DVSA Publish New Drivers Hours Guidance

UK PROFESSIONAL DRIVERS FORUMS THE UK PROFESSIONAL DRIVERS FORUM (INTERACTIVE)
41

Is this a change or am I reading it wrong :question:
I was under the impression that the 9 daily rest when MM counted as regular daily rest …

Mutli manning
Organising drivers’ duties in such a fashion enables a crew’s duties to be spread over 21 hours however where a driver utilises the multi-manning daily rest concession (of 9 hours rest in a 30 hour period) that rest period cannot be counted as a regular daily rest as it is of less than 11 hours duration. These rest periods therefore count towards the limit of 3 reduced rest periods between any 2 consecutive weekly rest periods.

eur-lex.europa.eu/legal-content/ … 32006R0561
Article 8
5. By way of derogation from paragraph 2, within 30 hours of the end of a daily or weekly rest period, a driver engaged in multi-manning must have taken a new daily rest period of at least nine hours.

8.5 does not say it is a reduced …

42

tachograph:

Rjan:
1.7, travel to a temporary workplace is working time. For temps, agency workers, and contractors, wonder how that interacts with the Tyco case at the ECJ, stating that travelling time spent commuting to a temporary workplace is working time?

This rule hasn’t changed at-all, it doesn’t say anything about travelling to a temporary workplace being working time, travelling to take charge of a vehicle that’s not at the operators centre or the drivers home cannot be counted as rest or break, that’s the way it’s been for years.

The case you’ve mentioned has been discussed before and has nothing to do with the way agency workers travel to or from work.
viewtopic.php?f=2&t=130078

That makes sense. I don’t understand why people would do this for free.

When I had to book in at base the travel to where the vehicle was subbed I did my manual entries from when I got to the base. Not putting wear on my car for nothing (tight ■■■■■■■■ wouldn’t lend me the van after a bit).

43

So, just out of curiosity,
,

  1. has anyone worked out yet What/If the physical changes actually are :question:
  2. What impact does it have on a persons working day/week/month/working period :question:
  3. Would they care to highlight the changes and the new reg`s and publish them in this thread please :question:
44

Vid:
Sack the proof reader(s)!

1.3 2 week driving limit includes 20 hours diving!!! Too cold at this time of year!!!

■■■■ or fluff up ? :grimacing:

45

Just found this on the government website: 3.2. Other duty limits
GB domestic limit (ie no more than 11 hours on duty) must always be obeyed. But when working under EU/ AETR rules you must also obey all the rules on breaks, daily rest (only on those days when actually driving) and weekly rest.

Does this mean we can’t work up to 15 hours as the Brusselian (or is that Orwellian? :unamused:) overlords dictate? I for one will probably ignore it in favour of getting back home instead of sleeping in a dirty tin box, but it’s interesting nonetheless.

Also: In addition, you are affected by two provisions under the Working Time Regulations 1998 (as amended – ‘the 1998 Regulations’). These are:

an entitlement to 5.6 weeks’ paid annual leave
health checks for night workers

Hilarious reading. Going to look forward to the legal war this might cause. I for one will be on to the agency, being PAYE and such. :grimacing:

46

ROG:
Mutli manning
Organising drivers’ duties in such a fashion enables a crew’s duties to be spread over 21 hours however where a driver utilises the multi-manning daily rest concession (of 9 hours rest in a 30 hour period) that rest period cannot be counted as a regular daily rest as it is of less than 11 hours duration. These rest periods therefore count towards the limit of 3 reduced rest periods between any 2 consecutive weekly rest periods..

Looks like the DVSA have decided that the 9 hour rest is going to count as a reduced daily rest period in future.

47

# Point worth noting #

1.8. Unforeseen events
Provided that road safety is not jeopardised, and to enable a driver to reach a suitable stopping place, a departure from the EU rules may be permitted to the extent necessary to ensure the safety of persons, the vehicle or its load.
Drivers must note all the reasons for doing so on the back of their tachograph record sheets (if using an analogue tachograph) or on a printout or temporary sheet (if using a digital tachograph) at the latest on reaching the suitable stopping place (see relevant sections covering manual entries).
Repeated and regular occurrences, however, might indicate to enforcement officers that employers were not in fact scheduling work to enable compliance with the applicable rules.

