Implementing EC Regulation 1071/2009 Rules Concerning the Occupation of Road Transport Operator This is the response of the Royal Society for the Prevention of Accidents (RoSPA) to the Department for Transport s consultation paper, Implementing EC Regulation 1071/2009 Rules Concerning the Occupation of It has been prepared following consultation with RoSPA s National Road Safety Committee. Chapter 1 Transport Managers Q.1 Are the new definitions of internal and external transport manager clear? Is the 4/50 rule for external transport managers understood? RoSPA understands and agrees with the definition of an internal transport manager which is a person with the required specialist knowledge ( professional competence ) to run a road transport business safely and effectively. Their professional competence must be proved by passing an examination (a Certificate of Professional Competence or a third-party equivalent), or via grandfather rights. They must effectively and continuously perform their transport manager role, have a genuine link to the operator (eg, be a full or part-time employee, director or owner) and be resident in a European Union country. The new Regulation will allow an internal transport manager to work part-time for more than one operator, and so be named on more than one O-licence. RoSPA agrees that in such cases, the Traffic Commissioner needs to be satisfied that the person has a genuine link to each operator and satisfies the requirement of effective and continuous management. RoSPA understands and agrees with the definition of an external transport manager, who would be hired on a part-time basis by an Operator (e.g. as a consultant transport manager) under a contract. The external transport manager must have the required specialist knowledge ( professional competence ) to run a road transport business safely and effectively, be proved by a Certificate of Professional Competence or equivalent) or via grandfather rights. They must have effective and continuous management responsibility for the transport activities of the operator, be of good repute and be resident in a European Union country. They must also have a contract with the operator that specifies the tasks they perform as transport manager. External transport managers may only work for a maximum of 4 operators with a combined maximum total fleet of 50 vehicles. The new Regulation will allow Member States to lower the 4/50 maximum limit and the Department for Transport intends to allow Traffic Commissioners to set lower limits in individual cases. There is a risk that an external transport manager who works for too many operators or is responsible for too many vehicles would not be able to devote sufficient attention to each one, or would face conflicts of interest due to competing demands from different operators. Therefore, RoSPA supports the maximum limits and the ability of Traffic Commissioners to set lower limits when they feel it is necessary. 1
Chapter 1 Transport Managers Q.2 Do you have any views on the list of core topics for the external transport manager contract at Annex A of Chapter 1? Clearly, the details of employment contracts and job descriptions are a matter for individual operators and the consultants they hire. However, the new Regulation will broadly set out what such contracts should cover, and the DfT have produced a suggested list of core topics. RoSPA believes that the list of core topics would be helpful to operators and external transport managers. It appears to be a comprehensive list, and if anything, highlights the fact that the range of duties an external transport manager will need to fulfill are too extensive for them to be contracted to many different operators. This emphasises the need for the limits on the number of operators and vehicles an external transport manager can cover. Hence, it is important that the contract specifies the amount of time which the transport manager will spend in carrying out his or her duties for the operator on each licence, and the activities for which they will take primary responsibility. It will be important for the number and content of contracts held by each operator and external transport manager to be monitored, so that the 4/50 limits, or lower limits if set by a Traffic Commissioner, are not breached. RoSPA believes the suggested list of topics covers the correct activities. Chapter 1 Transport Managers Q.3 Do you agree that an internal transport manager should have the flexibility to work, on a part-time basis, as an external transport manager? The new Regulation allows Member States to decide whether an internal transport manager of one operator could also work as an external consultant transport manager for other operators. The Department for Transport propose to adopt this as it could offer a useful flexibility, particularly for small businesses. An individual working as both an internal and external transport manager would be subject to a maximum limit of working for four operators with a combined maximum of fifty vehicles. Traffic Commissioners would have discretion to lower the 4/50 figures where they considered this was necessary. Although, in general we do not object to this proposal, the main risk that RoSPA sees with it is that a transport manager may be overloaded with work, and unable to devote sufficient attention to each operator and vehicle for which they are responsible. This is similar to an external transport manager, but with an individual who is also acting as an internal transport manager for one operator, there be an additional risk that they are more committed to that operator to the detriment of the others. 2
