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LEGAL BULLETIN
Page 32
Page 33
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used to maintain the vehicles, then the operator may not know whether his vehicle has passed its test on the first—or even second—presentation.
Understandably, a contractor may not wish to pass on that information as it hardly reflects well on their service? However, ignorance is never a good excuse, and it is the operator's responsibility to get this information from the contractor, Or indeed from the test station. Historical information can be obtained from the Vehicle Inspectorate database at Swansea for any vehicle or trailer.
The operator also needs to establish why there has been a test failure. Any failure could raise doubts as to the competency of the maintenance contractor, and more importantly of the operators' systems.
Prohibitions are another good a source of establishing quality standards. A prohibition may be indicative of a failure of the company's maintenance systems, may be related to the contractor or driver or, on occasion, may just be one of those operational defects that cannot be prevented. However, most operational failures are easily picked up, so these are rare.
If the prohibition indicates a significant failure, then it will be endorsed with an 'S' marking. The 'S' marking means steps must be taken immediately to ascertain where the fault lies, and immediate action taken to prevent a repetition, If an 'S marked prohibition is issued, the Vehicle Examiner will give details of why, in his opinion, there has been a significant failure and in which area of the operator's system the failure has occurred.
An 'S' marked prohibition will invariably be followed by a summons to a Public Inquiry and if the vehicle still does not pass when the prohibition is submitted for clearance and is subjected to a variation, then that is considered a cause for grave concern.
A prohibition, and the variation of a prohibition, is an early indicator to a potential failure in an operator's system (or those of its third-party contractor) and it should trigger an immediate assessment of the system to ensure that further vehicle defects are avoided.
If the situation escalates to a PI, the TC will not accept that the blame rests entirely with a thirdparty contractor if something has gone wrong. The system detailed above offers a number of warning stages which should alert an operator to any problems, and TCs will come down particularly hard on operators that fail to take action to remedy a contractor's shortcomings.
Maintenance contract
So what safeguards can you put into place when your considering using a third-party maintenance
contractor? The first step is to ensure that you have a proper written maintenance contract. There is a standard model maintenance contract produced by the Department for Transport (Dn.), which has to be completed when outside maintenance is used relating to safety inspections and repairs of vehicles. The contract places obligations on the contractor to: eInspect all the items specified in the maintenance
record in the form for the period of time being approved by the VT relating to the vehicle. e. if the operator so consents, carry out such renewals and repairs as may be necessary to ensure that the vehicle and every part of it specified in that maintenance record is in good working order and complies with every statutory requirement applying to it.
e. Complete that maintenance record to show: a) which items were in good working order and complied with the relevant statutory requirements when the vehicle was submitted; b) which, if any, items were not in good working order or failed to comply with those requirements when the vehicle was submitted, but had been replaced or repaired so that those requirements are satisfied; and c) which, if any, items were not in good working order or failed to comply with those requirements when the vehicle was submitted and which have not been so replaced or repaired; d) to provide the operator with a copy of every completed record.
Therefore, the agreement simply places an obligation on the contractor to complete a maintenance record, to identify on the maintenance record those items which are in good working order, those which are not, those which are being repaired or replaced and those which are not, and to provide a copy of that maintenance record to the operator.
There is a proviso in terms of the contractor's obligations that the operator has to consent to renewals and repairs being undertaken.
Thus the final obligation lies with the operator to liaise with the contractor, so that it knows specifically what work to carry out to ensure the vehicles are kept fit and serviceable in accordance with the undertakings, and are therefore roadworthy and will remain so until the next inspection at least.
The DfT's model agreement also places specific obligations on the operator. These are: + To submit to the contractor each vehicle mentioned in the schedule in order that the contractor may comply with the provisions as regards that vehicle: a) Within so many weeks of that agreement. b) Within so many weeks of the date of the last safety inspection.
eTo pay the contractor whatever reasonable fee It asks.
Retain and make available for inspection every maintenance record mentioned for a period of 15 months, starting with the date of issue.
In order to comply with the model agreement, the operator therefore has to liaise with the contractor, and consider each inspection sheet in order to give an informed authority as to which defects should be actioned.
In essence, that means that the responsibility for ensuring that the vehicle is kept fit and serviceable finally rests with you—the operator.
Maintenance standards
It is advisable to sit down with the maintenance contractor and actually set out in writing the standards which you expect in terms of: • Test presentation; • Prohibition clearance; • Release of vehicles following a preventative Inspection; and • The repair of defects to the standard required in terms of test presentation; le that vehicles must pass the test first time.
