Working Time?

Aimed at ensuring that 'mobile workers' (for the purpose of this article, HGV drivers - whether part or full time) do not work and drive without taking sufficient rests because doing so can put road safety at risk, The Road Transport (Working Time) Regulations 2005 ("the RTWT Regs") apply to employed and self-employed HGV drivers who drive under the Community Drivers' Hours Regulation (Regulation (EC) 561/2006) on 11 or more days in a reference period that is shorter than 26 weeks.  Predictably there is more to the application of the RTWT Regs than this and Regulation 3 sets out in detail the circumstances in which the RTWT Regs will apply.

The RTWT Regs stipulate that the working time of affected HGV drivers may not exceed 60 hours in any week and in any reference period the working time shall not exceed an average of 48 hours for each week.  Most if not all tachograph analysis software packages include 'RTWT Regs' compliance (or non-compliance) reports, including a check on weekly and average weekly working time.

The RTWT Reference Periods

Setting default reference periods, the RTWT Regs divide the year into 3 parts:  December to April, April to August and August to December.  The precise start and end dates for each reference period are set out in Regulation 4 but they are not set in stone and operators can vary and extend the reference periods up to two periods of 26 weeks provided they follow the correct process.  And this is where many operators get into trouble.  By failing to follow the correct process in seeking to extend the reference periods operators roster drivers relying upon reference periods which they believe they have varied when in fact, no variation has actually taken place in law because the correct process has not been followed.  The potential implications for unintentional non-compliance are obvious.

For many operators, one week or one month of operation is very much like another and there are no annual or cyclical trends that they need to consider when scheduling drivers.  But many operators do have periods of particular intensity that need to be managed (we are fast approaching the Christmas rush which with the current national driver shortage is bound to impose real pressure on operators intent on managing their work in compliance with the rules).

Reference Period Extensions

The RTWT Regs state that a "reference period may be extended in relation to particular mobile workers or groups of mobile workers for objective or technical reasons or reasons concerning the organisation of work, by a collective agreement or a workforce agreement, by the substitution for 17 weeks of a period not exceeding 26 weeks".  A collective agreement has the meaning set out in the Trade Union and Labour Relations (Consolidation) Act 1992 and relates to unionised workers.  A workforce agreement "means an agreement between an employer and mobile workers employed by him or their representatives in respect of which the conditions set out in Schedule 1 to these Regulations are satisfied".

Workforce Agreements

The good news for operators is that the process for putting in place a lawful workforce agreement is not especially difficult provided the terms of Schedule 1 are followed and the following conditions satisfied:

(a) the agreement must be in writing

(b) it has to have effect for a specified period which may not exceed five years;

(c) it applies either -

• to all of the relevant members of the workforce, or
• to all of the relevant members of the workforce who belong to a particular group;

(d) the agreement must be signed

• in the case of an agreement of the kind referred to in sub-paragraph (c)(i), by the representatives of the workforce, and in the case of an agreement of the kind referred to in sub-paragraph (c)(ii), by the representatives of the group to which the agreement applies (excluding, in either case, any representative who was not a relevant member of the workforce on the date on which the agreement was first made available for signature), or
• if the employer employed 20 or fewer workers on the date referred to in sub-paragraph or by the majority of the workers employed by him; and (e) before the agreement was made available for signature, the employer provided all the workers to whom it was intended to apply on the date on which it came into effect with copies of the text of the agreement and such guidance as those employees might reasonably require in order to understand it in full.

The remaining parts of Schedule 1 define the meaning of the terms 'a particular group' and 'relevant members of a workforce' and detail the way in which representatives of a group of workers or representatives of a workforce should be elected so that representatives can sign workforce agreement on behalf of a larger group of workers affected by changes implemented using a workforce agreement.

Night Working

Working during night time ("night work") means work performed between midnight and 4 a.m. for HGV (and between 1 a.m. and 5 a.m. for PSV).

Regulation 9 states that the working time of a mobile worker who performs night work in any period of 24 hours, shall not exceed 10 hours during that period but this period of 10 hours may be extended in relation to particular mobile workers or groups of mobile workers for objective or technical reasons or reasons concerning the organisation of work, by a collective agreement or a workforce agreement.  Self-employed drivers may also elect to extend their period of 10 hours and anyone seeking to disapply the night working limit must take all reasonable steps in keeping with the need to protect the health and safety of mobile workers to ensure that the applicable limit on working time when night work is conducted is complied with by each affected mobile worker.

Conclusion

To make best use of the RTWT Regs operators need to know what the provisions allow, they need to understand the flexibility that is available (using workforce or collective agreements) and they need to relate the purpose and scope of the rules to their individual operations.

Crucially, when a decision is taken to change the applicable reference periods and/or to vary the restriction on working time for mobile workers performing night work, operators need to ensure that they understand the steps that they need to take, including for workforce agreements dealing properly - and recording correctly - the process of electing representatives, and they need to make sure that the agreements that they put in place fully comply with the regulations.  Failing to follow the correct process will result in the variations not taking effect, with the consequence that operators and their drivers will be working in the mistaken belief that the work is being lawfully conducted when in fact serial repeated offences are being committed with predictable adverse consequences in terms of safety, the threat of criminal proceedings and/or call up to Public Inquiry before the Traffic Commissioners.

(C) Richard Pelly, Pellys Transport & Regulatory Law

Article first appeared in Croner-I

Dec. 2021