RMT Guide to the Road Transport (Working Time) Regulations 2005
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Following an extensive consultation process the Road Transport (Working Time) Regulations 2005 were implemented into UKlaw on 4 April 2005.
This short booklet provides basic information about the main provisions of the new Regulations.
The full text version of the regulations is available on the HMSO website at http://www.hmso.gov.uk/si/si2005/20050639.htm
The accompanying guidance notes are available on the Department for Transport website at www.dft.gov.uk/freight/rtd
Both the regulations and guidance are also available on the RMT website in the Research and Policy - Employment Law section at http://www.rmt.org.uk/
The Government has announced that it will review the operation of the Regulations within 12-18 months of implementation. In addition the TUC General Council has agreed to conduct a review of the Regulations in the autumn of 2005.
The RMT will carefully monitor how the new Regulations are implemented, particularly in relation to Periods of Availability (PoA), and will play a full part in the TUC review.
The definition of what should constitute a Period of Availability is the area which caused the most confusion and argument between the trades unions and the Department of Transport during the course of the consultation period.
The TUC argued for the new Regulations to be introduced without PoAs being included and that if the Government did chose to include them many of the definitions set out in the draft guidance needed to be substantially re-written.
RMT also argued strongly that the definition of PoAs as set out in the Government consultation documents and draft guidance 'gold-plate' the definitions set out in the original EC Directive. We were concerned that unnecessary disputes could occur over what should or should not constitute a PoA leading to poor industrial relations and the potential undermining of existing collective agreements.
Regrettably the Department for Transport has not agreed to our representations and requests.
For RMT to monitor effectively how PoAs are being implemented in practice we will need information from members who work in the bus and road transport sectors and are affected by the Regulations. Please do let us know, via your Branch Secretary, how the new Regulations are being implemented in the workplace.
1. What are the regulations for and who is affected?
The regulations implement EC Directive 2002/15/EC which seeks to improve the health and safety of mobile workers by establishing minimum requirements for drivers, crew and other travelling staff working in vehicles subject to European Drivers' Hours Rules 3820/85/EEC or in some cases the AETR.
Typically the European Drivers' Hours Rules affect all staff who work on vehicles fitted with a tachograph i.e. goods vehicles over 3.5tonnes, coaches and bus services where the route exceeds 50km.
The Regulations do not apply to occasional drivers (see below) or to stage-carriage bus drivers. These workers are covered, where appropriate, either by the European Drivers' Hours Rules, the Domestic Drivers Hours Rules and the Working Time Regulations 1998 (as amended).
The existing rights, under the Working Time Regulations, to a minimum 4 weeks paid annual leave and health checks for night workers continue to apply to mobile workers who will work under the provisions of the new Road Transport (Working Time) Regulations.
Self employed drivers are exempted until 2009. However most agency and own account drivers will be covered by the new Regulations.
2. What are the working time weekly limits?
Working time must not exceed an average of 48 hours a week (excluding breaks and periods of availability) over a 17 week reference period. By a collective agreement with the RMT the reference period can be extended up to a maximum of 26 weeks. There is no individual or collective opt-out from the 48 hour average.
You can work up to 60 hours in any single week (excluding breaks and periods of availability) provided the average 48 hour working week is not exceeded in each reference period.
The maximum limits on driving contained within the European Drivers' Hours Rules will continue to apply. Therefore you can only drive for a maximum of 9 hours a day (this limit can be increased to a maximum of 10 hours driving twice a week).
The maximum number of consecutive days driving is 6 (12 on non-regular international PCV services).
See questions 10 and 11 for information on breaks and rest.
3. What is counted towards the 48 hour average/60 hour maximum?
Under the Regulations working time is not the same as attendance or shift time.
Working time includes;
- Loading and unloading
- Training that is part of normal work
- Assisting passengers on and off the vehicle
- Cleaning and maintaining the vehicle
- Work intended to ensure the safety of the vehicle, its cargo and passengers
- Time where you cannot freely dispose of your time and are required to stay at your workstation ready to take up normal work
- Waiting time where you do not know in advance the foreseeable duration of the wait
Working time does not include the following periods which will not count towards the 48 hour average/60 hour maximum;
- Routine travel between home and your normal place of work
- Rest and meal breaks
- Voluntary work
- Periods of availability (PoA)
4. Periods of availability (PoA)
A Period of Availability does not count towards the 48 hour average/60 hour maximum but is paid time.
For time to qualify as a PoA you must know in advance the foreseeable time that you will be expected to wait at a depot or distribution centre. Time spent as part of a crew not driving or navigating will also count as a PoA.
Typically, a period of availability is time where a worker is not required to remain at their workstation, but must be available to answer calls to start work or resume driving on request. The period and its foreseeable duration should be known in advance by the worker either before departure or just before the start of the period in question.
How PoAs are applied will play a large part in the evidence we submit to the TUC when they review the Regulations. It is important that you let your Branch Secretary know if PoAs are being used to undermine the Regulations and/or to help the employer continue the long-hours culture in the industry.
5. How is the length of the reference period determined?
The RMT and the employer can agree in advance which reference period should be used. If no agreement is reached then the employer can use either Option A or Option B. (see below). Whichever method is used you must be told by the employer in advance how working time is being monitored and when reference periods begin and end.
(A) Option A is a basic fixed calendar option. Reference periods begin at 00.00 on the nearest Monday morning on or after 1 April, 1 August and 1 December each year. This would mean that every year one of the periods is 18 weeks long.
