drivers would not qualify because they get paid at hourly rate and do not take a share of the profits. Drivers who do not satisfy the criteria for being self-employed under the RTD, will (along with employees) be subject to the UK Regulations from March 2005 (see section 7.7).
Our proposal: That we incorporate this definition of self-employed driver into UK Regulations and cover any ambiguities in Guidance.
Q5: What problems (if any) does this definition of the "self-employed driver" create for industry?
3.13 Includes the main place of business, subsidiary places of business, the vehicle's cab; in and around the vehicle and other places where the driver might work (e.g. when unloading a vehicle at the customer's site.)
3.14 The directive defines mobile worker as:
...any worker forming part of the travelling staff, including trainees and apprentices, who is in the service of an undertaking which operates transport services for passengers or goods by road for hire or reward or on its own account;
3.15 Its scope is limited to road transport services, but otherwise this definition of mobile worker is broadly similar to the definition of mobile worker under the Horizontal Amending Directive. It covers occupational drivers, driving freight or passenger services, whether the employer provides those services for others (on terms of hire or reward), or for itself on its own account (e.g. a driver working for a supermarket chain)
3.16 The definition also covers other mobile workers (the crew and other travelling staff). However, the RTD will only apply to mobile workers participating in road transport activities covered by EU drivers' hours rules.
3.17 The RTD states that a week shall mean " ...the period between 00.00 hours on Monday and 24.00 hours on Sunday". This definition is similar to, and compatible with the definition of a week under the Working Time Regulations 1998 (Regulation 11(6)). It is also in line with the definition under the EU drivers' hours rules.
3.18 Under the RTD, "night time" is not defined in the same way as under the main working time directive (as amended). The RTD defines night time as "a period of at least four hours, as defined by national law, between 00.00 hours and 07.00 hours". Initial soundings from both sides of industry have revealed a preference for 00.00 - 04.00 from the haulage industry, largely because of the need to avoid early starters being caught. This period affects the least number of drivers. If a later period were chosen (say 3.00 - 7.00), it might affect more than 50% of drivers. The coach and bus industry prefer a slightly later period of 01.00 - 05.00, to avoid coach drivers being caught returning from late night excursions.
3.19 Under the RTD, mobile workers will be subject to the 10 hour limit if they do any night work at all. Night work is defined as "any work performed during night time". So, even if a mobile worker only does 5 minutes work during this night time period, he will be subject to a 10 hour working time limit for that 24 hour period.
Our proposal: The Government is minded to define night time under the UK regulations as a period between 00.00 - 04.00
Q6: Do you agree that "night time" should be defined as a period between 00.00 and 04.00?
a) If not, which period should the Government consider and why?
4.1 This section sets out how we propose to implement the weekly working time limits under the Directive, along with the 10 hour limit for night work.
4.2 The RTD places the following restrictions on weekly working time:
4.3 The new UK regulations will introduce a 17 week reference period to calculate the average working time. This is roughly equivalent to the 4 month period specified under the RTD. The reference period will only be less than 17 weeks if the worker has been employed for a short length of time; in which case, the reference period will be the time that has elapsed since the start of his or her employment.
4.4 If an employee works for two or more employers, then the weekly working time is the combined total of the hours worked (excluding breaks, rest and periods of availability) for all the employers.
4.5 Employers must ask the mobile worker concerned in writing for an account of time worked for another employer and a written record needs to be kept by the employer of any time spent working elsewhere. The mobile worker must declare this information in writing. The requirement for an employee to disclose this information could be set out in a contract of employment, or under a social or workforce agreement.
4.6 Article 4a of the RTD permits one exception to the 60 hour weekly limit. The 4th & 5th subparagraph of Article 6(1) of the EU drivers' hours rules take precedence. This allows coach and bus drivers on an unscheduled international service to drive their vehicle up to 65 hours in a single week. However, the mobile worker is still bound by the average 48 hour working week.
4.7 The RTD does not specify whether the reference period should be a fixed or rolling 4 month period. Regulation 4(6) of the Working Time Regulations 1998 establishes the rolling 48 hour week as the norm. However, it also permits a fixed period to be set - as long as this is agreed under a workforce agreement.
4.8 Under a rolling average, the reference period should not for any period of 4 months, result in an average working week in excess 48 hours. For example, in addition to the period from January to April not exceeding the 48 hour average, the period from February to May should not exceed the average - and so on. Nor indeed should any other consecutive 4 month period in the weekly record exceed the average 48 hour working week.