A judgment by the European Court of Justice dated 9 November 1995 provides a useful guide to how this provision should be interpreted. It can apply only in cases where it unexpectedly becomes impossible to comply with the rules on drivers’ hours during the course of a journey. In other words, planned breaches of the rules are not allowed.
This means that when an unforeseen event occurs, it would be for the driver to decide whether it was necessary to depart from the rules. In doing so, a driver would have to take into account the need to ensure road safety in the process (eg when driving a vehicle carrying an abnormal load under the Special Types regulations) and any instruction that may be given by an enforcement officer (eg when under police ■■■■■■).
.
Some examples of such events are delays caused by severe weather, road traffic accidents, mechanical breakdowns, interruptions of ferry services and any event that causes or is likely to cause danger to the life or health of people or animals.
Note that this concession only allows for drivers to reach a suitable stopping place, not necessarily to complete their planned journey. Drivers and operators would be expected to reschedule any disrupted work to remain in compliance with the EU rules.

48

htmldude:
Just found this on the government website: 3.2. Other duty limits
GB domestic limit (ie no more than 11 hours on duty) must always be obeyed. But when working under EU/ AETR rules you must also obey all the rules on breaks, daily rest (only on those days when actually driving) and weekly rest.

Does this mean we can’t work up to 15 hours as the Brusselian (or is that Orwellian? :unamused:) overlords dictate? I for one will probably ignore it in favour of getting back home instead of sleeping in a dirty tin box, but it’s interesting nonetheless.

You’re referring to the rules when mixing domestic regulations and EU regulations on the same day, both sets of regulations have always had to be complied with so that hasn’t changed at-all.

htmldude:
Also: In addition, you are affected by two provisions under the Working Time Regulations 1998 (as amended – ‘the 1998 Regulations’). These are:

an entitlement to 5.6 weeks’ paid annual leave
health checks for night workers

Again there’s no change, in the UK we’ve been entitled to 5.6 weeks holiday a year for a few years now, health checks are for night workers have also been written into the working time regulations for a few years.

49

Apart from the little gem that Rog has pointed out (well spotted Rog) - which definitely needs further clarification - there doesn’t seem to be anything else that has changed.

All this discussion regarding places of work and commuting seems pointless as nothing has changed in relation to that. An agency driver is considered to be going to his regular place of work if the vehicle he is taking over is at its operating centre. Things only change if the vehicle is not at the operating centre where it belongs … and the EU Rules have always said the commute to or from a vehicle not at the operating centre or drivers regular place of work must be recorded and cannot be recorded as rest or break. This has been the case for years.

50

shep532:
Apart from the little gem that Rog has pointed out (well spotted Rog) - which definitely needs further clarification - there doesn’t seem to be anything else that has changed.

All this discussion regarding places of work and commuting seems pointless as nothing has changed in relation to that. An agency driver is considered to be going to his regular place of work if the vehicle he is taking over is at its operating centre. Things only change if the vehicle is not at the operating centre where it belongs … and the EU Rules have always said the commute to or from a vehicle not at the operating centre or drivers regular place of work must be recorded and cannot be recorded as rest or break. This has been the case for years.

I agree the text of the guidance has not changed.

Is there any authority that the vehicle’s operating centre is treated as an agency driver’s “regular place of work” for the purposes of calculating working time?

The guidance doesn’t say this as far as I can see.

And by analogy, why can’t an employer say that an agency care worker’s regular place of work, is the location of the first elderly client’s home? Or that a mobile electrician’s regular place of work, is that of any client where he does a day’s work? How do agency HGV drivers differ from these other types of workers?

51

Rjan:
Is there any authority that the vehicle’s operating centre is treated as an agency driver’s “regular place of work” for the purposes of calculating working time?

The guidance doesn’t say this as far as I can see.