Vehicles should therefore be fully prepared to pass that test and if they fail then there should be an obligation on the contractor to notify the operator and to give a full explanation.
The contractor may want specific authority from the operator to use roller brake, headlamp aim or smoke testing facilities at the MOT station (commonly known as the 'multi-check') immediately prior to any test and during preventative safety inspections.
If a prohibition is imposed, then the contractor should provide a full detailed analysis of what triggered it and their recommendation to prevent a repetition. Moreover, If the vehicle is sent for clearance of a prohibition, then the whole vehicle should be subjected to an inspection by the contractor to ensure that the prohibition is indeed cleared and no further defective items attract a variation of the original prohibition.
There also needs to be a written commitment from the contractor that no vehicle will be released with any defect which could affect road safety between the date of release and the next inspection and that, in particular, no vehicle will be released which could attract a prohibition, whether immediate or delayed, or a defect notice.
The operator clearly needs to know the condition of his vehicle when it's released by the contractor, so the maintenance inspection sheet should be collected with the vehicle and endorsed to confirm that the vehicle is not only roadworthy but also that all defects found have been rectified.
Other safeguards
Even if your vehicles and trailers don't attract any prohibitions, and there are no MOT failures, then it is still not sufficient just to assume that the systems in place are working. Sc what other safeguards are there?
Trade associations and independent transport consultants offer independent audit of an operator's and contractors systems to ensure that they comply with the requirements of the Goods Vehicle Operator Licensing Regulations and undertakings given to the TC —and, more importantly, whether they are effective. They can produce reports on a periodic basis, However, if you do hire an independent consultant to inspect the work of a third-party contractor, then the former's terms of reference must also be set out. Their brief must be specific as to exactly what the operator expects, ie whether the audit includes an inspection of every single document or just a sample, or whether the audit should include a physical check of a vehicle.
Tachographs
Along with vehicle maintenance it's also possible to contract out the inspection of tacho charts. However, receiving the analyst's sheets and signing them off is not by itself enough to satisfy the undertaking that proper arrangements have been made. More importantly, such a system is unlikely to be sufficient to avoid a criminal prosecution.
With tachographs there must be zero tolerance. No level of infringement should be acceptable to the operator. if an infringement is found, it is not merely an error. Every infringement whether it be completion of the centre-field, movement of a mode switch or a breach of the daily rest requirements, will be a criminal offence.
So how would you know if a driver is operating a sophisticated fraud by falsifying tachograph charts in such a way that appear to indicate no breaches of the drivers' hours and tachograph regulations? The only way is to have another system which also records drivers' hours, which can then be used for cross-referencing.
It's not good enough to merely send a few charts every few months to be analysed. Operators must check not only the analyst reports but also other company records to check the charts are genuine.
The purpose of the system is to identify infringements and to take the appropriate action to prevent a repetition, which is also the requirement under EC legislation. Operators who fail to carry out those steps risk losing their Operator's Licence and receiving a criminal conviction.
Missing charts
If the inspection of tacho charts is contracted out then, again, the terms of reference should be clearly set out in writing. For example, does the tachograph analyst company produce a missing mileage report automatically or do you have to request one? Do they advise you of average or peak speeds to help you determine whether drivers are speeding, or if a speed limiter is functioning? Do they advise you of missing charts, or just assume a rest day has been taken when in fact it may not have been? As with maintenance, the tachograph system should be audited either internally or externally to ensure that the system in place is working 100%.
The Public Inquiry
If an operator is called to Public Inquiry, then the Traffic Commissioner will consider whether to: • Revoke the licence—this could take immediate effect and prevent the operator from operating vehicles In excess of 3.5 tonnes.
• Curtail the licence—this is the permanent reduction of the size of the fleet. It is left open to the operator to apply at a future date for restoration of that curtailment.
• Suspend the licence—the Traffic Commissioner can suspend all or some of the vehicles on a licence for such a period as he feels appropriate.
If a TO revokes a licence, then the operator could also be disqualified from holding an Operator's Licence. The licence is the operator's means of earning a living and, without it, the commercial viability of his business would be severely affected. Thus the IC should be treated as the Chairman of the Board who has the power to prevent the company from operating. Consequently an operator must must take all steps possible to protect its licence, and not rely entirely on third parties to ensure compliance with the obligations.
Failure of the outside contractor or his transport manager will be no defence before a Traffic Commissioner if the operator has not put adequate systems in place, and taken all appropriate steps to ensure that those systems are being operated correctly.