4.9 Alternatively, there are two methods of fixing the 48 hour average:
4.10 Both fixed options could simplify the monitoring and enforcement of compliance. In particular the first option - (4.9 i), could increase flexibility for companies during busy periods. All mobile workers would have the same calendar reference period to calculate the average 48 hour week. If the busiest period was divided by the break that separates two reference periods, this would reduce the chance of a breach in the average 48 hour weekly limit. The disadvantages are for the employee, who could receive less protection under this regime than under a rolling regime. In addition, this option makes it difficult to calculate the average working time when a worker is sick or takes annual leave during the reference period. Under existing legislation, additional time is taken from subsequent weeks (e.g. weeks 18 and 19) to calculate the average, to offset any time lost during the 17 week calendar period. This could not be done under this option.
4.11 Although more flexible than a rolling week, the second fixed option (4.9 ii) would not allow companies as much flexibility to meet peak demand as the first option. However, it is compatible with the existing method of calculating the average 48 hour week under the Working Time Regulations 1998.
Q7: Would you prefer a rolling or fixed reference period for calculating the average 48 hour week?
a) Why
Q8: Which method (if any) of fixing the reference period would you prefer?
a) Why?
b) Should this fixed reference period be subject to any conditions?
4.12 The night time period is to be defined in national legislation, (see definitions - 3.18) and must be a period of at least 4 hours between midnight and 7.00am.
4.13 The EU drivers' hours rules have no separate limits for night workers. Under these rules drivers can drive 9 hours at night (maximum 10 hours a night, twice week) - the same amount of driving as day workers. The RTD states that:
4.14 Any compensation given for night work should be in accordance with collective agreements or set out in a workforce agreement between both sides of industry. The Directive does not define compensation, but requires that it not endanger road safety.
4.15 The European Commission will assess the consequences and impact of the night work provisions under the RTD 23 March 2007. They may propose changes.
5.1 This section sets out the mandatory break and rest requirements under the Road Transport Directive (RTD). For apprentices and trainees, the daily and weekly rest requirements will mirror the existing requirements under EU drivers' hours rules. Drivers will, of course, be subject to those requirements directly. Similarly, when driving, the existing break requirements under the EU drivers' hours rules will take precedence. However, when driving is mixed with other work, the break provisions under the RTD will sometimes apply in addition.
5.2 When driving, the EU drivers' hours rules require 11 consecutive hours rest in each period of 24 hours (calculated from the moment the driver commences work), with the possibility of reducing this to 9 consecutive hours up to 3 times a week. Alternatively, 12 hours rest may be taken in two or three periods, the last of which must be at least 8 consecutive hours long.
5.3 The EU drivers' hours rules require 45 consecutive hours weekly rest, but this can be reduced down to 36 or 24 hours (depending upon where it is taken) provided that any reduction is compensated for within three weeks. Rest requirements, are additional to any paid annual leave entitlement that drivers are entitled to under other working time legislation.
5.4 The EU drivers' hours rules require a break of 45 minutes after 4½ hours cumulative or continuous driving (or 2 or 3 breaks of no less than 15 minutes during or immediately after the driving period). However, the break requirements under the RTD may still have an impact on those workers who do a mixture of driving and non-driving work.
5.5 The RTD requires;
5.6 When taking a break, drivers may not perform anything that might be regarded as "other work" during this period.
5.7 Breaks taken under the Road Transport Directive may be taken at the workstation, including the driver's cab.
1. ½ hour other work + 4½ hour driving triggers a 45 minute break under EU drivers hours rules. Another 4½ hours driving triggers another 45 minute break under EU drivers hours rules. No breaks taken under the RTD. Daily break time = 90 minutes
2. 4 hours other work + 2 hours driving triggers a break (30 minutes) under RTD. Another 3 hours work (9 hours in total) and another 15 minute break is needed under the RTD. Total breaks = 45 minutes
3. Three hours driving + 2 hours other work + 1 hour driving will trigger 30 minute break under the RTD. Another ½ of driving, requiring another 15 minute break under the EU drivers rules. No further breaks are required. Daily break time = 45 minutes
4. 3 hours driving + 2 hours availability + 3 hour other work triggers the 30 minute break requirement under the RTD. Another 1½ hours driving triggers the remaining 15 minutes under EU drivers' hours rules. No further breaks are required. Daily break = 45 minutes. (If all the conditions are met, the a driver could take his mandatory break during the PoA)
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6.1 The Government is seeking views on whether either of the two derogations should be included under the new UK regulations. These would;
This section describes the "derogations" that are permitted under the RTD and the circumstances in which they might be applied. Recital 16 of the RTD also states "as a general rule, in the event of a derogation, the workers concerned must be given compensatory rest periods".
