I sometimes am asked to go out delivering with another driver and during that day I won’t be required to drive at all. I just help unload. My card is in Slot 2 and it shows me as being POA. When the driver decides to stop for a break, do I need to put my card on break too as I’ve been sitting down doing nothing under POA for long periods of time (which more than cover times for breaks ie periods of over 15 minutes)? That’s what I have actually been doing ie putting it on break when the driver does. Thanks for reading.
The first 45 mins of poa in slot 2 is counted as a break by DVLA. So as long as you don’t work more than 6 hours without at least one 45 min break (first 45 mins of poa).
Although analysis software may throw up an infringement if its not set up properly saying insufficient break.
Yes for WTD purposes
If I wasn’t going to drive I wouldn’t have my card in at all. I’d do a manual entry next time I’m driving to cover the other work for that day.
simcor:
The first 45 mins of poa in slot 2 is counted as a break by DVLA. So as long as you don’t work more than 6 hours without at least one 45 min break (first 45 mins of poa).Although analysis software may throw up an infringement if its not set up properly saying insufficient break.
Thanks. But I thought the first 45 mins of poa counted as a break when you had been driving for say 4.30 hours and then the other driver took over and you were then on poa. Otherwise, you’re basically taking a break at the beginning of your shift I would have thought?
Mooping:
simcor:
The first 45 mins of poa in slot 2 is counted as a break by DVLA. So as long as you don’t work more than 6 hours without at least one 45 min break (first 45 mins of poa).Although analysis software may throw up an infringement if its not set up properly saying insufficient break.
Thanks. But I thought the first 45 mins of poa counted as a break when you had been driving for say 4.30 hours and then the other driver took over and you were then on poa. Otherwise, you’re basically taking a break at the beginning of your shift I would have thought?
I could be wrong but if they accept the first 45 mins as a break whether you are driving or not shouldn’t make a difference.
Mystery Action:
If I wasn’t going to drive I wouldn’t have my card in at all. I’d do a manual entryu next time I’m driving to cover the other work for that day.
And if stopped that’d cost you £300
Legally your card needs to be in if you’re being carried on the vehicle to drive if it became necessary, it doesn’t matter that there’s no intention to drive
Why not just put them both on break, it’s no hardship!!!
I’d say in that situation 45 mins of poa will count as break anyway and also poa doesn’t count as working time anyway, shift time is irrelevant for the WTD, if you’re not doing more than 6 hours of other work, then no breaks are legally required anyway
stevieboy308:
Why not just put them both on break, it’s no hardship!!!I’d say in that situation 45 mins of poa will count as break anyway and also poa doesn’t count as working time anyway, shift time is irrelevant for the WTD, if you’re not doing more than 6 hours of other work, then no breaks are legally required anyway
I agree it’s not hardship and as I said, I actually did that when the driver was taking his break. I just wasn’t sure if being on POA would cover my requirement for a break. I guess I was interested to know for knowing’s sake. 
I’m sure someone will come along with the definitive answer at some point. I think it’s good to know these things.
stevieboy308:
Mystery Action:
If I wasn’t going to drive I wouldn’t have my card in at all. I’d do a manual entryu next time I’m driving to cover the other work for that day.And if stopped that’d cost you £300
Legally your card needs to be in if you’re being carried on the vehicle to drive if it became necessary, it doesn’t matter that there’s no intention to drive
He specifically says “I won’t be required to drive at all”.
Mystery Action:
stevieboy308:
Mystery Action:
If I wasn’t going to drive I wouldn’t have my card in at all. I’d do a manual entryu next time I’m driving to cover the other work for that day.And if stopped that’d cost you £300
Legally your card needs to be in if you’re being carried on the vehicle to drive if it became necessary, it doesn’t matter that there’s no intention to drive
He specifically says “I won’t be required to drive at all”.
That’s irrelevant, if he’s licenced to drive it and would drive it if it becomes necessary, even if there’s no intention whatsoever, then you have to use your card
stevieboy308:
Mystery Action:
stevieboy308:
Mystery Action:
If I wasn’t going to drive I wouldn’t have my card in at all. I’d do a manual entryu next time I’m driving to cover the other work for that day.And if stopped that’d cost you £300
Legally your card needs to be in if you’re being carried on the vehicle to drive if it became necessary, it doesn’t matter that there’s no intention to drive
He specifically says “I won’t be required to drive at all”.