And by analogy, why can’t an employer say that an agency care worker’s regular place of work, is the location of the first elderly client’s home? Or that a mobile electrician’s regular place of work, is that of any client where he does a day’s work? How do agency HGV drivers differ from these other types of workers?

I don’t have any documentary evidence of this but do know from previous encounters with the enforcing authorities over similar matters that this is how DVSA will view it (although in light of the Tyco case their views may well change).

An agency driver by nature has to report to various places of work. As far as the EU Drivers Hours Rules are concerned, in this case it falls to whether or not the vehicle is at its operating centre and the operating centre is ‘considered’ to be to be where that driver is regularly based because on that day, that driver is working for that operator and that operators vehicles are in his operating centre.

Should that operator require that agency driver to take over the vehicle away from the operating centre - then the journey must be recorded and cannot be recorded as rest or break (unless on a ferry or train).

There is a distinct difference between an authorised operating centre and a care workers first client of the days house or an electricians first customer.

I would advise any agency driver who is unsure to record their journey and count it as part of their duty period … they cannot break the law then - but may of course upset the operator :wink:

But of course - even DVSA would tell you to seek legal advice to clarify this issue as they themselves simply interpret the legislation to form their own enforcement policies. Only the courts can truly decide.

52

shep532:
I don’t have any documentary evidence of this but do know from previous encounters with the enforcing authorities over similar matters that this is how DVSA will view it (although in light of the Tyco case their views may well change).

I agree with that. Personally I doubt that it will become a big DVSA issue (and I wouldn’t be recording commutes on the tacho just yet), but it may be something that an overworked driver would raise.

An agency driver by nature has to report to various places of work.

In this respect an agency driver is not “by nature” different from an at-home carer, or a field engineer, or so on. The fact that operators have consistent operating centres is not different from an elderly person having a consistent home, or a field engineer’s clients having consistent operating centres.

As far as the EU Drivers Hours Rules are concerned, in this case it falls to whether or not the vehicle is at its operating centre and the operating centre is ‘considered’ to be to be where that driver is regularly based because on that day, that driver is working for that operator and that operators vehicles are in his operating centre.

Should that operator require that agency driver to take over the vehicle away from the operating centre - then the journey must be recorded and cannot be recorded as rest or break (unless on a ferry or train).

There is a distinct difference between an authorised operating centre and a care workers first client of the days house or an electricians first customer.

What, in words, is the difference you perceive? The fact that there is a licencing regime around operating centres, does not obviously relate to the question.

Without seeing that it makes any difference to the principle, I can see that a care worker can, truly, be sent from home to almost anywhere - and that place may not be commercial premises.

But a field engineer for, say, National Grid may be visiting sites where at least some of which are in some way licenced or regulated like road haulage operators (they can’t just plonk pylons, transformers, power stations, or control rooms anywhere). They may also start their days by going from home to stores or workshops to collect necessary supplies - those stores are fixed locations like haulage operating centres, but the engineer does not necessarily start at the same stores every day. And unlike the average field engineer, the agency driver might not work regularly for one employer, and may go to a particular employer’s operating centre only once, or once in a blue moon.

I would advise any agency driver who is unsure to record their journey and count it as part of their duty period … they cannot break the law then - but may of course upset the operator :wink:

But of course - even DVSA would tell you to seek legal advice to clarify this issue as they themselves simply interpret the legislation to form their own enforcement policies. Only the courts can truly decide.

Indeed.

53

(duplicate post)

54

Rjan:
What, in words, is the difference you perceive? The fact that there is a licencing regime around operating centres, does not obviously relate to the question.

Without seeing that it makes any difference to the principle, I can see that a care worker can, truly, be sent from home to almost anywhere - and that place may not be commercial premises.

But a field engineer for, say, National Grid may be visiting sites where at least some of which are in some way licenced or regulated like road haulage operators (they can’t just plonk pylons, transformers, power stations, or control rooms anywhere). They may also start their days by going from home to stores or workshops to collect necessary supplies - those stores are fixed locations like haulage operating centres, but the engineer does not necessarily start at the same stores every day. And unlike the average field engineer, the agency driver might not work regularly for one employer, and may go to a particular employer’s operating centre only once, or once in a blue moon.