Article 8
1. Derogations from Articles 4 and 7 may, for objective or technical reasons or reasons concerning the organisation of work, be adopted by means of collective agreements, agreements between the social partners, or if this is not possible, by laws, regulations or administrative provisions provided there is consultation of the representatives of the employers and workers concerned and efforts are made to encourage all relevant forms of social dialogue.
2. The option to derogate from Article 4 may not result in the establishment of a reference period exceeding six months, for calculation of the average maximum weekly working time of forty-eight hours.
6.2 An extension of the reference period for calculating the average 48 hour week. The reference period for calculating the 48 hour average week can be extended from 4 months, to up to 6 months. The feedback we have received from parts of industry suggests that some sectors are seasonal, and would benefit if a longer reference period were permitted to provide extra flexibility for peak periods. On the other hand, we are also aware that some workers may feel their protection will be eroded if a longer reference period were permitted.
6.3 A derogation from the 10 hour limit for night work. We have been told there is a risk that some firms might decide to scale down their night work operations and run more lorries during day time hours if derogations are not permitted. If so, this would increase levels of congestion, pollution, and possibly increase the risk of multi-vehicle accidents.
6.4 Research shows there is an increased risk of accidents at night resulting from driver fatigue. In the Regulatory Impact Assessment, we have assumed that fatigue related accidents at night would be reduced by up to 10%, if a 10 hour limit were introduced for night work. However, we are not sure how much extra risk a driver faces if he does a 12-13 hour night shift compared with an 11 hour shift (which would probably occur with a 10 hour limit on working time, taking periods of availability and mandatory breaks into account).
6.5 Before a derogation can be used, the RTD stresses the need for social dialogue between both sides of industry. Two forms of social dialogue are referred to under Regulation 2(1) of the Working Time Regulations 1998. These are:
a) "collective agreement" meaning an agreement or arrangement made by or on behalf of one or more trade unions and one or more employers or employers' associations, on the condition that such an agreement is with an independent trade union;
b) "workforce or company agreements".
6.6 A "workforce agreement" was a new concept when the Working Time Regulations 1998 were introduced. It enables an agreement to be made at company level, between an employer and any workforce (or part of a workforce), whose terms and conditions are not set by collective bargaining. It can establish the way in which particular entitlements and limits would apply to the workers and also enables the use of derogations provided under working time legislation to be introduced. It does not require the participation of a trade union, if none is represented.
6.7 Schedule 1 to the Working Time Regulations 1998 sets out conditions and requirements which must be satisfied for an agreement to constitute a "workforce agreement" for the purposes of the Regulations.
Q9: Should a derogation for extending the reference period (to 6 months) for calculating the average 48 hour week be allowed?
a) Why?
Q10: Should a derogation from the 10 hour limit in Article 7 for night work be allowed?
a) Why?
b) Should it be subject to certain conditions (e.g. a 12 hour limit for night workers on condition that drivers take additional breaks and receive additional compensatory rest)?
7.1 Employers must keep records for 2 years after the period covered. These records must include the weekly working time and time spent working at night (if applicable) for mobile workers who are subject to the directive. Details of any workforce or collective agreements also need to be kept.
7.2 Under the RTD, employers are responsible for recording the working time of mobile workers. The Directive does not specify how these records should be kept - so it will be up to individual firms to decide which system is most appropriate.
7.3 In brief, employers must:
7.4 The mobile worker must tell their employer (in writing) of any time worked for another employer.
7.5 Failure to observe the working time limits in respect of a worker would render an employer liable to penalties.
7.6 The main provisions that need to be enforced under the RTD are:
7.7 Enforcement officers will also need to be able to recognise which drivers are within scope - whether they are subject to EU drivers hours rules and importantly, (at least until 2009) which drivers are self-employed under the directive. The definition of self-employed under the RTD is not the same as the criteria used by the Inland Revenue (see 3.9). Nevertheless, self-employed drivers might find it helpful to have some documentary evidence available to support their claim as being self-employed.
