19 April 2012 #Employment
To accord with the EC Road Transport Directive, self-employed drivers will be become subject to the 48 hour average working week and the other provisions of the Road Transport (Working Time) Regulations 2005 from 11 May 2012. There had been a proposal to withdraw self-employed drivers from the scope of the Directive but this proposal was defeated in the European Parliament in 2010. The UK Government expressed its extreme disappointment at that outcome but it now has to implement the Directive.
The 2005 regulations have been in place for 7 years now and the amendment regulations coming into force on 11 May 2012, put self-employed drivers on a level playing field with employed drivers for the first time and removes a key advantage of working self-employed as driver in the haulage industry and of engaging self- employed haulage contractors.
The 2005 Regulations at present apply to mobile workers in road transport, such as drivers, crew and other travelling staff, where the EU drivers’ hours rules (or “Taco Regs”) apply. The EU drivers’ hours rules apply where the vehicle is more then 3.5 tonnes and to certain passenger vehicles. These rules restrict time driving at the wheel to 56 hours a week and to 90 hours during two consecutive weeks.
However, until the 2005 Regulations, there was no restriction on total working hours (i.e. including non driving duties), which became a total maximum of 60 hours a week and an average, over a 17 week reference period, of 48 hours a week. There are provisions under the amendment regulations which allow self-employed drivers to apply a 26 week reference period, which employed drivers can do under a collective or workforce agreement.
These restrictions on working hours will now apply to self-employed drivers from 11 May 2012. Importantly, unlike the Working Time Regulations 1998, the 2005 Regulations do not permit any kind of opt out from the 48 hour average working week.
Although the strict requirements under the drivers’ hours rules concerning breaks for drivers will already apply to self-employed drivers, a 45 minute break after 4.5 hours driving, care will have to be taken to ensure that allowing for non driving working time, drivers take a break after 6 hours working, including non driving time.
The enforcement agency, VOSA, has indicated that it will apply a light touch to enforcement for self-employed drivers for the first six months after 11 May 2012. However, taking early advice is recommended.