Russell Brown a Solicitor at the Manchester office of law firm Glaisyers and a specialist on employment matters examines the complexities of the amendments to the Working Time Regulations from an employers perspective.
Because drivers and non-mobile staff working in the air, rail, road, sea, inlet waterway and lake transport sectors were initially exempt from the Working Time Regulations 1998, employers in those sectors did not need to concern themselves with its specific provisions.
Among other things, they escaped the introduction of the maximum 48 hour week.
In 2003, the Working Time (Amendment) Regulations introduced various provisions in relation to all non-mobile workers, and certain (but not all) drivers.
On the 4th April this year however, (pushed back last week from the intended date of 23rd March) The Road Transport (Working Time) Regulations will come into force. It applies to all those drivers who, up until now, havent been affected by Working Time legislation. Unsurprisingly, this staggered approach has led to quite a bit of confusion over exactly who is affected by which provisions.
To understand the new Regulations it is important to know about the existing ones.
The Working Time (Amendment) Regulations 2003 included 4 main provisions:
(a) 48 hour average working week (with opt-out)
(b) 4 weeks paid annual leave
(c) Regular health checks for night workers
(d) A requirement for adequate rest
These rules apply to all non-mobile workers, and to drivers who work under the UKs domestic drivers rules.
However, arguably the most important of these rules - the 48 hour week (with opt-out) and the requirement for adequate rest, do not apply to drivers who drive under the EC drivers hours rules.
It is therefore critical to determine whether your drivers work under the Domestic rules or the EC rules in order to establish which Working Time provisions apply.
Who works under UK Domestic Rules and who under EC Drivers Hours Rules?
Drivers operating a PSV on a regular service route not exceeding 50 kilometres will be subject to the UK domestic drivers rules, and all of the 2003 Amendment Regulations. Similarly, those drivers operating on routes which exceed 50 kilometres but whose vehicles have fewer than 18 seats will also fall within the UK domestic drivers rules.
However, those who are driving on routes which exceed 50km, and whose vehicles have 18 seats or more, along with those on international routes, drive under the EC Rules and will only be affected by the 2003 Regulations above regarding (b) amount of paid leave and (c) night workers health checks. Drivers on non-regular services where the vehicle has 18 seats or more will also fall under the EC rules, regardless of the length of the route.
But as from the 4th April 2005, those drivers who have been unaffected by (a) the average 48 hour week rule (with opt-out) and (d) the adequate rest rule in the 2003 Amendment Regulations, will be governed by the provisions of the Road Transport (Working Time) Regulations 2005.
Drivers in the haulage industry almost exclusively fall within the EC rules. Only those driving vehicles with a maximum permissible weight of less than 3.5 tonnes (including trailer or semi-trailer) are governed by the UK rules (there are some very limited exceptions to this, mainly affecting non-commercial or agricultural vehicle use).
The Road Transport (Working Time) Regulations 2005
The new Regulations will introduce (amongst other things) the following provisions:
1. An average 48 hour maximum working week. This will normally be calculated over a 17 week period but this can be extended to 26 weeks under a relevant agreement with drivers. Critically, this will contain no opt-out.
2. A limit of 60 hours for the maximum amount of working time that can be performed in a single week
3. Periods of availability. Generally speaking, this covers waiting time - where the mobile worker knows the duration in advance. These are paid but do not count towards the average 48 hour week.
4. A compulsory break after 6 hours working time. This means taking a break of 30 minutes during spells of between 6 and 9 hours work, or 45 minutes for over 9 hours work. It is permitted to divide these breaks into two-or-three 15-minute slots.
Clearly the introduction of The Road Transport (Working Time) Regulations 2005 will have widespread implications for employers in the transport industry.
Many drivers in the bus/coach industry, and most drivers in the logistics industry will be driving under the EC Rules and therefore subject to the new provisions. They will not be able to work longer than an average 48 hour week, and will not be entitled to opt out of this provision. Breaks during spells of work will be compulsory.
Many employers in the transport industry will find it necessary to make major revisions to their working practices to accommodate these changes. Research suggests that the average working week in the industry is around 55 hours at present, and cutting this down may involve taking on more drivers to work the extra time legally. It has also been suggested that some 90% of logistics companies have working practices which do not comply with the Working Time legislation, and this clearly needs to be addressed over the next fortnight. Employers who have any uncertainty over which drivers will be subject to which provisions, are urged to seek immediate legal advice.