Chapter 1 Transport Managers Q.4 Are the new arrangements for disqualifying transport managers clear? As RoSPA understands it, the new Regulation will allow Traffic Commissioners to take direct action against transport managers, a power they do not have under existing EC or domestic legislation, if, for example, they determine that an individual transport manager no longer meets the requirements of good repute or professional competence. In such cases, the Traffic Commissioner must declare that transport manager to be unfit. This would remain in place until a Traffic Commissioner determined that the professional competence or good repute requirements had been restored. A Traffic Commissioner will determine the rehabilitation measures that the transport manager would need to comply with before fitness could be restored. Under the new Regulation, the declaration of unfitness must also be entered into the UK national register of operators and shared with licensing authorities in other Member States. This means that if a transport manager is declared unfit in Great Britain, their Certificate of Professional Competence would not be valid in any other Member State either, and vice versa. RoSPA believes this is sensible, but will require monitoring in Britain to ensure that no one who has been declared unfit elsewhere in Europe gains employment as a transport manager in Britain. The DfT s proposals for enabling Traffic Commissioners to satisfy themselves that operators and transport managers are complying with the rules appear to be reasonably sufficient, without being too bureaucratic. Both the transport manager and the operator will be required to sign-up to their individual responsibilities and directly declare their competence, good repute and other information on the O-licence application form. The transport manager will also be required to state whether they are employed as an internal or external transport manager and whether they are acting as a transport manager on any other existing O- licence. External transport managers will be required to provide a copy of their contract with the licence application, and to sign a formal declaration of core responsibilities: t to break the 4/50 rule. To have a contract that specifies their responsibilities To act solely in the interests of the operator engaging him and not in the interest of any third party These requirements would be on top of the existing requirement that the Traffic Commissioner should be satisfied that each transport manager is engaged for sufficient time to ensure effective and continuous management of the transport business. However, for internal transport managers, the DfT has decided that the new Regulation does not require Traffic Commissioners to automatically request proof of genuine link as part of the application process but only if they specifically ask for such evidence, either at application stage or any time thereafter. While this may simplify the administration burden, we are not clear whether it is likely to result in an increase of internal transport managers who do not have a genuine link with their operators. 3
Chapter 1 Transport Managers Q.5 Do you have any views on the guidance at Annex B of Chapter 1 for deciding whether an individual is an internal or external transport manager? To implement the new Regulation, Traffic Commissioners will need to write to all operators that are subject to the Regulation asking them to confirm the name(s) and details of their transport managers and whether they are employed on an internal or external basis. To aid this process, the DfT has produced suggested guidelines for the criteria to apply when deciding whether a transport manager is internal or external. RoSPA agrees that such guidelines are helpful as it is important the Traffic Commissioner to know whether each transport manager working for an operator is directly employed by them or self-employed as an independent contractor so that they can ensure the rules are being followed and safety requirements are met. Chapter 1 Transport Managers Q.6 Are there any other areas or issues where you feel further explanations would be useful? 4
CHAPTER 2 FINANCIAL STANDING Chapter 2 Financial Standing Q.1 Do you agree that the no further guidance is necessary on completing certified annual accounts? RoSPA has no comments to make on this issue. Chapter 2 Financial Standing Q.2 Do you consider that new applicants providing a certified opening balance is a proper demonstration of financial standing for the first year of trading? RoSPA has no comments to make on this issue. Chapter 2 Financial Standing Q.3 Do you agree that Traffic Commissioners should allow financial standing to be demonstrated via a financial guarantee? Are there any other forms of guarantee that should be added to the list at Annex A of Chapter 2? RoSPA has no comments to make on this issue. Chapter 2 Financial Standing Q.4 Is the guidance clear at Annex B of Chapter 2 on who is properly qualified to certify annual accounts? RoSPA has no comments to make on this issue. 5