I am simply working on previous dealings with enforcement officers regarding the issue of record keeping and agency drivers. So whatever I say is just my opinion based on those dealings - after which I took the enforcement officers advice with regard to agency drivers.

From what I understand, the enforcing officers would view that on the day the agency driver is allocated to work for ABC HAULAGE they effectively become drivers of ABC HAULAGE (for drivers hours purposes) and are treated no differently than a fully employed driver of ABC HAULAGE. This is far removed from the care worker who is ‘employed’ by ABC CAREWORKERS and sent somewhere to file the toe nails of Mrs Meldrew in Mrs Meldrew’s house. ABC CAREWORKERS may have nothing more than an office in an office complex and their employees never actually go there. BUT … if the care workers first port of call was ABC CAREWORKERS office to collect a nail file and scissors then the journey to ABC CAREWORKERS would be rest and the journeys thereafter would be duty.

The field engineer you describe seemingly has no fixed working place. As you say he may go to stores here or there before venturing to the actual job site … I would say those journeys were working time. BUT … if the first port of call was a stores at a location where he normally worked (as stated in his employment contract perhaps?) then the journey to there is rest, and the journeys after that are not.

What I am trying to say is that ABC HAULAGE have an operating centre from which everyone operates and that is what this whole thing is about - where everyone operates from. A salesman or field engineer with no appointments would report to their ‘yard’ or ‘office’. That is the equivalent of the operating centre. If they don’t report there - then the journey is working time.

I know when I had employees working for me and I had two distinct work places (both operating centres) their contract of employment stated that their regular places of work would be either site 1 or site 2 as required. Therefore for drivers hours purposes a journey to site 1 or site 2 is rest because as far as I am concerned they are listed as regular places of work. But if I sent them to site 3 directly from home - that journey would need recording. If they came to site 2 and then went to site 3 the journey to site 2 would be rest. I suppose the key is the employees accepted that contract with those two addresses and accepted they would be commuting to either one.

We also have to consider that because the WTD and Drivers Hours are separate issues it is possible for a journey to be working time for the WTD and rest for the Drivers Hours Rules in the same way the first 20 days of paid holiday count as working time for WTD but for Drivers Hours these are rest days.

However … I am now bowing out of this particular conversation as it is going around in circles. I know where I stand and would be confident that should I ever run an operation again the authorities would (currently) agree with the way I work and accept that for an agency worker my operating centre is (just for today) that drivers regular place of work.

55

shep532:
The field engineer you describe seemingly has no fixed working place.

So if we accept that it is possible for a field engineer to have no fixed working place, even though he only visits a finite number of fixed commercial installations (and may start his day at an even smaller number of “bases” like stores), then why would a driver who regularly starts at different places (and maybe even for different clients) be treated as having a fixed workplace at any client’s operating centre where he happens to start his day?

As you say he may go to stores here or there before venturing to the actual job site … I would say those journeys were working time.

Just like a driver collects the wagon before making the collection or delivery at the customer’s site. Also, for a field engineer, the stores may still incorporate a workshop (where the engineer occasionally does work, like the driver whose goods are already on a trailer at the yard).

BUT … if the first port of call was a stores at a location where he normally worked (as stated in his employment contract perhaps?) then the journey to there is rest, and the journeys after that are not.

Only if he in fact “normally works” (or normally starts) at those particular stores! The agency driver does not (necessarily) normally start work at your yard in the course of his agency employment (which can see him sent to many clients in many places).

An agency driver may not have an employment contract, and if he does it is unlikely to fix a particular regular workplace (and it wouldn’t help those clients who aren’t his regular client).

It’s not enough to say that he has another contract for each day, fixing the workplace, because that may be true for any worker who isn’t on a steady contract at a fixed workplace. The agency could fix a new elderly person’s house each day for the care worker. It would also ignore the bigger picture about the regularity of his workplace (which EU law, unlike sometimes British law, does take account of, and is why rolled-up holiday pay was barred for agency workers - notwithstanding that his contract may start and end each day).

