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STATUTORY INSTRUMENTS


2005 No. 639

TRANSPORT

The Road Transport (Working Time) Regulations 2005

  Made 10th March 2005 
  Laid before Parliament 14th March 2005 
  Coming into force 4th April 2005 

The Secretary of State, being a Minister designated [1] for the purposes of section 2(2) of the European Communities Act 1972[2] in relation to measures relating to the organisation of working time, in exercise of the powers conferred upon him by that provision, hereby makes the following Regulations:

Citation, commencement and extent
     1.  - (1) These Regulations may be cited as the Road Transport (Working Time) Regulations 2005 and shall come into force on 4th April 2005.

    (2) These Regulations extend to Great Britain only.

Interpretation
    
2. In these Regulations - 

and any reference to a worker's contract shall be construed accordingly;

Application
     3.  - (1) These Regulations apply to mobile workers who are employed by, or who do work for, undertakings established in a Member State of the European Union, and to whom paragraph (2) or paragraph (3) applies.

    (2) This paragraph applies to mobile workers who in the course of that employment or work drive, or travel in, vehicles

    (3) This paragraph applies to mobile workers, to whom paragraph (2) does not apply, who in the course of that employment or work drive, or travel in, vehicles

    (4) These Regulations do not apply to - 

Working time
     4.  - (1) Subject to paragraph (2) below, the working time, including overtime, of a mobile worker shall not exceed 60 hours in a week.

    (2) In any reference period which is applicable to his case, a mobile worker's working time shall not exceed an average of 48 hours for each week.

    (3) The reference periods which apply in the case of a mobile worker shall be - 

    (4) The reference period may be extended in relation to particular mobile workers or groups of mobile workers for objective or technical reasons or reasons concerning the organisation of work, by a collective agreement or a workforce agreement, by the substitution for 17 weeks of a period not exceeding 26 weeks in the application of paragraphs (2) and (3)(a) above.

    (5) A mobile worker's average weekly working time during a reference period shall be determined according to the formula - 

(A+B) ÷ C
where - 

    (6) In paragraph (5), "excluded hours" means hours comprised in - 

    (7) For the purposes of paragraph (5), the number of hours in a whole day shall be eight and the number of hours in a whole week shall be forty-eight.

    (8) An employer shall take all reasonable steps, in keeping with the need to protect the health and safety of the mobile worker, to ensure that the limits specified above are complied with in the case of each mobile worker employed by him.

     5. The times of breaks, rests and periods of availability shall not be included in the calculation of working time.

Periods of availability
    
6.  - (1) A period shall not be treated as a period of availability unless the mobile worker knows before the start of the relevant period about that period of availability and its reasonably foreseeable duration.

    (2) The time spent by a mobile worker, who is working as part of a team, travelling in, but not driving, a moving vehicle as part of that team shall be a period of availability for that mobile worker.

    (3) Subject to paragraph (4) a period of availability shall not include a period of rest or a break.

    (4) A period of availability may include a break taken by a mobile worker during waiting time or time which is not devoted to driving by the mobile worker and is spent in a moving vehicle, a ferry or a train.

Breaks
    
7.  - (1) No mobile worker shall work for more than six hours without a break.

    (2) Where a mobile worker's working time exceeds six hours but does not exceed nine hours, the worker shall be entitled to a break lasting at least 30 minutes and interrupting that time.

    (3) Where a mobile worker's working time exceeds nine hours, the worker shall be entitled to a break lasting at least 45 minutes and interrupting that period.

    (4) Each break may be made up of separate periods of not less than 15 minutes each..

    (5) An employer shall take all reasonable steps, in keeping with the need to protect the health and safety of the mobile worker, to ensure that the limits specified above are complied with in the case of each mobile worker employed by him.

Rest periods
    
8.  - (1) In the application of these Regulations, the provisions of the Community Drivers' Hours Regulation relating to daily and weekly rest shall apply to all mobile workers to whom they do not apply under that Regulation as they apply to other mobile workers under that Regulation.

    (2) An employer shall take all reasonable steps, in keeping with the need to protect the health and safety of the mobile worker, to ensure that those provisions are complied with in the case of each mobile worker employed by him, to whom they are applied by paragraph (1).

Night work
    
9.  - (1) The working time of a mobile worker, who performs night work in any period of 24 hours, shall not exceed 10 hours during that period.

    (2) The period of 10 hours may be extended in relation to particular mobile workers or groups of mobile workers for objective or technical reasons or reasons concerning the organisation of work, by a collective agreement or a workforce agreement.

    (3) Compensation for night work shall not be given to a mobile worker in any manner which is liable to endanger road safety.

    (4) An employer shall take all reasonable steps in keeping with the need to protect the health and safety of mobile workers to ensure that the limit specified in paragraph (1), or extended in accordance with paragraph (2), is complied with in the case of each mobile worker employed by him.

Information and records
    
10. An employer of mobile workers shall notify each worker of the provisions of these Regulations and the provisions of any collective or workforce agreement which is capable of application to that worker

    
11. An employer of a mobile worker shall

     12. A mobile worker shall, at the request of his employer under regulation 11(a), notify his employer in writing of time worked by the worker for another employer for inclusion in the calculation of the mobile worker's working time.

    
13.  - (1) The Secretary of State shall arrange for the publication, in such form and manner as he considers appropriate, of information and advice concerning the operation of these Regulations.

    (2) The information and advice shall be such as appear to him best calculated to enable employers and workers affected by these Regulations to understand their respective rights and obligations.

Agency workers not otherwise mobile workers
    
14.  - (1) This regulation applies in any case where an individual ("the agency worker") - 

    (2) In a case where this regulation applies, the other provisions of these Regulations shall have effect as if there were a contract for the doing of the work by the agency worker made between the agency worker and  - 

Individual carrying on trade or business
    
15.  - (1) This regulation applies in any case where an individual, who is not a self-employed driver, drives a vehicle described in regulation 3(1)(b) for the purpose of a trade or business carried on by him.

