Road transport: working time regulations overview

This week Sue Nickson, International Head of Employment at Hammonds, begins a series of articles on the forthcoming Road Transport (Working Time) Regulations with a general overview of the new legislation.

Introduction

The Road Transport (Working Time) Regulations are due to come into force shortly to implement Directive 2002/15/EC on the organisation of the working time of persons performing mobile road transport activities. Persons falling into this category have so far been excluded from the existing provisions of the Working Time Regulations 1998 other than those provisions specifically relating to paid annual leave and health assessments. They are already covered by the EU Drivers' Hours Rules (EU Regulation 3820/85) but the new Regulations will introduce limits on weekly working time and specify how much continuous work can be carried out without a break.

The Department of Transport has issued a draft version of the Regulations, available on its website. Consultation on the draft version closed on 12 December 2004 and, subject to any further amendments, the Regulations will come into effect on 4 April 2005.

To whom do the Regulations apply?

The Regulations apply to all mobile workers who work in road transport and are subject to the EU Drivers' Hours Rules. This will typically cover drivers of vehicles fitted with a tachograph, that is goods vehicles over 3.5 tonnes, coaches and inter-urban bus services.

Where a worker only occasionally carries out work subject to the EU Drivers' Hours Rules, he or she will not be covered by the Regulations, but will instead be covered by the Working Time Regulations 1998.

For the purposes of the Regulations 'mobile workers' includes not only drivers but also members of 'travelling staff', that is to say other members of the crew who are travelling in the service of an undertaking that operates road transport services for passengers or the movement of goods. This includes trainees and apprentices.

Examples of non-driving crew members include porters in household removal firms and security staff travelling with high-value goods and cash transportations. Where they remain in use, bus conductors on inter-urban buses will also be covered.

Exclusions

Mobile workers who are not covered by the EU Drivers' Hours Rules such as employed taxi drivers and van drivers are excluded from the Regulations, as are those drivers who are self-employed (until March 2009) or those who only occasionally carry out duties that are covered by the EU Drivers' Hours Rules. Occasional mobile workers are those who carry out work covered by the EU Drivers' Hours Rules for less than 11 days in a 26-week reference period or less than 16 days in a longer reference period. The provisions relating to occasional mobile workers are not directly attributable to the Directive but have been included in the Regulations in response to a concern that subjecting these individuals to the full force of the Regulations might be considered 'unnecessarily disruptive'.

Self-employed

It is important to note that 'self-employed' for the purpose of these Regulations isnot the same as for the purposes of the Employment Rights Act 1996 or the Working Time Regulations 1998. Neither is it the same definition as the one applied by the Inland Revenue.

The definition of 'self-employed' that is to be used in the application of these Regulations centres on the issue of the control that a driver has over his or her work as well as the driver's reliance on the profits for an income. Workers who are restricted from working for other clients or customers would not be considered self-employed and so would be subject to the Regulations in full. Agency workers who are paid at a fixed rate and who have little or no control over the work that they carry out would also fall outside the exclusion.

The effect of the definition is that only a very limited number of drivers will actually fall within this exclusion. Those who are initially excluded as self-employed will become subject to the Regulations by March 2009 in any event.

Weekly working time

The main provisions of the Regulations with regard to weekly working time are as follows.

  • Workers must not work more than an average of 48 hours over the relevant reference period and not exceed 60 hours in any one week.

  • The average weekly working time should be calculated over four months (up to 18 weeks). This can be extended by up to six months (26 weeks) under a relevant agreement.

  • There is no provision for workers to opt out of the restrictions on working hours.

  • Night work is not to exceed 10 hours in any 24-hour period.

  • Daily and weekly rest periods are already provided by the EU Drivers' Hours Rules. The Regulations extend these provisions to mobile workers covered by the Regulations but not covered by the EU Drivers' Hours Rules. The Regulations also introduce new break entitlements, although where the EU Drivers' Hours Rules apply the existing provisions on breaks in those rules will take precedence.

    Working time - what counts?

    The Regulations define 'working time' as 'the time from the beginning to the end of work during which the mobile worker is at his workstation, at the disposal of his employer and exercising his functions or activities', in other words time devoted to all road transport activities, including time spent on:

  • driving;

  • loading and unloading;

  • assisting passengers boarding and disembarking from the vehicle;

  • cleaning and technical maintenance;

  • work intended to ensure the safety of the vehicle, its cargo and passengers; or

  • time spent waiting prior to or after departure where the foreseeable duration of that period is not known in advance.

    The draft guidance on the Regulations indicates that:

  • routine travel between a worker's home and his or her normal place of work;

  • rest and breaks when no work is done;

  • periods of availability (see below);

  • evening classes or day-release courses; and

  • voluntary work and activities outside the definition of working time, eg working part time as a Retained Fire Fighter, Special Constable or member of the Reserve Forces,

    are not within the definition of working time for these purposes.

    Periods of availability

    In simple terms, periods of availability, which are not working time under the Regulations, are those periods of waiting where the mobile worker is aware of the duration of that period in advance either before departure or just before the start of the period in question. In addition, for a period to be treated as a period of availability and thus be outside working time, the mobile worker should not be required to remain at his of her workstation during the period, although he or she must be available to answer calls to start work or resume driving on request.

    Periods of availability will include periods during which a mobile worker is accompanying a vehicle being transported by a ferry or a train as well as periods of waiting at frontiers and those due to traffic prohibitions.

    The periods of availability exclusion may also come into play where there are delays that directly affect a mobile worker's ability to carry out his or her duties. However, the mobile worker must be aware of the length of the delay, whether that is because the worker knows that he or she has arrived early for a specified loading or departure time or because he or she is told directly. However, if the driver is led to expect a one-hour delay and it turns out to be two or three hours, the second and third hour will fall within the definition of working time because once the first hour was up the driver was no longer aware directly or indirectly of the foreseeable duration of the wait. The key here is for an employer to keep drivers up to date if it does not want time spent waiting for delays, etc to eat into the weekly working limit.

    Next week's article will look at the new rules on night work and rest breaks.

    Sue Nickson is International Head of Employment at Hammonds (Sue.Nickson@Hammonds.com)

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