CHAPTER 3 - CERTIFICATES OF PROFESSIONAL COMPETENCE, THIRD PARTY QUALIFICATIONS AND GRANDFATHER RIGHTS Chapter 3 CPCs, Third-Party Qualifications and Grandfather Rights Q.1 Do you agree that the Department should continue to allow existing third-party qualifications to provide an exemption from the CPC examination? RoSPA believes that the prime method of proving professional competence should remain the Certificate of Professional Competence (CPC), and we agree that, as required by the new Regulation, that all new CPC examinations and their third-party equivalents should test knowledge in both national and international operations. This means that the national CPC will be abolished from 4 December 2011. We agree that national CPCs issued before the new Regulation comes into force should remain valid indefinitely in that member state and those holders wishing to update to an international CPC will only be required to pass an additional international module of the CPC examination. We are content that the changes to the content of the specific subject areas required to be examined in the new Regulation are very similar to the existing requirements, and quite rightly include updated references to specific legislation on drivers hours and dangerous goods and includes a requirement that the CPC holder must be able to implement procedures to properly secure goods. RoSPA also sees no reason why only a single awarding body should be appointed to arrange the examination, and support the proposal to allow more than one body to run examinations and award the CPC subject, of course, to each body passing a formal approval process to satisfy the Department that they are able to run the CPC examination properly. Under the new Regulation, individual member states may continue to allow third-party qualifications to provide an exemption from the CPC examination. RoSPA supports the DfT s proposal to allow those with an existing third-party exemption to continue to be able to use the exemption, but not to allow any new third-party exemptions after December 2011 - as the exempting bodies can be fully integrated into the CPC system. This means that the only way for new transport managers to prove professional competence after December 2011 will be via a CPC examination. 6
Chapter 3 CPCs, Third-Party Qualifications and Grandfather Rights Q.2 Should the Department continue to offer grandfather rights as an exemption from the need for exam qualification? RoSPA agrees with the DfT proposal to continue to allow the grandfather rights exemption from the need for qualification by examination for national and international licences, given that the new Regulation allows individual member states to do so. The new regulation means grandfather rights can only be granted to those individuals who can prove that they have continuously managed a road haulage undertaking or a road passenger transport undertaking in one or more Member States for the period of 10 years before 4 December 2009. This should ensure that individuals making use of the grandfather rights exemption have current knowledge and experience, which is important. Chapter 3 CPCs, Third-Party Qualifications and Grandfather Rights Q.3 Do you agree with the two tests in paragraph 10 as a means of proving an entitlement to grandfather rights? If not, what alternative tests would you propose and why? Given the unfortunate fact that Traffic Commissioners do not keep historical records of what operators each transport manager has worked for in the past and for how long, RoSPA accepts that the proposals for the ways in which applicants for grandfather rights can prove that they have continuously managed a road haulage undertaking or a road passenger transport undertaking for the 10 years before 4 December 2009 are necessary. The two methods seem reasonable and sensible: the applicant must prove that they have been listed as a transport manager on the same O-licence continuously for ten years before 4 December 2009, or those who cannot do so, must provide signed declarations from previous operators that they have worked for (and been listed on the O-licence) as a transport manager, covering the required ten-year period. 7
Chapter 3 CPCs, Third-Party Qualifications and Grandfather Rights Q.4 Do you agree that the window to claim grandfather rights should not extend beyond December 2013? If not, what date would you propose and why? RoSPA agrees that, while allowing grandfather rights exemptions, it is very important to ensure that those claiming it have the required up-to-date knowledge to undertake transport operations in a safe and professional manner. Therefore, we support the DfT proposal not to allow new claims of grandfather rights beyond 4 December 2013 on the basis that it is likely that, after this date, applicants knowledge will not be up to date, and so other evidence of professional competence (by examination) is necessary. Chapter 3 CPCs, Third-Party Qualifications and Grandfather Rights Q.5 Which of the two options in paragraph 14 of Chapter 3 would you prefer for transport managers providing proof to a prospective employer that they have grandfather rights? Transport managers who qualify for grandfather rights need to prove to their employer (and subsequent employers) that they have this exemption. The Department believes that two options are available: a) Traffic Commissioners keep a master list and each employer checks with them when a transport manager applies for a job with them; or b) Traffic Commissioners keep a master list but also issue each qualifying transport manager with a "grandfather rights" certificate (up to 4 December 2013). RoSPA prefers option (b) as it provides two, rather than one, methods of proof. We believe that operators should be required to check the Traffic Commissioners master list and do not think this would be a significant burden. 8