What I am trying to say is that ABC HAULAGE have an operating centre from which everyone operates and that is what this whole thing is about - where everyone operates from. A salesman or field engineer with no appointments would report to their ‘yard’ or ‘office’. That is the equivalent of the operating centre. If they don’t report there - then the journey is working time.

But the test is not whether “everyone” driving for that operator always operates from that particular centre. It is whether that particular worker regularly does so.

If everyone operates from your one centre, but a particular agency worker does not do so regularly, then that particular agency worker’s workplace is not fixed at your operating centre.

An agency driver with no appointments on a particular day reports home - not to his agency’s premises or to any particular client. That is his “default” operating centre, just as it apparently is for care workers, and many other types of insecurely employed workers.

I know when I had employees working for me and I had two distinct work places (both operating centres) their contract of employment stated that their regular places of work would be either site 1 or site 2 as required. Therefore for drivers hours purposes a journey to site 1 or site 2 is rest because as far as I am concerned they are listed as regular places of work. But if I sent them to site 3 directly from home - that journey would need recording. If they came to site 2 and then went to site 3 the journey to site 2 would be rest. I suppose the key is the employees accepted that contract with those two addresses and accepted they would be commuting to either one.

We also have to consider that because the WTD and Drivers Hours are separate issues it is possible for a journey to be working time for the WTD and rest for the Drivers Hours Rules in the same way the first 20 days of paid holiday count as working time for WTD but for Drivers Hours these are rest days.

However … I am now bowing out of this particular conversation as it is going around in circles. I know where I stand and would be confident that should I ever run an operation again the authorities would (currently) agree with the way I work and accept that for an agency worker my operating centre is (just for today) that drivers regular place of work.

I would accept that as the DVSA’s current position.

I should also say I feel I totally understand your argument about your operating centre being fixed. My point is that this just appears not to reflect the law, which asks whether the individual worker’s workplace is fixed, not whether the employer’s workplaces are fixed.

56

Rjan:
I should also say I feel I totally understand your argument about your operating centre being fixed. My point is that this just appears not to reflect the law, which asks whether the individual worker’s workplace is fixed, not whether the employer’s workplaces are fixed.

OK - you got me … I wasn’t gonna play any more but … … … … … … I’m a ‘gotta have the last word’ kindda fella :unamused:

We (as in drivers and our industry) have our own rules. We have our own WTD and our own Drivers Hours Rules. This means ‘other’ rules don’t necessarily apply to us in the same way our rules may not apply to someone else from a different industry. As soon as some one drives or is part of a crew of a vehicle in scope of EU Rules they move out from under the WTD and come under the RT(WTD)

The Issues you are discussing here are for workers outside of the transport industry. As soon as they come and work in our industry - our rules apply and yes they are different. Therefore I believe that although your analogies between drivers and field engineers appear to make sense and fit the occasion - they don’t simply because - lets be honest - WE’RE DIFFERENT :wink: Things are far clearer for us as we have existing rulings/law/legislation and have had for a long time, whereas other industries are still unsure what the rules are for them and court cases are slowly clarifying these issues.

57

I always believed that the drivers’ hours rules were simply a much more restrictive subset of the working time rules. That is, both regimes apply to drivers (but complying with the drivers hours rules will automatically mean compliance with the parts of the working time rules which cover the same things).

Holidays apply to drivers for example, but this appears to be part of the working time rules, not the drivers hours rules.

I could be wrong about that though.

The definition of “working time” could also be different for drivers, but I haven’t seen commuting specifically excluded anywhere from the definition for drivers, and the reasons for why the court decided that commuting was working time for non-drivers (in the relevant circumstances), seems to be applicable equally to drivers.

The definition of “other work” for tachograph purposes, however, does specifically include any working time under the general working time rules. So if you do non-transport work which doesn’t come under the drivers hours definition of working time, but does come under the general working time definition, it still has to be recorded (even if it doesn’t count for the drivers hours limits).