That’s irrelevant, if he’s licenced to drive it and would drive it if it becomes necessary, even if there’s no intention whatsoever, then you have to use your card
I think you are wrong. You only need to have both cards in if you want to use the double manning concession of 21 hours work in a 30 hour period. If he is in the truck as a porter and it became necessary to drive, although he says it wouldn’t happen, he could put his card in and do a manual entry for the time already worked that day. In that case both drivers would be limited individually to normal regs of 15 hours work in a 24 hour period.
I know I’m right!
Doing it your way you’re leaving yourself open to a £300 fine for failing to use your card.
The question has been asked and answered by the DVSAs policy department
Here is the email sent to DVSA. It’s a little expansion on the truth just to set the scene, so not quite all true
QUOTE
It seems the definition of a ‘driver’ is “any person who drives the vehicle even for a short period, or who is carried in a vehicle as part of his duties to be available for driving if necessary”. The point that interests me is the ‘AVAILABLE FOR DRIVING IF NECESSARY’.
I have a customer that operates ‘bin wagons’ for commercial waste, therefore operating under 561/2006. The vehicles are more often than not crewed by two members of staff. They are both trained and qualified drivers, but when doubled crewed the 2nd man is called the ‘pusher’ and his sole purpose is to push the wheelie bins onto the rear end loader. So – when they travel their route, the passenger is constantly jumping out, loading wheelie bins etc and the driver tends to remain in the drivers seat unless there are particularly heavy bins. They normally operate as ‘pusher’ for the full week, and in most cases the vehicle ‘belongs’ to the driver and he wouldn’t let the 2nd man drive it anyway (they can be very precious about ‘their wagon’).
Initially I had both crew using the tachograph, but this created a real mess with regard to accurate records as they simply could not get the hang of selecting WORK for the 2nd man every time they stopped to load and we’d end up with large portions of POA recorded where it should be work. It doesn’t help that the digital tacho defaults to POA and stays on POA when the vehicle stops.
We tried all sorts to try and resolve it, but it was a mess. We even tried the disciplinary route. I therefore decided that the 2nd man need not insert his card. As far as I see it he is there as a labourer and has no intention of driving. His duties that day do not include driving. Therefore, the driver operates the tacho as normal for himself, but our 2nd man does not insert his card and simply keeps a time sheet for purposes of the RTWTR under which I believe he must still comply. His time sheet records his total work and total break and although travelling in the vehicle would be a POA, we record the period as work.
The crew are instructed that should any major disaster happen and should the 2nd man be forced to take control of the vehicle (driver injury etc) then at that point he would manual enter back to start of shift when he inserted his card. I believe this would ensure compliance as he would have his weekly timesheet with him to satisfy the requirements for ‘other work records’ as required under 561/2006.
However, we now have a new Transport Manager in place (freshly qualified) and although I am responsible for analysing the tacho data and generally advising them as a sub contractor, he has countered my instructions and insists the 2nd man MUST insert his card as he is ‘available for driving’. I have argued that some of the lads haven’t actually driven for months as they prefer the ‘pusher’ job but he insists. My point being they are not there to drive. Yes they are available to drive but their duties do not ordinarily include driving.
As an argument ensued and it got messy, this new Transport Manager telephoned the FTA trainer who trained him for his TM CPC and was told the 2nd man MUST insert his card as he has one and is a qualified driver carried in the vehicle, and it is this that I disagree with.
So, could you shed any light on the matter? I would rather the 2nd man didn’t use the tacho and continued with his written timesheet. Of course, if we knew he would be driving that day, then I agree his card should be inserted at the beginning of the shift and then full tacho usage, but that isn’t how we operate.
END QUOTE
Here is the first reply
QUOTE
I’m afraid I am with the Transport Manager on this.
Whether the driver is precious about the vehicle and would not “allow” anther crew member to drive is not relevant. Whether they have not driven for months again is not relevant. And I will also quote your own words back to you – “Yes they are available to drive”. You also refer to the intention to drive. If the Commission only wanted crew who had the intention to drive on any given day, I can assure you that would have been in the text. Instead they have chosen, quite deliberately, text which provides a much wider application of who the Regulation applies to and that is why the definition includes crew who are available to drive “if necessary”.
