Following an initial consultation in January 2004 the Department for Transport issued on 1 November 2004 draft regulations and draft formal guidance on the Road Transport (Working Time) Regulations which were introduced into UK law on 23 March 2005.
What are the regulations for and who is affected?
The regulations implement EC Directive 2002/15/EC which seeks to establish minimum requirements for drivers and crew of HGVs and PSVs who are subject to EU drivers' hours rules (3820/85). The Directive is designed to improve health and safety protection for health and safety for mobile workers and thereby improve road safety. The EU Drivers hours' rules affect workers who operate vehicles which are fitted with a tachograph i.e. goods vehicles over 3.5tonnes, coaches and inter-urban buses. The Regulations do not apply to stage-carriage drivers.
Self-employed drivers will not be affected until 2009. Mobile workers not affected by the proposed regulations are covered by existing working time regulations.
Two important changes have been made to the draft regulations following the January 2004 consultation;
1.Mobile workers who work fewer than 11 days within the scope of EU Drivers' rules in a reference period that is shorter than 26 weeks will not now fall under the scope of the regulations. This is an issue of some concern because it means that workers could be asked to undertake significant amounts of driving time without receiving the protections offered by new regulations in relation to breaks and rest periods.
2. The Department has previously intended that mobile workers would have to inform their employer about all work undertaken for all other employers irrespective of the sector in which the work was carried out. Mobile workers will only have to inform their employer if they undertake any other work in the transport sector.
- An average 48 hour week over a 4 month reference period. There is no opt-out from the 48 hour average. The reference period can be extended to 6 months by an agreement negotiated with the union.
- A maximum 60 hours work in any single week provided the average 48 hour week is not exceeded in each reference period. The working week starts and finishes at 00.00 on Monday morning.
- A limit of 10 hours in any 24 hour period if working at night .The 10 hour limit can be extended by an agreement negotiated with the union. For example an agreement could be signed which would allow 4 x 12 hour shifts.
- Employers must retain working time records for 2 years.
- The Vehicle and Operators Service Agency (VOSA) will enforce the regulations
Working time and periods of availability
This area has created considerable confusion and the draft regulations and guidelines do not clarify issues in the way we would have hoped. However what is clear is that under the proposed regulations working-time is not the same as shift or roster time. It is a definition given to activities which count towards calculating the 48 hour average and 60 hour maximum.
The draft regulations propose that working time includes;
- Loading and unloading
- Training which is part of normal work and commercial operations
- Cleaning and maintaining the vehicle
- Work intended to ensure the safety of the vehicle, its cargo and passengers e.g. monitoring loading and unloading
- Time during which a worker cannot dispose freely of their time and is required to be at the workstation ready to take up normal work.
Working time does not include;
- Travelling between home and work
- Lunch breaks (whether paid or unpaid)
- Other breaks (whether paid or unpaid)
- Evening classes or day release course
- Periods of availability
Periods of availability
Periods of Availability (PoA) are paid time but do not count towards the 48 average working week or the 60 hour a week maximum. The draft regulations indicate that for time to be categorised as a PoA it should meet the following criteria;
- A mobile worker must not be required to remain at his workstation
- (but) he must be available to answer calls to start work or resume driving on request; and
- the period and the reasonably foreseeable duration should be known in advance either before departure or just before the start of the period in question
The EC directive which the Road Transport Working Regulations will implement lists examples of PoAs which include accompanying a vehicle on a ferry or train or periods waiting at frontiers. However the directive also indicates that even where a worker knows about the foreseeable duration of a delay conditions negotiated between the employer and a trade union can take precedent.
The Government is consulting on the regulations and guidelines. They propose a very broad definition of what should constitute a PoA. If adopted into law these definitions will mean that RMT members could continue to work excessive hours; a situation which the regulations are being specifically introduced to avoid.
In our submission the RMT will firmly oppose the Government's framework which 'gold-plates' the requirements laid out in the Directive. We made clear in our initial contribution in January 2003 that time spent at distribution centres waiting to load and unload should be regarded as working time and not as a PoA. We will re-iterate this view and also point out that is unreasonable to suggest, as the draft guidelines do, that time spent waiting for a broken down vehicle to be rescued should be categorised as a PoA if the crew have been informed of length of time they will have to wait.
Weekly working time limits
- Workers cannot work more than an average 48 hour week or more than 60 hours in any one week. There is no individual opt out from the 48 hour average
- The average working week is calculated over a 4 month (a 17 or18 week) reference period. The period can be extended up to 6 months (26 weeks) by an agreement negotiated with the RMT.
- Employers and employees must agree in advance if the relevant reference period will be fixed or rolling and if fixed when the periods should start and end. If there is a failure to agree a default fixed reference period will apply.
- The guidelines state that it is possible for annual leave to be used to reduce average working time if the annual leave in question is not part of the statutory 4 weeks specified in the Working Time Regulations. This is an area of concern for the RMT and requires clarification from Government on how this may impact in relation to the calculation of the 48 hour average.
Working at night
- Night-time is defined as between midnight and 4am for goods vehicles and 1am and 5am for passenger vehicles.
- Working time should not exceed 10 hours in any 24 hour period if any night work is undertaken. The 10 hour limit can only be exceeded where an agreement is negotiated with the union however break and rest periods provided for in the EU Drivers' hours rules will still apply. Night workers will also still be eligible for health checks as defined under existing Working Time Regulations
Rest and breaks
Break requirements under the EU Drivers Hours rules take precedent when driving.
- When driving EU Drivers Hours rules require 11 hours consecutive rest in each 24 period. This can be reduced to 9 consecutive hours three times a week which must be compensated for by the end of the following week. Alternatively 12 hours rest may be taken in two or three periods that last of which must be at least 8 consecutive hours
- The minimum daily rest limits which apply to drivers under existing EU rules will be extended to cover the other members of the travelling crew.
- Existing EU Drivers' hours rules require 45 hours consecutive weekly rest. This can be reduced to 36 or 24 hours (depending where it is taken) provided that any reduction is compensated for within three weeks.
- Existing EU Drivers Hours rules require a break of 45 minutes after 4 ½ hours cumulative or consecutive driving (or 2 or 3 breaks of 15 minutes during or immediately after the driving period.
- When driving is mixed with other duties additional breaks have to be taken
- A break of 30 minutes is required if working time (both driving and non-driving) is more than 6 and less than 9 hours
- A break of 45 minutes if working time (both driving and non-driving) is more than 9 hours. The break(s) should be taken during the 9 hour period
- Breaks can be split into 15 minute periods and can be taken at the workstation
- Breaks do not count towards working time limits
- The employer must keep working time records for two years
- Records should be provided on request to the worker concerned and the enforcement agency
- The employer must inform employees of their rights under the regulations and details of any agreements that have been negotiated with the union.
- The employer must notify their workers in writing that they need to provide an account, also in writing, of working time undertaken for another transport employer
Next year's pay and conditions negotiations will take place in the context of the changes that the new regulations will introduce.
Working hours will be reduced across the industry and current estimates are that between 12,000 and 45,000 additional drivers will have to be recruited across the UK.
One thing is clear, the RMT will not allow employers who will have a legal obligation under the Regulations to reduce drivers' hours to exploit loopholes in the legislation or to cut the living standard of our members.