The requirement to not being tied to one company relates to being self-employed for Income Tax purposes.
Self-employed drivers
Self-employed drivers (as defined under these regulations) are excluded from all the requirements until March 2009. However the definition of self-employed driver under the Road Transport (Working Time) Regulations has been tightly drawn and is not the same as the definitions under the Employment Rights Act 1996, or under the Working Time Regulations 1998. Nor is the test the same as applied by the Inland Revenue.
Only a limited number of drivers are likely to be excluded from the scope of the regulations in March 2005. Drivers, who do not satisfy the criteria for being self-employed under these regulations, will (along with employees) be subject to them from March 2005.
“Self-employed shall mean anyone whose main occupation is to transport passengers or goods by road for hire or reward within the meaning of Community legislation under cover of a Community licence or any other professional authorisation to carry out such transport, who is entitled to work for himself and who is not tied to an employer by an employment contract or by any other type of working hierarchical relationship, who is free to organise the relevant working activities, whose income depends directly on the profits made and who has the freedom to, individually or through a co-operation between self-employed drivers, have commercial relations with several customers”.
The amount of control that the driver has over their work is a key point, as is their reliance on profits to provide them with an income. For example, if the worker is restricted (either implicitly or explicitly) from working for another client / customer, then they would be covered by all the requirements of these regulations. In addition, most agency workers would not count as self-employed because they are normally paid at a fixed rate. Once they accept a job, an agency worker is not free to organise their working activities.
Therefore, it seems the main questions to ask yourself are:
- Are you subject of a working hierarchical relationship? In other words, will there be someone telling you what and when to do something.
- Are you free to organise the relevant working activities yourself?
- Does your income depend directly on the profits made….(as opposed to hours worked/trips/etc.) and do you have commercial relations with (various) customers.
If the answer to any is “No”, then you do not appear to qualify as Self-employed under these regulations.
However, if, as you say, the nature of the work was seasonal then your employer could take advantage of
(4) The reference period may be extended in relation to particular mobile workers or groups of mobile workers for objective or technical reasons or reasons concerning the organisation of work, by a collective agreement or a workforce agreement, by the substitution for 17 weeks of a period not exceeding 26 weeks in the application of paragraphs (2) and (3)(a) above.
By formulating a Workplace Agreement. I can certainly anticipate that the Gas and Fuels sector, with their seasonal fluctuations will adopt this provision with their 26 weeks commencing in the region of 1 February and 1 August.
What is not clear is that, once you have in place a Workplace Agreement with one (main) employer, and you then occasionally work for another employer, working a 17 week pattern, is whether your hours need to comply with BOTH patterns or merely the principle pattern.
Being self-employed for taxation purposes could put you in a stronger position for arguing that, having entered into an agreement with the main employer, any other work undertaken would be counted towards the 26 week pattern previously agreed, and not subject to the 17 week system existing at any supplemental workplace.
