At a meeting last week, a senior representative from the DVSA informed the audience that Officers of the DVSA would soon start prosecuting drivers who took Regular Weekly Rest periods, in their vehicles, when not at base.
So, if we look at this issue, is it as clear as the DVSA make out? In our opinion, it’s not – well not quite!
The relevant legislation in relation to these points is: Article 8(8) of EC 561/2006 which actually says:
8(8) Where a driver chooses to do this, daily rest periods and reduced weekly rest periods away from base may be taken in a vehicle, as long as it has suitable sleeping facilities for each driver and the vehicle is stationary.
So, on first glance, the Regulations do not say what a Driver can’t not do, only what they “can” or “may” do.
Most regulations will usually say “It will be an offence to / Fail to conform to” and the like and the EC Drivers hours rules often use the terms “may be extended to / must / at most”. It would have been different had 8(8) said “Regular Weekly Rest periods may not be taken in the vehicle when away from base” – as this creates an offence with the strong implication that Reduced Weekly Rest periods are exempt from the rule.
As 8(8) currently stands, it almost seems that it is the exemption to the Rule that has been written down, rather than the rule / regulation that must be adhered to.
In February this year, following a legal dispute in Belgium, the European Court, ruled on by that well known Bulgarian advocate – Evgeni Tanchev, decided that if the regulation had wished to bring “Regular Weekly Rests” into 8(8) it would have said so, hence the infringement is created. This would now appear to have been firmed up by the EU Mobility Package on Road Transport from May 2017. This package also says that suitable accommodation is not the cab and has to be paid for by the Operator – so sleeping in a tent or sleeping bag under the truck is a non starter!
Perhaps not surprisingly there is contradiction with his view. In the latest directive from the EC regarding ranking of Drivers Hours Infringements as “Most Serious / Very Serious / Serious” (Commission Regulation (EU) 2016/403), breaching regulation 8(8) does not even appear and a search for the word “base” returns a negative result.
Both references in that Document refer to either “less than 45” or “less than 24”. There is no reference to taking “more than 45” which, as far as we can see, would be needed to prosecute this offence. Hence the planned amendment in the Mobility package – to remove the ambiguity!!! So it would appear that the EU almost tacitly accept that there is a problem enforcing it at the moment.Enforcement officers in France have been issuing fines in the region of Euros 1800 – that may not surprise many UK hauliers.
So that’s the legal bit – how about practicalities?
There is also a significant issue as regards Enforcement. This “infringement” would be historic by its very nature. When the DVSA examine a drivers records at the roadside, every period of Weekly Rest above 45 hours would become a potential offence: every single one. It would require a possibly significant dialogue between the TE and driver to establish what was an offence and what was not.
If that Driver cannot speak English, this throws up even more problems.
This of course ignores another major issue in that, currently, Digital Tachographs do not give specific locations (yes we know about the Claims from Continental/ VDO). “Sorry officer I was sleeping in my truck at the base”.
So are there any other issues, say from a logical or practical perspective
Let’s say that Jaques is an owner Driver who starts work at 06:00 every Monday and finishes, religiously, at 06:00 every Saturday. He therefore has 48 hours Weekly Rest, every weekend – he never reduces. So, as a break from his normal routine, he comes to the UK and he misses his Ferry back to France. So Jaques, decides to take his Regular Weekly Rest period, starting at 06:00 on the Saturday, in GB, in his cab. His Ferry is due to leave at 07:00 on the Monday morning with a potential 49 hours off.
At 06:30, whilst still on the Rest period, he is checked by the DVSA and prosecuted for taking a Regular Weekly Rest period, in his cab, away from base. He is being prosecuted, in effect, for taking too much rest!
So, the next month, exactly the same happens again but, on this occasion, Jaques deliberately cleans his number plates on the Sunday morning and correctly enters 5 minutes of OTHER WORK onto the Tachograph. He is therefore interrupting the Regular Weekly rest period and therefore is now complying with the law as he will have recorded at least 1 and possibly even 2 reduced Weekly Rest periods. The fact that he would take a 45 in the next “Fixed Week” is no inconvenience to him as he always does that. So he complies with the law but not the spirit of the law!
What happens in a similar situation when a Driver fully intends being compliant by taking less than 45 hours but oversleeps?
Forgetting about Drunk in Charge, what if Jaques decides to take a couple more hours off which would take him over the 45 hour figure – just to make sure he was under the limit. Is he forced to drive off in order to comply with 8(8) and risk being over the limit?
The intention of 8(8) is relatively clear and its to make sure that Drivers are not exploited to the fact that they are always away from home on the longer weekly rest period and away from their families. Cabotage covers the other point most people think that 8(8) is there for.
Like many EU / EC regulations, 8(8) is poorly written and in its current form could well be open to challenge.