Road Legal

All the details about CM's legal seminars

18 October 2007

Over the past six weeks Commercial Motor, with the support of ATS Euromaster, has staged a series of nationwide free legal seminars. For those readers who were unable to attend, here's a summary of the main points. There's always been tension in the industry between getting the job done profitably and complying with the huge mass of road transport legislation, which seems to lie in wait to trip you up at every opportunity. It's the key role of any professional transport manager to ensure they tread this line, satisfying the needs of the business while ensuring the vehicles stay fully within the law.

The Traffic Commissioner as the regulatory authority in the sector is responsible for the latter, of course, and Deputy Traffic Commissioner Richard McFarlane at the Scottish seminar, the first in our series, reminded delegates of their obligations under the O-licensing system. Every person applying for an O-licence signs up to a series of undertakings, he said: "The object of this is to ensure that vehicles operated by haulage and bus operators are at all times being used on our public roads in the best of condition, are not overloaded and are operated with in the speed limits. They also strive to ensure that the drivers are in good shape and the likelihood of drivers driving while tired is reduced if not eliminated.

"It is clear when I go over these undertakings with the licence holder at public inquiry that the undertakings have either not been read, not been understood, simply forgotten about or ignored - or in the worst case scenario, blatantly disregarded." All the Traffic Commissioners at the seminars - four out of the five events had TCs in attendance - echoed a similar theme, and it became apparent that the regulators, and to some extent Vosa, are looking for the management side of transport to up its game considerably. Clearly there are companies already ahead of the field in this respect, but industry-wide there is a need for better management practices.

There were a number of "the same old issues" coming up before the TCs at inquiry, such as drivers' hours, overloading and maintenance issues, but as we've been reporting over the past few weeks, the TCs took the opportunity to send out a clear message to operators on three main areas - the use of handheld mobile phones while driving, the use of foreign drivers, and the education and regulation of maintenance contractors.

All the TCs were extremely animated about vocational drivers - ie truck and bus drivers - using mobile phones while at the wheel. There is clear evidence that using a handheld mobile phone while driving is a threat to road safety, the new Western TC Sarah Bell told delegates in Bristol. "The police are increasingly informing us or the Vosa regional intelligence unit when this offence is being committed, and we will take regulatory action. As a starting point this will usually mean a 14-day revocation of the driving licence."

Regarding the use of foreign truck drivers, Beverley Bell, North-Western TC, was quick to point out that operators had to be aware of their obligations to ensure they were fit to drive. "Operators must be able to ensure the drivers are able to understand the Highway Code and follow the rules of the road," she explained to delegates at our Haydock event.

Philip Brown, Senior TC and the TC for the South-East and Metropolitan regions, explained how he had been working with the Freight Transport Association to deliver a series of similar seminars to third-party repairers. The aim, he said, was to make it clear they had a responsibility to the industry regarding maintenance. "The obligation still resides with the operators, of course," he said. "Operators need to ensure their repairer is carrying out the work according to the maintenance contract. If the contractor isn't performing, then operators have to look to ensure they put the measures in place to rectify the situation." Other TCs outlined how maintenance contractors would be named at public inquiry if they were judged to have let the industry down.

Law on the way

We enlisted the services of leading transport solicitor Backhouse Jones for our series of seminars, with James Backhouse, Andrew Woolfall and Barry Prior making presentations throughout. Here are the key pieces of legislation due to hit the industry in the next 12 months.

Increased holidays

Changes to statutory holiday entitlement is the most immediate piece of regulation to affect the industry, with paid holiday increased to 4.8 weeks per year from October 2007. This will then increase further to 5.6 weeks from April 2009. Typically, for an employee working a five-day week this will mean 24 days' paid holiday. James Backhouse reminded delegates that paid holiday should be based on average salary, not basic pay, and that bank holidays could be included in the entitlement.

Graduated fixed penalties

The new system for dealing with roadside offences is due to come into force late this year, although it seems more likely this will not happen until early next year now. As the name suggests, the penalties will be graduated depending on the severity of the offence. Backhouse urged operators to ensure drivers informed them if they were issued with a penalty. They did have a right to contest the penalty moreover, if an operator were to amass a lot of penalty points indirectly through its drivers, it would probably be called to public inquiry.

Corporate manslaughter

This piece of legislation, while receiving a lot of media attention, had been diluted considerably from the initial draft legislation, Backhouse explained. Nevertheless, it would still have an effect from its introduction in April 2008. "An organisation is guilty of an offence if the way in which its activities are managed or organised causes a person's death and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased," Backhouse explained.

There is no longer any individual liability in the regulation, although fines against the organisation are expected to be sufficiently high to have an impact on the business.

Driver CPC

The next big piece of legislation on the horizon is due to take effect from September 2009. The key points are the introduction of an additional qualification for new drivers and a requirement for 35 hours' approved training for all drivers every five years. A qualification card is introduced along with a requirement to carry it. New offences of driving without CPC, failure to carry the card and permitting a driver to drive without CPC entitlement will be created.

EC drivers' hours rules

This piece of legislation is already in place, of course, but delegates were reminded that from 1 January 2008 drivers needed to carry information for the previous 28 days - an increase from the present 15 days - of activity.

London low-emission zone

The LEZ will be phased in from 4 February 2008 it is to target vehicle exhaust emissions, with non-compliant vehicles having to pay a daily charge of £200 maximum.

Health and safety

Over the past five years ATS Euromaster has embedded health and safety best practice into the heart of its operation. For an organisation that expects many of its employees to work at the roadside and/or in a busy environment around moving vehicles, this is sensible business practice.

ATS Euromaster corporate affairs director Leon Atkins and group health and safety manager Gareth Davies presented delegates with relevant health and safety top tips and insights into the activities of the company. "Health and safety law requires employers and the self-employed to ensure, so far as is reasonably practicable, the health, safety and welfare of all employees at all times," said Atkins, citing the Health and Safety at Work Act 1974. "You also have a responsibility to ensure others are not put at risk by the work activities of your employees."

The key elements of health and safety are to ensure the risks are assessed, to put in place a system to manage and monitor those risks, and to review the risk assessment periodically to ensure it remains valid.

Both Atkins and Davies outlined the policy put in place by ATS Euromaster specifically covering driving and the duty of care. "We have a company, DriveTech, which manages our Safe2Drive Programme covering the car and van drivers in our business," Davies explained. "It carries out regular driver licence checks and driver assessment and then, when required, manages the driver training. We've seen a drop in our accident rates and insurance premiums as a result of this activity."

Attendee comments

Edward Pargeter, managing director at EP Training Services, says he came to the seminar to find out more about the legislation around CPCs and O-licences. "My company is involved in providing courses for the CPC and I have found the seminar very informative. I can now check that all of our training procedures are up to date."
Graham Wood, south-east commercial auditor at SITA, says his manager booked him in for the seminar. "All the things that came up in the seminar are things I deal with on a day-to-day basis, so it was particularly useful for me to hear the updates on the legislation. "I hadn't thought about the duty of care, and the legal issues around the CPC are interesting. It was handy to clear up when existing licence holders need to get the CPC."
David Pink, managing director at Dodd's Group, says the operator currently conducts six-monthly licence checks on drivers and he was interested to hear that perhaps this should be changed to three months. However he says he is still unclear about the driver CPC card and exactly when drivers will need the card and the training. "It all seems very unclear."