t is of concern how many operators, unknowingly, fall short of the expectations of the Courts and Traffic Commissioners alike in undertaking their obligations to operate in accordance with the EC Drivers’ Hours and Tachograph Regulations and the Road Transport (Working Time) Directive.
As well as the undertakings given when obtaining an operator’s licence, there are also liabilities of undertakings for the operator within EC Regulation 561/2006 Article 10, which in part states:
“2. A transport undertaking shall organise the work of drivers referred to in paragraph 1 in such a way that the drivers are able to comply with Regulation (EEC) No 3821/85 and Chapter II of this regulation. The transport undertaking shall properly instruct the driver and shall make regular checks to ensure that Regulation (EEC) No 3821/85 and Chapter II of this regulation are complied with.”
These are broad statements and give no specific guidance as to what, for example, a “regular” check actually constitutes.
However, there is an indication of what the Traffic Commissioners expect from operators and their undertakings in the outcome of a Transport Tribunal in the matter of Alison Jones L56, where it concludes: “In our view, the statutory undertaking requires more than to set up adequate systems and then leave them to run themselves. What is required is constant supervision and monitoring to ensure that the systems work. In other words, I direct myself to the efficacy of the system to detect drivers’ hours and tachograph offences and the resulting action taken as a consequence of such findings.”
Although this statement does not give the actual methods of how to comply with the statutory undertakings, it does indicate that the onus is clearly placed upon the operator, to both detect the offences and then resolve the problem. Operators must, therefore, be proactive, not reactive.
Ensuring legal compliance
What should an operator be doing to ensure legal compliance? It is not sufficient for an operator to simply analyse the driver’s record, whether analogue or digital; a system must be complete and analysis is just one part.
Furthermore, merely having systems do not provide a defence; any systems must be effective to ensure compliance.
In addition to the operator, other members of staff (e.g. management, supervisors, traffic planners and office staff) may have a role in the operation to schedule work. In so doing, they have a legal obligation to organise drivers’ work so they can comply with the regulations and ensure that the drivers are properly instructed.
Therefore, any person within the organisation who has a role in planning a driver’s work schedule, either daily or as a one-off (i.e. in an emergency), must understand the law and schedule the working day legally.
It is important to note that operators cannot allow a driver to schedule his or her own work. Operators must, therefore, train the office staff in the law they will apply when scheduling the work, and also have an ongoing training programme in place to ensure that any changes to the law or interpretation are taken into account.
In summary, when reviewing the scheduling role, a company should have systems in place to:
- assess the individual’s knowledge and take corrective action should weaknesses be found
- provide appropriate training
- provide ongoing retraining and assessment
- review drivers’ offences for any weakness in the scheduling and control undertake disciplinary processes and/or re-education/training where appropriate.
The operator must have proper control over the drivers’ working time and must instruct them so as to ensure compliance. Drivers, for their part, must have a full working knowledge of the legislation and, therefore, the first obligation for a reputable operator must be for the proper assessment of a driver’s knowledge in order to determine areas of weakness.
Best practice should dictate that assessments are undertaken before any driver works for an operator and that any appropriate training/induction is given in the regulations, not just the company processes. Failure to identify any weaknesses in a driver’s knowledge that subsequently leads to offences will mean that the system is not sufficiently robust.
Timetables should also be put in place to ensure that all drivers undergo regular retraining.
If drivers are committing offences, it is essential that corrective action is put in place; whether this is retraining and/or written advice, where appropriate, or disciplinary action. Failure to have an appropriate disciplinary process allows a driver to continue offending and, as such, an obligation to prevent a repetition of the offence is not adhered to.
Therefore, when starting employment, drivers should adhere to the following processes that should be in place.
- Assessment of knowledge of regulations and identification of weaknesses before employment.
- All drivers should be trained.
- The operator must show control of drivers’ hours worked and driven.
- Records of all training and assessments should be documented.
- A full and proper process should be in place to ensure retraining, written advice and, where necessary, disciplinary action is taken. Operators must ensure that, with any disciplinary action, all procedures meet the requirements of employment law.
Gordon Humphreys of Foster Tachographs Limited takes a look at what has been described as the “gold standard” of systems (Transport Tribunal 2009/215) that should be considered by a reputable operator when looking at their own procedures.
It is necessary for operators to undertake the following.
1. Determine the types of tachograph in the fleet of vehicles to ensure that the correct type of chart (analogue) or digital roll is issued.
2. Ensure that there is sufficient stock.
3. Establish which drivers have driven on which dates and also, where applicable, which vehicle was driven, to identify any records missing.
4. Have a chart issue/return process.
5. Record drivers’ downloads of the digital cards to ensure that they do not exceed the legal limit.
6. Ensure that all manual records are made by the drivers in accordance with the law and that appropriate print-outs are taken.
7. Take measures to prevent a repetition of the offence.
8. Ensure vehicle units are downloaded at regular intervals and at least every 56 days.
9. Ensure that there is no missing mileage for the analogue records.
10. Ensure all digital files are stored as secure raw data in order that they are available for any investigating authority.
11. Keep all records for a minimum period of at least 12 months, if being used for compliance with EC Drivers’ Hours and Tachograph Regulations, or two years if being used for compliance with the Road Transport (Working Time) Regulations.
Chart analysis and reports
1. Whether undertaken internally or externally, an analyst must be trained to analyse the records accurately and be able to interpret the record in conjunction with other data and records.
2. The operator should set out clear specifications of its expectations and standards for analysis.
3. Other aspects when considering the level of analysis service should be:
- analysis intervals
- turn-around time
- percentage of records analysed against the type of operation and risk (although 100% is the safest route)
- the accuracy of the analysis.
4. On receipt of reports, the operator should review and have systems in place for the presentation of offences to the driver.
- Offences should be reviewed by an appropriate individual before presenting this to the driver. It is not sufficient to know there is an offence, but why the offence has been committed.
- All offences should be presented to the driver personally.
- Drivers and managers should sign to acknowledge that the offences have been explained to them, making notes of any comments made by either party.
- Corrective procedures to ensure that the drivers do not continue to repeat offences, including, but not exclusively:
- re-education/training courses
- educational literature
- a disciplinary process that will result in dismissal if the driver does not ultimately meet the required standard.
5. Operators may also consider other documentation to compare against the tachograph records, e.g. driver’s timesheet, fuel receipts.
6. It is essential that vehicle reports are also reviewed as these are a major key to compliance. Where anomalies occur, or exceptions are identified, these must be investigated
This is just a brief summary of some parts of a tachograph compliance system; the system needs to be auditable, but operators should ensure that an audit is undertaken by an appropriately qualified person. Poor auditing will not offer protection from or in a public inquiry.
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