Changes are afoot as the European Commission proposes to amend the Working Time Directive for Mobile Workers (2002/15/EC) - the Department for Transport consultation will run until 27 February 2009 and anyone may respond. The main items of interest are proposals with regard to 'self-employed' workers and night work.
Self-employed You will recall that when 'working time' was introduced into the road transport sector self-employed mobile workers were excluded until 23 March 2009. The European Commission has now concluded that the imposition of working time on all self-employed mobile workers is in fact unenforceable. At the same time, it wishes to deal with 'false' or 'sham' self-employment - mobile workers in the road transport sector are not self-employed simply because they give themselves that label. ( All business should always be alert to this issue in any event, not least for employment law and tax and national insurance purposes.)
The proposal is therefore to re-define what a 'mobile worker' is. The idea is to make it easy to categorise whether a mobile worker is or is not self-employed. A self-employed driver will mean anyone whose main occupation is to transport passengers or goods by road for hire or reward and who is entitled to work for himself and is not tied to an employer by a contract of employment or by any other type of working hierarchical relationship, who is free to organise their working activities, whose income depends directly on profits and who has the freedom to have commercial relations with several customers.
The UK Government does not believe that truly self-employed workers should be brought under the umbrella of working time, as it is difficult to enforce the rules against them. Interestingly, the Government notes that genuinely drivers will still remain subject to the EU Drivers' Hours Rules, the purpose of which is to prevent tiredness and guaranteed breaks and rest periods - it will be recalled that a major criticism of Working Time has always been that it serves little purpose as EU Drivers' Hours Rules already exist to guarantee that shift times cannot exceed safe hours of work - hence, one might might well query the purpose of Working Time for mobile workers in the road transport sector!
Night Work Limits Currently HGV mobile workers who work between midnight and 04:00 or PSV mobile workers who work between 01:00 and 05:00 are 'night workers' limiting their working time to 10 hours in any 24 hour period, whenever this occurs (though it can be amended by agreement).
The proposal is that mobile workers would not be regarded as night workers unless they worked a minimum of 2 hours during their core 'night' period i.e. shorter periods would be disregarded. This would also align road transport night working with mainstream working time arrangements. The Government concedes that businesses might find record-keeping and compliance with this more cumbersome but it would alleviate the problem of workers simply because they 'dipped into' night work.
Enforcement The European Commission wishes UK and other EU Member States to introduce appropriate working time enforcement systems. The consultation states that VOSA already adopts "a robust enforcement regime towards Working Time". In practice this certainly does not appear to have materialised in terms of prosecutions or disciplinary public inquiries held by Traffic Commissioners. It appears that in reality both VOSA and operators remain primarily concerned with ensuring the EU Driver's Hours Rules are complied with and that still appears to be the real focus of VOSA when looking at drivers' hours compliance at fleet/ operator inspections.
The full proposals and consultation documentation is to be found at www.dft.gov.uk/consultations/open/mobile/consult.
For further queries please contact Tim Ridyard on tim.ridyard@barkergotelee.co.uk or on 01473 617309. www.barkergotelee.co.uk
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Tim Ridyard
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