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6th February 1970
Page 85
Page 85, 6th February 1970 — topic
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Which of the following most accurately describes the problem?

Multitude of counsellors by Janus

ONE CRITICISM constantly made of the system Of carriers' licensing now being dismantled was that it had become submerged by layer upon layer of case law to such an extent that only a lawyer—and sometimes not even a lawyer—could find his way down to the genuine bedrock. When implementation of the Transport Act 1968 seemed comfortably remote its supporters would suggest that legal complications were a thing of the past.

The boast is no longer so frequently heard. For one thing carriers' licensing will survive for some considerable time and if and when quantity licensing takes its place there will soon be just as many knots as before for the Licensing Authorities and the Transport Tribunal to unravel.

Neither is it a foregone conclusion that operators' licensing will put the legal profession itself in Carey Street. The prologue in which operators are switching from one system to another may so far have raised few difficulties although the first few traffic court cases itre beginning to be heard. The proper test will come with applications for new licencels, for variations and ultimately for renewals.

Specific prophecy would be rash. All that can be said at this stage is that the road transport industry will be fortunate if in the field of licensing it no longer has to battle with legal procedures and arguments, complicated decisions that the layman finds difficulty in understanding, counsel's opinions that often fog the issue still more, appeals to ever higher courts and So on.

Away from the subject of licensing there are many probleins where the skill of the lawyer seems to be needed. It is strange on at least two counts that hauliers should decide to get a legal opinion on the report of the Bristow joint committee on the definition of dock work in London.

IN the first place the report is far from being a piece of legislation on which actions can be fought. There will be representations to the Department of Employment and Productivity and these will become official objections if the official proposals follow the lines of the report. Almost certainly there will have to be an inquiry on the basis of which the Minister will decide whether to table a regulation. Even at that stage Parliamentary opposition is to be expected.

The full legal treatment may therefore seem to have been introduced rather early in the day. In addition—and the second point goes a long way to explain the first—it ought to have been expected that the Bristow committee, charged with the duty of definition, would have produced a clear and unambiguous statement to explain what had previously been obscure. The resort to counsel's opinion is a devastating if expensive comment on the failure of the joint committee to fulfil its allotted task.

Whatever the ultimate interpretation of the report may be it has unmistakably gone far beyond the terms of reference. These drew attention to the phrase "in the vicinity of the port" Which perhaps significantly . finds no place in the body of the report. It is taken from the 1942 Dock Labour Scheme and is the central issue upon which the Industrial Tribunal has more than once been asked to make decisions.

HERE can be little doubt of the meaning of these decisions. In the latest case the Dock Labour Board was claiming that the premises of Bay Manor Services Ltd., West Thurrock, came within the present definition. They were half a mile away from the nearest point of the river and there were not at this point facilities for dealing with the traffic passing through the premises. The distance from the river, said the Tribunal, "is considerably too far away for it to be held that a warehouse on it is in the vicinity of the river".

The decision is substantially the same as that given in the case of Jess B. Woodcock and Son Ltd. a month earlier. The circumstances were not identical. In the later case the company or its predecessor had carried on a business mainly concerned with the import of tea at three waterside warehouses. The tea was handled by registered dock workers.

In 1968 the work was transferred to an inland warehouse. Some £45,000 was paid to the registered workers as ex gratia terminal grants or severance payments. The company must have supposed that they were taking the work outside the range of the dock labour scheme. The tribunal emphasized the description of inland warehouse and pointed out that the object in moving "was not to be as close to the river as it could without involving itself in being a riverside warehouse".

The premises would become just that if the Bristow report was adopted. There would be a privileged enclave for dock workers 10 miles wide all the way down the river from a point somewhere near Teddington.

If consequences of this kind flow from the dock labour scheme, trade and industry and the country as a whole would be better

off without it. The situation which made it desirable may no longer exist. Winding up the scheme will be expensive. Registered dockers would have to be paid for giving up their rights. Even so, it would make better sense to re-assess the scheme as a whole instead of proposing a substantial increase in its scope which would also increase the area within which its defects are apparent and resented.

Counsel's opinion well in advance of when it might be needed in court or before a tribunal has also had to be taken on a different matter. Unable to understand from the wording of the Transport Act when a driver is supposed to be on or off duty, the Freight Transport Association has called in a legal expert.

NON-DRIVERS who have been patient enough to struggle through his analysis should be thankful that . they are not called upon to decide day after day when they are working and when they are putting their feet up.

The opinion is particularly entertaining when it comes to the question of the driver's statutory half-hour break for rest and refreshment. Three possible kinds of situation are envisaged.

The driver may be given duties to perform during the break. Examples given are ,supervising loading, moving the lorry in a queue as those ahead move forward, making up records and telephoning the employer, with a meal worked in during the intervals. The courts would consider he was on duty, counsel thinks. It is a pretty safe assumption for what looks like the busiest half hour in the driver's day.

If the driver has no duties to perform he will be treated as not being on duty, says counsel. This must be the safest bet of all. What operators and drivers most want to know is the attitude of the courts in the third set of circumstances in which the driver, without having duties expressly laid on him, does on occasions "perform acts for and on behalf of his employers". Well here, says counsel, "the position is more difficult and must depend on all the facts".

Which of course is just as we might have supposed.

ON what the driver believes to be his duty must depend in which column of the record form he enters his statutory break. If prone to hesitation or over-burdened with conscience he might often have a painful struggle with himself before making the choice. He has to reach a decision before continuing his journey or else he would be contravening another section of the law.

Unless the enforcement officer carries out a silent check on drivers in a cafe or on a lay-by he has no way of knowing what the driver has been doing during the break. Within the context of road safety the point hardly seems worth bothering about. It would have been a nice gesture by the Minister to have announced that one column would be sufficient.


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