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Hours rules presume guilt
Page 7
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THE NEW drivers' hours rules are set to make UK operators automatically liable for driver infringements, allowing them only a narrow statutory defence.
The Freight Transport Association (FTA) has been battling with the Department forTransport (DIT) over the interpretation of the EU wording,which gives member states the option of whether to see the employer's offence as conditional on poor management practice.
The regulations suggest that as long as an operator schedules work in accordance with the law, carries out regular checks and does not pay a mileage bonus, the authorities can choose to look favourably on the operator's position.
Initially the MT argued alongside the FTA against holding operators absolutely responsible for drivers' hours infringements; however it appears to have decided that a statutory defence is sufficient to protect operators' rights.
The proposed defence only applies where there was an unforeseeable delay or the employer was not to know that a driver was working for a third party. Being unaware of some driver infringements, despite good management protocols, will not be a defence.
The FTA is concerned that this moves the burden of proof from the enforcement agencies to the operator, in effect replacing the presumption of innocence with a presumption of guilt.
Joan Williams, head of road freight and enforcement policy at the FTA, says: "There is a strong argument against the DfT defence because it goes beyond the [EU] legislationit gold-plates it.
"The INT says that if there has been no breach of these points [detailed in the legislation] by the employer, this is a defence. We would argue that if there has The new law says...
"A transport undertaking shall be liable for infringements cornmiffed by drivers of the undertaking, even if the infringement was committed on the territory of another member state or a third country.
"Without prejudice to the right of member states to hold transport undertakings fully liable, member states may make this liability conditional on the undertaking's infringement of paragraphs -1 and 2."
And it concludes: "Member states may consider any evidence that the transport undertaking cannot reasonably be held responsible for the infringement committed." been no breach of these there is no offence to answer."
The new regulations also make "undertakings, consignors, freight forwarders, tour operators, principal contractors, subcontractors and driver employment agencies" responsible for making sure the hours rules are complied with.
Insiders at the DfT admit that its position might yet change as the law as not been "signed off at the higher echelons".
The relevant regulations can he seen at the DIT website www.dft. gov.uk/pgr/freightfroad/workingtime/europeanregulationecno561 2001164?version=1 Article 10, paragraph three.
• Logistics efficiency consultancy Key3 Partners says it has developed rota optimisation software to help operators handle the new drivers' hours regulations. It optimises vehicle schedules and driver rotas over a given reference period to make them legally compliant.