7.8 Breaks and (if appropriate) periods of availability will need to be netted off from the working time totals. If a dispute occurs, the burden of proof will be on the employer - so clear records will need to be kept. In addition, enforcement officers will need to be informed of which (if any) derogations apply to a particular worker, as well as any information from a collective / workforce agreement that may be appropriate in determining whether a breach has occurred.
7.9 There are four levels of enforcement that could be used. These four options are cumulative (so option 4 also includes the first 3 options as well).
7.10 The most basic option would be to mirror existing enforcement practice that currently applies to other sectors under the main Working Time Directive. Under existing regulations, the enforcement of working time is in response to complaints received by individuals.
7.11 Would see enforcement officers checking a sample of working time records at an employer's premises, as part of another visit (e.g. in response to a licensing issue or as part of an investigation into a breach of drivers' hours rules).
7.12 Would see enforcers making targeted checks on working time records at an employer's premises.
7.13 The 10 hour limit for night work (and possibly the 60 hour limit) could be enforced at the roadside using tachograph records and other documentation. This would be effective against foreign operators and the self-employed drivers, but would require significant additional resources. To be effective, drivers would have to keep tachograph charts for 2 weeks in their cab and any other relevant documents (e.g. a copy of the workforce agreement). This level of enforcement would be higher than that experienced under other sectors of UK employment.
7.14 Even with the advent of digital tachographs, it is unlikely that the average 48 hour week could be enforced at the roadside.
7.15 Until recently, the Health & Safety Executive (HSE); HSE (NI); and local authorities enforced all mandatory requirements on working time in the UK. However, when the Horizontal Amending Directive (HAD) was implemented on 1 August 2003, HSE was allowed to delegate responsibility for enforcement of the HAD to other enforcement bodies, more appropriate for the sector of employment concerned. Consequently, the Maritime and Coastguard Agency enforce the HAD on mobile workers on inland waterways and the Civil Aviation Authority enforce working time rules on pilots.
7.16 In the road transport sector, Vehicle & Operator Services Agency (VOSA) - formerly Vehicle Inspectorate, enforce the HAD on drivers and crew who are covered by drivers' hours rules. The Driver and Vehicle Testing Agency (DVTA) enforce the HAD for those working in Northern Ireland.
7.17 VOSA examiners and DVTA (NI) have a close working relationship with drivers who are subject to the RTD. By March 2005, they will have had some experience of enforcing working time legislation under the HAD, on drivers in the road transport sector. They would also be the obvious choice to enforce any new regulations based on the RTD.
7.18 Taking all above points into consideration, we propose:
Q11: Are you content with the approach we plan to take in enforcing this legislation?
a) What changes (if any), would you like to see, and why?
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Comparison table - Road Transport Directive (2002/15/EC) and the EU Drivers' Hours rules (3820/85/EC)
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Type of Duty |
EC Working Time Proposal for Mobile Workers (2002/15/EC) |
EC Rules HGV & PSV |
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Maximum working week/duty time |
No limit on duty time as such, but an average weekly working time limit of 48 hrs will apply. 60 hours work can be performed in a single week, if the average 48 hour week (calculated over 4 months) is not exceeded. (1) |
None specified, but minimum daily and weekly rest requirements effectively limit the length of the working week. |
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Maximum working day/duty time |
None specified |
None specified, but daily rest requirement effectively limits the length of the working day. |
|
Maximum work performed at night |
There is a 10 hour limit in each 24 hour period. The RTD includes a derogation which would allow longer periods of work at night, if conditions are met |
None specified but daily rest requirement effectively limits the length of work performed at night. |
|
Cumulative or continuous driving |
None specified |
4 ½ hrs maximum |
|
Daily Driving |
None specified |
9 hrs (but this can be increased to 10 hours twice a week). |
|
Fortnightly driving |
None specified |
90 hrs maximum |
|
Breaks |
If driving, the break periods under EC drivers' hrs rules (Reg. 3820/85) take precedence. For non-driving activities a break is required after 6 hours work. A 30 minute break is required for 6 - 9 hours work and a 45 minute break for over 9 hours work. Breaks can be divided into 15 minute slots. (for examples on the impact of mixed working - see section 5.7 of the main document) |
45 minutes (either continuous or 2 or 3 breaks of no less than 15 minutes). |
|
Daily Rest |
If driving, the daily rest periods under EC drivers' hrs rules (Reg. 3820/85). |
11 hrs (reducible to 9 hrs 3 times a week (any reductions must be compensated for). |
|
Weekly Rest |
If driving, the weekly rest periods under EC drivers' hrs rules (Reg 3820/85), the rest periods therein. |
45 hrs reducible to 36 hrs if taken at base or 24 hrs if taken elsewhere (any reductions must be compensated for). |
(1) This is without prejudice to Article 6 (para 4&5) of 3820/85 - concerning some international coach trips, provided workers concerned do not exceed the average maximum weekly working time of 48 hours over 4 months.