No-one is able to predict with 100% accuracy that a crew member will not be required to drive hence why the Regulation includes “if necessary” which takes away the requirement for a crew member to know in advance that they will drive. You have said that crew are expected to take over driving duties when required, such as “should any major disaster happen”, but inserting a driver card only at that point is not acceptable. Manual records are permitted only in limited circumstances which does not include the failure to use the tachograph when it was available for use and should have been used.
The rules cannot be properly enforced if drivers can simply say “oh I didn’t keep proper records that day as I had no intention to drive” and the Commission does consider how the rules can be enforced when drafting regulations. It has to be borne in mind that a driver’s activities on any particular day do not just impact that day, they have an effect for many weeks before and after, for example, calculations for weekly rest periods which must take into account every bit of work carried out (regardless of the type of work or employer – see Article 6(5) of EC 561/2006 and Article 34(5)(ii) of EU 165/2014).
I’m afraid that Enforcement authorities also don’t overlook legal requirements simply because drivers are not making sufficient effort to comply. Traffic Commissioners and courts take a similar dim view of excuses that the driver couldn’t remember to do something so the reasons for wanting them to keep manual records instead carry no weight.
I would also add that under The Road Transport (Working Time) Regulations 2005, people who are carried as crew as are also regarded to be mobile workers and hence are also required to comply with those working time rules instead of The Working Time Regulations 1998. This again means there is no distinction between someone who happens to drive during a shift and someone who happens not to drive during a shift. The 2005 domestic regulations are in place as a direct result of Directive 2002/15/EC (so EC law) and Directive 2002/15/EC is mentioned in the Recitals and in Articles 4 and 6 of EC 561/2006 and in the Recitals and Articles 1, 7 and 34(5) of EU 165/2014. The only reason that we have to have the domestic regulations to implement Directive 2002/15/EC is that, unlike EU Regulations, Directives are not directly applicable so must be adopted in national law to come into effect (although Member States effectively have no choice but to effect directives).
I hope that explains sufficiently how the position is viewed by the Commission and DVSA.
END QUOTE
I then replied as follows
QUOTE
Thank you for your reply, although not necessarily what I wanted to hear!
I just need to clarify a few points if possible. I am not meaning to argue, just trying to get a complete picture to give us options. I have also added a few comments under your comments below.
I do apologise if I seem argumentative, but this is making little sense to me and I want to make sure I understand all options. I have another customer who delivers furniture which involves 2 man crews in 7.5t vehicles. Some of the 2nd men are qualified to drive but don’t wish to, never do and wouldn’t be expected to. They renew their DCPC simply because the company provides the training and allows them to attend, plus it may benefit them if they ever leave to work elsewhere as a driver. They are only C1 via a car test prior to January 1997 holders. Five or six of them haven’t actually driven in years and when asked what their employment is they are ‘warehouse workers’ but they are qualified to drive. If asked to move the vehicle they would refuse. They are called ‘drivers mates’ and the other guy is called the driver. Surely this 2nd man, this ‘drivers mate’ would not and should not be expected to use the recording equipment?
I am just trying to make sure I fully understand this distinction between a driver and someone who could drive but isn’t ‘available’ to drive. As an extreme verging on silly example, a Transport Manager jumps in the cab with a driver just to visit the customer the driver is going to etc. He has a vocational licence, digi card and DQC – are we saying he has to insert his card? Does he become ‘available’ to drive if necessary? Or can we state that his ‘duties’ do not require him to drive?
END QUOTE
To which a I received
QUOTE
These are the questions that should be asked:
- Does the worker hold the relevant category of driving licence for the vehicle?
- Is the worker insured to driver the vehicle?
- Is driving part of their contract of employment?
So anyone who does not answer yes to either or both of 1 & 2 cannot be deemed to be a driver as they could not legally take over driving if necessary.
Anyone who can answer yes to both 1 & 2 then has to then consider what they have been employed to do. If it is explicit in their contract of employment or job description that driving will never be part of their duties then they are on safe ground to say that they are not a driver as driving will never take place. If it is not absolutely clear, or there is something in their contract of employment/job description that says their employer can ask them to carry out any other reasonable tasks (in addition to their normal tasks) then there is the possibility that they may be asked and expected to drive. Clearly it would not be reasonable for an employer to ask someone to drive where it means they would be breaking the law but if they would not be breaking the law then the request could be reasonable.
