Has the Law on Keeping By Our Legal Records Been
Page 74
If you've noticed an error in this article please click here to report it so we can fix it.
Changed ? Adviser IT appears that attempts may be made—whether as a result of some central policy decision, or through the individual initiative of officials charged with enforcing the Wages Councils Act, 1959, it is impossible to say—to prosecute employers for failing to. produce their drivers' records for inspection as long as three years after their making. If this is so—and I know of at least one case where such a prosecution has been launched—it is a matter of the gravest consequence for every employer in the transport industry. Not only should operators' attention be drawn to the position, but the whole basis of such prosecutions should be carefully examined to ascertain whether the relevant statutes provide any warrant for them.
The authority for the keeping and preservation of drivers' records is to be found in Section 16 of the Road and Rail Traffic Act, 1933, and in regulations—as to detailed requirements—made under that section. It is clearly provided in Section 16 (4) that such records must be preserved for three months commencing on the date they are made, "and for such further period, not exceeding six months, as may be required by the Licensing Authority or a Chief Officer of Police."
Maximum Period Nine Months The sub-section then goes on to provide for the production of any such records during the obligatory period of preservation to any authorized person. It can be seen, therefore, that the normal period during which one must keep the records—and be prepared to produce them—is a mere three months, and that the maximum requirement which can be imposed upon one is a total of nine months.
Form-filling has become, if not a mania, then at least the hallmark, of modern man. There must, however, be some period of limitation to the amount of expended paperwork that one can be expected to hoard to satisfy the curiosity of various officials and inspectors, as seems clearly to be recognized in the comparatively short and sensible time limit imposed by Section 16. Such piles of paper— not one piece in 10,000 of which will probably ever be looked at again—merely occupy valuable office space and militate against efficiency.
Now let us turn to the Wages Council Act, 1959, which covers and continues the Road Haulage Industry Wages Order, 1959, made under previous legislation. By Section 17(1) of the Act an employer ',must "keep such records as are necessary to show, whether or not the provisions of this Act are being complied with, and the records shall be retained by the employer for three years." By subsection (3), failure to comply with these requirements is punishable by a fine of up to f20.
Helpful or Necessary?
Clearly, in a sense, drivers' records must be considered to be at least helpful in showing whether the provisions of the Act are being complied with or not; whether they are "necessary "—as required by Section 17(1)—in showing this may well be a matter of argument, which brings us to what is probably the crux of the problem of interpreting the requirements of the Act and in particular, to Section 19.
This section authorizes the Minister of Labour to appoint officers to enforce the Act, or in lieu of such appointment, to arrange with any other Government n40 Department for officers from that Department to do so on his behalf. It goes on to set out the powers conferred upon such officers. Under sub-section (3)(a) they are empowered to require the production of wages sheets and records, and any other such records as are required by this Part of this Act to be kept by employers." This is, of course, a reference to those records required to be ,kept by Section 17, which I have already mentioned.
" Obstruction " an Offence
Finally, sub-section (6) creates the offence of " obstructing " any such officer or "failing to comply with any requirement" of his.
It would, therefore, appear at first glance that these provisions seem to supersede those of Section 16 of the 1933 Act and prosecutions of the nature I am discussing are justified.
But I believe that such a view is wholly wrong and that any conviction which might result from a prosecution for failing to produce drivers' records earlier in date than the maximum of three or nine months—whichever might be applicable under Section 16 of the 1933 Act—could not be sustained on appeal. 'In the first place thtre is no express repeal in the 1959 Act of the provisions of the 1933 Act, .which would be expected if it were expressly intended to substitute any longer period for keeping such records. Secondly, it should be noted that under Section 19(3)(a) of the 1959 Act, the records which the authorized officer is entitled to have produced to him—apart from wages sheets—are such other records "as are required by this Part of this Act to be ' kept."
The Wrong Act Drivers' records are not required to be kept by that Act, but by the Act of 1933. Moreover, it seems that this clear distinction was recognized by the draftsman of the 1959 Act, because the paragraph (a) under discussion is followed by paragraph (b), which gives the officer concerned power to require the production of any licence or certificate granted under the 1933 Act "and of any records kept in pursuance of Section 76 of that Act."
If my interpretation is wrong and the law as to preservation of records has been changed, it has been effected in a backhanded and possibly unintentional way that is wholly contrary to the spirit of the 1933 Act. It is greatly to be hoped that any conviction of the nature discussed will be challenged by way of case stated, and that if such a change be held nevertheless to have come about, legislation to restore the previousposition will be advocated.
[The Road Haulage Association are understood to have taken legal advice on this question. They share the view of The Commercial Motor legal adviser that to requite drivers' records to be kept for three years is unsound in law.—ED.]