Chapter 3 CPCs, Third-Party Qualifications and Grandfather Rights Q.6 Do you agree that the additional derogations listed in paragraph 17 should not be pursued? While RoSPA does not necessarily believe that CPC Operators who have been regularly operating should be required to re-train at 10-year intervals, we can see some value in a requirement for operators who have not been active for a period of time being required to retrain, and/or re-sit the CPC Operators Exam. We believe that Traffic Commissioners should have the power to require individual transport managers to re-sit CPC examinations where they feel this is necessary, for example in order to re-qualify as a fit person after a period of disqualification. 9
CHAPTER 4 ESTABLISHMENT AND OTHER ISSUES Q.1 Are there any other details that operators would wish to provide, as an alternative to operating centre or correspondence address? RoSPA has no comment on this issue. Q.2 Does the abolition of the use of PO Box addresses and third-party administrators to prove establishment cause specific problems? How might they be resolved? RoSPA has no comment on this issue. Q.3 Is there any additional documentation that operators should be required to be kept at their specified premises? Like vehicle test certificates and registration documents, TM CPCs, driver licences, maintenance records, safety inspection programme, copies of prohibitions, lists of directors, driver rostas, driver defect reports, etc RoSPA has no comment on this issue, other than to say that we believe it is important that records are kept and are accessible to Traffic Commissioners when necessary. Q.4 Does the requirement to provide proof of possession of at least one vehicle cause problems? How might this be addressed? RoSPA has no comment on this issue. 10
Q.5 Do you agree that undertakings involved in road passenger transport services exclusively for non-commercial purposes or which have a main occupation other than that of road transport operator should remain outside the scope of the Regulation? If not, why? RoSPA agrees that the new Regulation should not be extended to these other groups as they are covered by other domestic systems, such as the Section 19 Permits system. In 2009, the DfT conducted a consultation on a Review of Designated Bodies for Section 19 Permits, although we are not sure whether any changes, such as the introduction of the proposed Designated Bodies Charter, have been introduced. Q.6 Do you agree that the maximum fine for operating a PSV without a valid O-licence should be increased from 2,500 to 5,000? RoSPA agrees that there is no justification for the fine for PSVs being half that of a similar fine for operating a goods vehicle. RoSPA believes that operating a PSV without a valid O-licence is a serious offence, and that anyone willing to do so, is more likely to take other risks in their operation, such as not complying with drivers hours regulations or ensuring the safe condition of their vehicles. Accidents involving PSVs are more likely to result in multiple casualties. Increasing the fine for PSVs to the same level as goods vehicle is fair and may increase the deterrent effect of illegal operation. Q.7 Should the maximum fine for PSV and goods vehicle operators not declaring a notifiable conviction be the same as for operating without an O-licence? RoSPA believes that the fines should be the same for goods vehicle operators and passenger vehicle operators, and increasing the level of the fine for both will act as a deterrent and encourage all operators to ensure they comply with the rules on notifying convictions to the Traffic Commissioners. 11
CHAPTER 5 NATIONAL REGISTERS Chapter 5 National Registers Q.1 Do you agree that until 31 December 2015 we should only include the most serious infringements as part of the national register requirement? Given the international nature of both goods and passenger transport, RoSPA is pleased that the new Regulation will place greater emphasis on improving the co-operation between the licensing authorities in each member state and seek to improve the flow of information between them about operators and transport managers. As part of this, the Regulation requires each member state to establish an electronic national register, with a mandatory minimum data set, of all their licensed operators and transport managers, by 4 December 2011 and to ensure it is connected to the registers of other member states by 31 December 2012, so that individual member states can share that information with licensing authorities in other member states. The new Regulation requires the number, category and type of serious infringements (such as breaches of drivers hours, working time or tachographs rules, operating unsafe or seriously overloaded vehicles) that have resulted in a conviction or penalty during the last 2 years to be included in the national register. This data is not currently captured electronically by Traffic Commissioners. However, it allows Member States until 31 December 2015 to include other serious infringements in their national register. The DfT intend to make use of this extended deadline due to the amount of work required to establish the UK national register and interconnect it with Europe. RoSPA is not in a position to judge the level of work and cost that would be required to ensure that all serious offences are included in the register from the outset, and therefore, accept that for practical reasons the inclusion of some serious offences needs to be delayed. Chapter 5 National Registers Q.2 Do you have any comments on our interpretation of the data required to be held on the UK national register, as set out in the Annex to that chapter? ANNEX 3 DRAFT IMPACT ASSESSMENT Do you agree that the draft impact assessment accurately estimates expected costs and benefits from introducing these regulatory changes? RoSPA has no comment on the draft impact assessment. 12