(2) By taking reduced daily rest a driver could extend his 68 hour week to 74 hours, and by postponing the weekly rest until the end of the sixth day or by taking reduced weekly rest, a driver could work over 80 hours in any one week. However, if working beyond 68 hours in any one week, a driver would be required to take additional rest within a set timescale to compensate for the rest that has been lost.
This annex is a response form for you to use, so that you can give your answers to the questions found in the main body of the document. It would also help our analysis of responses if you could answer the questions about your interest in this policy under "Your Details" (although you are under no obligation to do so).
It would greatly ease the analysis of the responses if you use this form and return it to DfT by Friday 23 January 2004. It cannot be guaranteed that responses after this date will be considered.
Replies should be sent to:
"RTD Consultation Exercise"
Dept for Transport
RFOP 5
Zone 2/23 Great Minster House
76 Marsham Street
London SW1P 4DR
Fax: (020) 7944 2928
Or you could e-mail them to workingtime@dft.gsi.gov.uk
Please note:
Your Details:
Name and address:
....................................................................................................................................................................
....................................................................................................................................................................
..............................................................................................................................................................
Nature of business or interest in the policy:
....................................................................................................................................................................
................................................................................................................................................................
(if possible, tick one)
o Hire / reward haulier o Own account operator
o Bus / coach operator o Full time employed driver
o Part time employed driver o Agency driver
o Crew or other employee o self-employed driver
o Union / union rep o Academic
o Legal representative
Other ................................................................................................
Are you prepared to allow your response or name to be quoted, or made available to the public?
o Yes o No (tick one)
Questions posed in the Consultation Document:
Q 1: Are there any other categories of workers we have not identified, who may be affected by the Road Transport Directive?
A 1: o Yes o No (tick one)
Comment....................................................................................................................................................
.................................................................................................................................................................
Q2: Work outside the RTD is included in the average 48 hour weekly limit - what effect will this have? a) What other work outside the scope of the RTD do mobile workers currently perform?
A 2: The effect:
......................................................................................................................
....................................................................................................................................................................
A 2a): Other work performed:
..................................................................................................
..................................................................................................................................................
...................................................................................................................................................................
Q 3: The Regulatory Impact Assessment considers the impact of the RTD on drivers. Do you foresee any significant problems in applying the RTD to other mobile workers?
A 3: o Yes o No (tick one)
Comment....................................................................................................................................................
....................................................................................................................................................................
....................................................................................................................................................................
Q 4: For the UK regulations, we propose to incorporate all the definitions used in the RTD without elaboration. Some points will be clarified in separate guidance (see 3.8). What do you think of this approach? a) Are there any situations that our proposal fails to address?
A4: Our approach:
...................................................................................................................
....................................................................................................................................................................
........................................................................................................................................................
A4 a) Situations not
addressed:...................................................................................................
....................................................................................................................................................................
................................................................................................................................................................
Q 5: What problems (if any) does this definition of the "self-employed driver" create for industry? (see 3.12)
A 5
Comment:...........................................................................................................................................
....................................................................................................................................................................
....................................................................................................................................................................
Q6: Do you agree that "night time" should be defined as a period between 00.00 and 04.00? a) If not, which period should the Government consider and why?
A 6: o Yes o No (tick one)
A 6a) Other period and why?
...................................................................................................................
....................................................................................................................................................................
...................................................................................................................................................................
Q 7: Would you prefer a rolling or fixed reference period for calculating the average 48 hour week (see 4.11)? a) Why?
A 7: o Rolling o Fixed (tick one)
A 7a) Why?
..............................................................................................................................................
....................................................................................................................................................................
....................................................................................................................................................................