(B) Option B is a rolling reference period. Under this option your average working week should not exceed 48 hours in any consecutive 17 week period (or 26 week period if collectively agreed with the RMT).
(C) Option C provides for some measure of flexibility and will be introduced following a collective agreement with the RMT. Under this option the start date for the reference periods are not fixed as they would be if Option A were to be used. Separate agreements can be used for different groups of workers employed by the same company meaning that the start dates and length of the reference period can vary within the same firm.
6. How is the weekly average calculated?
The average weekly working time is calculated by dividing the number of hours worked (excluding breaks and PoAs) by the number of weeks in the reference period.
For the purposes of the Regulations the working week starts and finishes at 00.00 on Monday morning.
Statutory 4 week annual leave entitlement, sick leave, maternity and paternity leave cannot be used to bring down average weekly working time.
Each week of annual leave taken contributes 48 hours towards the weekly average with each additional annual leave day contributing 8 hours.
7. What if I only occasionally work under the European Drivers' Hours Rules?
The Road Transport (Working Time) Regulations apply mainly to commercial drivers and crew who work under the scope of the European Drivers' Hours Rules. However stage-carriage bus and light-van drivers and non-mobile workers such as mechanics, warehouse staff will occasionally undertake work which falls under the scope of the European Rules.
Under these circumstances you will not be subject to the new Road Transport (Working Time) Regulations if you;
- Work fewer than 11 days within the scope of the European Drivers' Hours regulation in a reference period which is shorter than 26 weeks or;
- Work fewer than 16 days within the scope of the European Drivers' Hours regulation in a reference period which is 26 weeks or longer.
If you do not exceed these limits then the work that you do is subject to the provisions of the Working Time Regulations 1998 (as amended).
However if you do exceed these limits all the work that you do falls under the provisions of the Road Transport (Working Time) Regulations 2005. This includes working as a stage carriage bus driver, working in a warehouse/distribution centre or driving a vehicle which is less than 3.5tonnes in weight.
8. What if I work for more than one employer?
If you work for more than one employer, then the weekly working time is the combined total of the hours worked, excluding breaks, rest periods and periods of availability. You will be required to inform your employer(s), in writing, of any hours worked for another employer.
Voluntary work and activities undertaken as a retained fire-fighter, special constable or as a member of the reserve armed forces does not count towards the weekly average or maximum.
9. Are there limits on working at night?
If you work at night there is a limit of 10 hours work that can be undertaken (excluding breaks and periods of availability) in any 24 hour period. The 10 hour limit can be extended by a collective agreement with the RMT.
The definition of night time is a period between 00.00 and 04.00 for drivers and crew of goods vehicles and 01.00 and 05.00 for drivers and crew of passenger vehicles.
Existing Working Time Regulations allow you to work up to three hours at night before limits on night working kick-in. This is not the case under the Road Transport (Working Time) Regulations. Unless you are an occasional driver any work you do at night will be subject to the 10 hour limit (or to any other limit on night working hours set by collective agreement with the RMT).
10. What do the Regulations say about breaks?
Minimum daily and hourly rest requirements are generally applied to drivers by the European Drivers' Hours Regulations (3820/85/EEC).
After 4.5 hours cumulative or continuous driving a driver must take a break of at least 45 minutes or 2 or 3 breaks of not less than 15 minutes during or immediately after the driving period so that the total break adds up to at least 45 minutes in the 4.5 hours of driving. Rest periods of less than 15 minutes do not count towards the 45 minutes requirement, although the tachograph has to be switched to rest mode.
During a break a driver must not drive or undertake any other work.
There are though additional break requirements under the new Road Transport Regulations where driving is combined with other work. The 2005 Road Transport (Working Time) Regulations 2005 specify that when performing mixed duties (driving and loading/unloading for example) no mobile worker should work more than 6 consecutive hours without taking a break. However when driving, breaks specified under the European Drivers' Hours Rules continue to take precedence.
- If you work between 6 and 9 hours a day breaks of at least 30 minutes in total are required.
- If you work more than 9 hours a day breaks of at least 45 minutes in total are required.
- All breaks should be at least 15 minutes long.
11. What do the Regulations say about rest?
As with breaks the provisions of the European Drivers' Hours Regulations take precedent.
When driving you should take 11 hours consecutive rest in each 24 hour period. This can be reduced to 9 consecutive hours 3 times a week. Any reduction in daily rest has to be compensated for by the end of the following week.
Alternatively you can take 12 hours rest in two or three periods the last of which must be for a period of at least 8 hours.
Under the Road Transport (Working Time) Regulations 2005 the daily rest requirements also apply to other members of the travelling crew.
The European Drivers' Hours Rules also require 45 consecutive hours weekly rest. This can be reduced to 36 or 24 hours (depending when it is taken) provided that it is compensated for within three weeks.
12. Who is responsible for keeping records?
Employers must inform mobile workers of their rights under the regulations and the details of any collective agreement. The employer must retain working time records for 2 years and make them available on request.
13. Who will enforce the regulations?
The Vehicle and Operator Services Agency (VOSA) will enforce the Regulations. Rather than bring proactive VOSA will usually investigate in response to any complaints they receive. However the Authority does have the right to inspect working time records at any time. Examples of when they are likely to do so include;
- When responding to a licensing request
- Investigating a possible breach of European Drivers' Hours Rules
- following a road traffic accident or other serious incident
If you believe that the employer is breaching the rules contact your local RMT rep or your Regional Officer for assistance. The RO will then raise the issue directly with the company or pass the matter on for VOSA to consider.