I would go back to a point in your previous email – if one of the drivers was taken ill and could not drive would the warehouse worker take over?
END QUOTE
I replied once again as follows
QUOTE
Thank you for the prompt reply – much appreciated and yes you have added the clarification I was seeking. It does however puzzle me that this is seemingly based on the fact they MIGHT drive, one day, maybe, perhaps.
Taking myself as an example, I would definitely tell my employer I do not drive, but if some dire circumstances dictated there was nothing else could be done, I’d drive as a one off to the minimum required but I wouldn’t be happy. I am sure my contract of employment may be worded “any other tasks deemed reasonable” – who wouldn’t put that in a contract. I have no intention of ever driving again, yet I maintain my DCPC, Digital Driver Card and Medical requirements as a ‘just in case’ for employment reasons. i.e I might need a job.
So, let’s say an enforcement officer takes action against a person sitting in the passenger seat because their card was not inserted, but the officer knew he had one, even though the person insisted he was not there to drive. Perhaps a check of the card found he drove 2 months ago but not since. I would like to think that if standing in court an argument that a person hasn’t driven for weeks or months, wouldn’t ordinarily be expected to drive and on the day in question their duties did not involve and were not expected to involve driving – that would be a good mitigating defense. I think there is something wrong if not.
END QUOTE
The final reply is, I think, getting a little frustrated with me
QUOTE
I disagree as regards what is a good mitigating defence. The wording in the regulation is specifically to cover people who may occasionally drive “if necessary” and driving 2 months previous clearly shown that driving is undertaken. Anyway such matters are ultimately for the courts to take a view on when we submit such cases. I have stated what DVSA’s position is and unless I receive guidance from a court, DfT or the Commission which changes that then that is what our position shall remain.
I carry out my role in consultation with DfT’s policy and legal advisors and we have a raft of information and people that we access to determine the appropriate application of the rules. I was previously a TE and I can assure I would not just take a passenger’s word for that they were simply a porter. Not being told the truth is a daily occurrence for examiners and it is integral to their job to ask searching questions and not accept at face value the first thing that is said by drivers or crew. If they accept things at face value they will fail to find offending.
END QUOTE
That, in my opinion, is mental.
What if there was a 3 man crew who were all drivers. Where would they all put their cards?
Just demonstrates what us drivers are up against.
Simple answer is if you’re 2nd man is to not carry your licence or card and that takes the if necessary out of the equation. I occasionally go out as 2nd man for a company i drive for regularly on agency. If i am employered that day as a 2nd man and am on 2nd man rate i would not be getting behind the wheel even if necessary
Alternatively, the second man could render himself legally unable to drive the vehicle by starting the shift with a wee dram! 
stevieboy308:
Why not just put them both on break, it’s no hardship!!!I’d say in that situation 45 mins of poa will count as break anyway and also poa doesn’t count as working time anyway, shift time is irrelevant for the WTD, if you’re not doing more than 6 hours of other work, then no breaks are legally required anyway
I think you’ve probably given me the answer here. There are so many gray areas. I’m actually tempted to next time I’m the second man to not put mine on break and see if I receive an infringement. Thanks too for your post about the need for the second man to insert his card into the tacho. Interesting.
Also need to consider how you make an accurate record of your days activities. If your card is in slot 2 the default when the vehicle is moving is POA and can not be changed to other work, at least on the occassions I have done it. If navigating, on the phone to customers etc you are working. The only way to make an accurate record is a manual entry.
Wiretwister:
Also need to consider how you make an accurate record of your days activities. If your card is in slot 2 the default when the vehicle is moving is POA and can not be changed to other work, at least on the occassions I have done it. If navigating, on the phone to customers etc you are working. The only way to make an accurate record is a manual entry.
Nope, the correct way is to have your card in slot 2, which you must do, then do a printout and write on that between X & Y you were on other work and not poa
Mooping:
Otherwise, you’re basically taking a break at the beginning of your shift I would have thought?
You’d have…
To show some other work though as a manual entry before you got into the lorry. 10/15 minutes of other duties getting paperwork, being briefed, drinking coffee talking about Tottenham losing again etc.