.................................................................................................................................................................
Q 8: Which method (if any) of fixing the reference period would you prefer (see 4.11)? a) Why? b) Should a fixed reference period be subject to any conditions?
A 8: o Neither o i) Fixed - calendar o ii) Fixed - individual (tick one)
A 8 a) Why?
.........................................................................................................................................
....................................................................................................................................................................
A 8 b) Subject to any
conditions?..........................................................................................................
....................................................................................................................................................................
....................................................................................................................................................................
Q 9: Should a derogation for extending the reference period (to 6 months) for calculating the average 48 hour week be allowed? (see 6.7)
A 9. o Yes o No (tick one)
Why?
.....................................................................................................................................................
....................................................................................................................................................................
Q10: Should a derogation from the 10 hour limit in Article 7 for night work, be allowed? a) And if so, why? b) Should it be subject to certain conditions (e.g. a 12 hour limit for night workers on condition that drivers take additional breaks and receive additional compensatory rest)?
A10. o Yes o No (tick one)
A10 a) Why?
......................................................................................................................................
....................................................................................................................................................................
...........................................................................................................................................................
A10 b) Subject to these conditions:
......................................................................................................
....................................................................................................................................................................
....................................................................................................................................................................
Q 11: Are you content with the approach we plan to take in enforcing this legislation? a) What changes (if any), would you like to see, and why? Where possible, we propose a similar approach to enforcement that is currently used for other sectors of employment, using VOSA and DVTA (NI) examiners. However, we will review this approach before self-employed drivers are covered in 2009 (see 7.18)
A11. Content? o Yes o No (tick one)
A11 a) Changes I'd
like:.........................................................................................................................
....................................................................................................................................................................
....................................................................................................................................................................
....................................................................................................................................................................
Q 12: Are there any other problems, issues or suggestions you wish to raise about the implementation of the RTD?
....................................................................................................................................................................
....................................................................................................................................................................
....................................................................................................................................................................
....................................................................................................................................................................
The criteria set out below are contained in the Code of Practice on Written Consultation published by Cabinet Office in November 2000. This applies to all UK national public consultations on the basis of a document in electronic or printed form. A full version of the code can be accessed at:
http://www.cabinetoffice.gov.uk/regulation/consultation/code/index.asp
Though they have no legal force, and cannot prevail over statutory or other mandatory external requirements (e.g. under European Community law), the criteria should otherwise generally be regarded as binding on UK departments and their agencies, unless Ministers conclude that exceptional circumstances require a departure.
|
ACPO |
LEX Services Plc |
|
Age Concern |
Local Government Association |
|
Age Concern (NI) |
Local Planning Advisory Committee |
|
Airline Operators' Committee Cargo |
