Road transport: working time regulations overview part 2
This week Sue Nickson, International Head of Employment at Hammonds, continues her series of articles on the forthcoming Road Transport (Working Time) Regulations with a look at reference periods for calculating average weekly working hours, night work and rest periods.
The Road Transport (Working Time) Regulations are due to come into force on 4 April 2005 to implement Directive 2002/15/EC on the organisation of the working time of persons performing mobile road transport activities. The Regulations apply to drivers and other mobile workers in the road transport sector who are involved in operations subject to the EU Drivers' Hours Rules. The Regulations define a mobile worker as 'any worker forming part of the travelling staff, including trainees and apprentices, who is in the service of an undertaking which operates transport services for passengers or goods by road for hire or reward or on its own account'. They set out limits on weekly working hours and on night work as well as extending rights to rest periods to mobile workers other than drivers and introducing new rights to breaks where activity is not covered by the EU Drivers' Hours Rules. Last week's article concentrated on who is covered by the Regulations and what constitutes working time for the purpose of the weekly limit on working hours. This week's article looks at other aspects of the Regulations including reference periods for calculating average weekly working hours, night work and rest periods.
Calculating weekly working limits
The Road Transport (Working Time) Regulations provide that a mobile worker cannot work more than an average of 48 hours per week, calculated over a reference period, and cannot work in excess of 60 hours in any one week. It is not possible for employees to opt out of these limits. A 'week' for these purposes starts at 00:00hrs on a Monday morning.
Several methods can be used to calculate and montitor compliance with the weekly average, as set out in the Department for Transport draft guidance. The chosen method must be agreed in advance. The default arrangement sets out specific reference periods based on calendar dates. The default reference periods commence at 00:00 hours on the Monday that is on or after 1 April, 1 August and 1 December each year. It will be the required approach where no agreement on which method to use can be reached.
Alternatively the employer may enter into a relevant agreement to apply reference periods with different start and finish dates of up to a maximum of 26 weeks. For example, three reference periods starting on the nearest Monday on or after 1 May, 1 September and 1 January could be chosen.
The third option adopts the method set out in the Working Time Regulations 1998, regulation 4(6) and again requires a relevant agreement. This method uses a rolling 17-week reference period, again extendable by agreement to up to 26 weeks.
Although the guidance states that it is generally expected that all workers will be subject to the same reference period calculations it acknowledges that there may be technical or operational reasons why this approach will not suit everyone. An example given is where part-time workers work for two or more employers. In these cases the employer may agree a more suitable reference period with the individual although, where there is no relevant agreement in place, the reference period cannot exceed 18 weeks.
If an employee works for two or more employers performing road transport operations, then his or her weekly working time is the combined total of working time for all those employers.
Night work
Where a worker carries out any night work, the worker must not work more than 10 hours in any 24-hour period. For these purposes, 'night time' is between midnight and 4 am for drivers and mobile workers on goods vehicles and between 1 am and 5 am for those on passenger services. A worker will be subject to the night-work limit if he or she does any work at all during night time. Rest breaks and periods of availability are not counted in this calculation. It is possible to exceed the limit on night work by way of collective agreement, although night work is also restricted by the terms of the EU Drivers' Hours Rules.
Rest periods and breaks
Although the EU Drivers' Hours Rules already provide for minimum daily and weekly rest periods for drivers, the Road Transport (Working Time) Regulations extend those provisions to other mobile workers covered by the Regulations. The Regulations also introduce new break entitlements that apply when a mobile worker is carrying out work not covered by the EU Drivers' Hours Rules.
Daily rest: The EU Drivers' Hours Rules require that drivers have 11 consecutive hours of rest in each 24-hour period. The 24-hour period runs from when the driver commences work. The 11-hour period can be reduced to nine hours on up to three occasions within any one week, provided that any such reduction is compensated for by the end of the following week.
Weekly rest: The EU Drivers' Hours Rules also provide for a weekly minimum of 45 hours' consecutive rest. Again this can be reduced to 36 or 24 hours (depending where the rest is taken) provided that the reduction is compensated for within the next three weeks.
Rest breaks: If a mobile worker is driving, the break provisions within the EU Drivers' Hours Rules take precedence. These require the driver to take a break of 45 minutes after a period of four and a half hours' cumulative or continuous driving. Alternatively the 45-minute break can be broken down into two or three breaks of no less than 15 minutes each.
The Road Transport (Working Time) Regulations, regulation 7 provides for minimum break periods, which also apply to non-driving activities. Under the Regulations, workers must not work for more than six hours without a break. If the hours of work are between six and nine hours, the break period must be 30 minutes. If the hours of work exceed nine hours, the break period must be a total of 45 minutes. Breaks can be broken down into 15-minute periods.
Where there is a combination of driving and other work the employer will need to ensure that the proper break periods are adhered to. As an example, a worker splits up his day into three hours' driving, followed by two hours of other work and then a further one hour's driving.
This arrangement will give rise to a 30-minute break entitlement under the Road Transport (Working Time) Regulations as six hours are worked. If the worker then drives for a further half hour, he will have triggered the 45-minute break requirement under the Drivers' Hours Rules by doing four and a half hours' cumulative driving. The worker will therefore be entitled to a further 15-minute break, bringing his total daily break to 45 minutes.
As long as the break requirements are fulfilled, these can be taken during periods of availability as periods of availability are not considered working time for the purpose of the Regulations. Equally, and for the same reason, when calculating whether there is a requirement for a break under the Regulations (or the EU Drivers' Hours Rules) periods of availability should not be counted towards the total hours worked.
Record keeping
Employers must inform workers of the requirements of the Road Transport (Working Time) Regulations and provide details of any relevant collective agreements. Employers must also keep records that are sufficient to show that the Regulations are being complied with. These records must be kept for a minimum of two years. The Regulations do not specify exactly what information should be kept on record but an employer will need to consider what information will be necessary to show that weekly and nightly working limits are being adhered to. For many employers in the sector this will involve use of information from tachographs, although employers should remember that although the legislation relating to tachograph records requires that they are retained for only one year, records kept for the purposes of the Road Transport (Working Time) Regulations must be kept for two years. Employers should also ensure that the recording of information using a tachograph is carried out in such a way that it is possible to clearly differentiate between periods of availability, which do not count towards working time, and periods spent carrying out work other than driving, which do count towards working time. Employers will also need to make provision for the recording of working time where a mobile worker does not use a tachograph, for example because he or she is a mobile worker under the Regulations but not a driver.
Mobile workers must also be asked to provide full details, in writing, of any other time spent working for another employer.
Next week's article will answer questions on the new Road Transport (Working Time) Regulations.
Sue Nickson is International Head of Employment at Hammonds (Sue.Nickson@Hammonds.com)
Further information on Hammonds Solicitors can be accessed at www.hammondsuddardsedge.com