Logistic Support Services |
|
Alliance Small Firms & Self Employed People |
London First |
|
Alliance of Independent Retailers Ltd |
Loughborough University |
|
Amalgamated Transport & General Workers Union |
LSE |
|
ANC Group Ltd |
Magistrates' Association |
|
Association Industrial Road Safety Officers |
Major Contractors Group |
|
Association of British Insurers |
Merseyside Passenger Transport Authority |
|
Association of Independent Businesses |
Merseytravel PTE |
|
Association of Internat. Courier & Express Service |
Metropolitan Police |
|
Association of LA Chief Executives |
National Assembly for Wales |
|
Association of LB Road Safety Officers |
National Centre for Business & Sustainability |
|
Association of Local Authorities N.I. |
National Council for Civil Liberties |
|
Association of Local Authority Bus Managers |
National Express Group |
|
Association of Magistrates' Officers |
National Farmers Union |
|
Association of Port Health Authorities |
National Federation of Bus Users |
|
Association of Vehicle Recovery Operators |
National Freight Consortium PLC |
|
Automobile Association |
National Joint Committee Young HGV Drivers |
|
BP Chemicals LTD |
NEXUS (Tyne & Wear PTE) |
|
BRAKE |
NI Approved Driving Instructors Association |
|
Brit European Transport Ltd |
NI Chamber of Commerce & Industry |
|
British Association of Removers |
NI Chamber of Trade |
|
British Chambers of Commerce |
NI Owner Drivers Association |
|
British Epilepsy Association |
NI Trade Associations Ltd |
|
British Fire Association |
North Staffordshire Chamber |
|
British Industrial Truck Association |
North West Development Agency |
|
British International Freight Association (BIFA) |
Northern Ireland Executive |
|
British Medical Association |
Northern Ireland Transport Holding Company |
|
British Ports Association |
Parliamentary Advisory Council for Transport Safety (PACTS) |
|
British Retail Consortium |
Passenger Transport Executive Group |
|
British Safety Council |
Pedestrian Association |
|
Cambridgeshire Chamber of Commerce |
Planning Inspectorate |
|
CBI Scotland |
Police Federation of England and Wales |
|
CBI Wales |
Private Wagon Federation |
|
CfIT |
Public Transport Consortium |
|
Chambers of Commerce |
Quarry Products Association |
|
Chemical Industries Association |
R. M. Page & Sons Heavy Haulage |
|
Child Accident Prevention Trust |
RAC Foundation for Motoring Ltd |
|
City of Edinburgh Council |
Rail Freight Group |
|
Coach Operators Federation |
National Rail |
|
Combined Transport Limited (CTL) |
Rhys Davies Freight Logistics |
|
Confederation of British Industry |
RMT |
|
Confederation of Passenger Transport UK |
Road Haulage & Distribution Training Council |
|
Confederation of Passenger Transport Wales |
Road Haulage Association Ltd |
|
Consumers Association |
Road Safety Advisory Panel (RS5) |
|
Convention of Scottish Local Authorities |
Road Safety Council of Wales |
|
Crown Prosecution |
Road Transport (Commercial) |
|
Despatch Association |
RoSPA |
|
Disabled Drivers Association |
Royal Automobile Club (RAC) |
|
Disabled Drivers Association NI |
Royal Society for the Promotion of Health |
|
East Midlands Development Agency |
Safety Training Advisory Council |
|
East of England Development Agency |
Safeway Stores plc |
|
English Welsh and Scottish Railway |
ScotRail Railways Ltd |
|
Environmental Transport Association |
Scottish Accident Prevention Council |
|
Equality Forum |
Scottish Chambers of Commerce |
|
ESRC Transport Studies Unit (UCL) |
Scottish Police Federation |
|
European Sea Ports Organisation |
Scottish Road Safety Campaign |
|
Eurotunnel |
Securicor Omega Container Logistics Ltd |
|
Fed. Of Economic Development Authorities |
Society of Motor Manufacturers and Traders |
|
Federation of Petroleum Suppliers |
South West of England Development Agency |
|
Federation of Small Businesses (FSB) |
South Yorkshire PTE |
|
Federation of Small Businesses N.I. |
Stagecoach UK Bus |
|
First Group Plc |
Star Transport and Warehousing Ltd |
|
Ford Motor Ltd |
States of Jersey, Driver & Vehicle Standards |
|
Forum of Private Business |
Strategic Rail Authority |
|
Freight Transport Association |
Strathclyde PTE |
|
Freightliner Limited |
The British Chambers of Commerce |
|
GB Railfreight Ltd |
The Inland Waterways Association |
|
General Executive Council of the TGWU |
The Institute of Traffic Accident Investigators |
|
GMB |
The National Assembly for Wales |
|
Go-Ahead Group plc |
The Reed Boardall Group |
|
Greater Manchester PTE |
Transport 2000 |
|
Green Flag Ltd |
Transport General Workers Union |
|
Guernsey Transport Board |
Transport Research Laboratory |
|
Hampshire County Council |
Transport Salaried Staff Association (TSSA) |
|
Health & Safety Executive |
Transport Studies Group |
|
Imperial College London |
TUC |
|
Institute for Public Policy Research |
Tyne & Wear Passenger Transport Authority |
|
Institute for Transport Studies (Leeds) |
UK Petroleum Industry Association Ltd |
|
Institute of Advanced Motorists |
Union of Independent Companies |
|
Institute of Directors |
Vauxhall Motors UK Ltd |
|
Institute of HGV Driving Instructors |
Walker & Sons (Hauliers Ltd) |
|
Institute of Highways and Transportation |
Welsh Consumer Council |
|
Institute of Logistics and Transport |
Welsh Local Government Association |
|
Interfleet Technology Ltd |
Welsh Transport Strategy Group |
|
International Transport Workers' Federation |
West Midlands LGA |
|
Justices Clerks Society |
West Midlands Passenger Transport Executive |
|
LA Road Safety Officers Association |
West Yorkshire PTE |