    (2) Where this regulation applies - 

    (3) This regulation shall not apply in any case where regulation 14 applies.

Enforcement
    
16.  - (1) It shall be the duty of the Secretary of State to enforce the requirements of these Regulations.

    (2) Schedule 2 shall apply in relation to the enforcement of the relevant requirements.

    
17.  - (1) Any person who fails to comply with any of the relevant requirements shall be guilty of an offence.

    (2) The provisions of paragraph (3) shall apply where an inspector is exercising or has exercised any power conferred by Schedule 2.

    (3) It is an offence for a person  - 

    (4) Any person guilty of an offence under paragraph (1) shall be liable - 

    (5) A person guilty of an offence under paragraph (3)(b) or (d) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

    (6) A person guilty of an offence under paragraph (3)(c) shall be liable - 

    (7) A person guilty of an offence under paragraph (3)(a),(e) or (f) shall be liable - 

    (8) The provisions set out in regulations 18 to 22 shall apply in relation to the offences provided for in paragraphs (1) and (3).

Offences due to fault of other person
    
18. Where the commission by any person of an offence is due to the act or default of some other person, that other person shall be guilty of the offence, and a person may be charged with the conviction of the offence by virtue of this regulation whether or not proceedings are taken against the first-mentioned person.

Offences by bodies corporate
    
19.  - (1) Where an offence committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

    (2) Where the affairs of a body corporate are managed by its members, the preceding paragraph shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

Restriction on institution of proceedings in England and Wales
    
20. Proceedings for an offence shall not be instituted in England or Wales except by an inspector or by, or with the consent of, the Director of Public Prosecutions.

Prosecution by inspectors
    
21.  - (1) If authorised in that behalf by the Secretary of State an inspector may prosecute proceedings for an offence before a magistrates court even though the inspector is not of counsel or a solicitor.

    (2) This regulation shall not apply in Scotland.

Power of court to order cause of offence to be remedied
    
22.  - (1) This regulation applies where a person is convicted of an offence in respect of any matter which appears to the court to be a matter which it is in his power to remedy.

    (2) In addition to or instead of imposing any punishment, the court may order the person in question to take such steps as may be specified in the order for remedying the said matters within such time as may be fixed by the order.

    (3) The time fixed by an order under paragraph (2) may be extended or further extended by order of the court on an application made before the end of that time as originally fixed or as extended under this paragraph, as the case may be.

    (4) Where a person is ordered under paragraph (2) to remedy any matters, that person shall not be liable under these Regulations in respect of that matter in so far as it continues during the time fixed by the order or any further time allowed under paragraph (3).



Signed by authority of the Secretary of State for Transport


David Jamieson
Parliamentary Under Secretary of State

10th March 2005



SCHEDULE 1
Regulation 2


WORKFORCE AGREEMENTS


     1. An agreement is a workforce agreement for the purposes of these Regulations if the following conditions are satisfied-

     2. For the purposes of this Schedule - 

     3. The requirements concerning elections referred to in paragraph 2 are that - 



SCHEDULE 2
Regulation 16(2)


ENFORCEMENT


Appointment of inspectors
     1.  - (1) The Secretary of State may appoint as inspectors (under whatever title he may from time to time determine) such persons having suitable qualifications as he thinks necessary for carrying into effect these Regulations, and may terminate any appointment made under this paragraph.

    (2) Every appointment of a person as an inspector under this paragraph shall be made by an instrument in writing specifying which of the powers conferred on inspectors by these Regulations are to be exercisable by the person appointed; and an inspector shall in right of his appointment under this paragraph be entitled to exercise only such of those powers as are so specified.

    (3) So much of an inspector's instrument of appointment as specifies the powers which he is entitled to exercise may be varied by the Secretary of State.

    (4) An inspector shall, if so required when exercising or seeking to exercise any power conferred on him by these Regulations, produce his instrument of appointment or a duly authenticated copy thereof.

Powers of inspectors
     2.  - (1) Subject to the provisions of paragraph 1 and this paragraph, an inspector may for the purpose of carrying into effect these Regulations exercise the powers set out in sub-paragraph (2).

    (2) The powers of an inspector are the following, namely - 

    (3) No answer given by a person in pursuance of a requirement imposed under sub-paragraph (2)(e) shall be admissible in evidence against that person or the husband or wife of that person in any proceedings.

    (4) Nothing in this paragraph shall be taken to compel the production by any person of a document of which he would on grounds of legal professional privilege be entitled to withhold production on an order for discovery in an action in the High Court or, as the case may be, an order for the production of documents in an action in the Court of Session.

Improvement notices
     3. If an inspector is of the opinion that a person - 

he may serve on him a notice (in this Schedule referred to as "an improvement notice") stating that he is of that opinion, specifying the provision or provisions as to which he is of that opinion, giving particulars of the reasons why he is of that opinion, and requiring that person to remedy the contravention or, as the case may be, the matter occasioning it within such period (ending not earlier than the period within which an appeal against the notice can be brought under paragraph (6)) as may be specified in the notice.

Prohibition notices
     4.  - (1) This paragraph applies to any activities which are being, or are likely to be, carried on by or under the control of any person, being activities to or in relation to which any of these Regulations apply or will, if the activities are so carried on, apply.

    (2) If as regards any activities to which this paragraph applies an inspector is of the opinion that, as carried on by or under the control of the person in question, the activities involve or, as the case may be, will involve a risk of serious personal injury, the inspector may serve on that person a notice (in this Schedule referred to as "a prohibition notice").

    (3) A prohibition notice shall -

    (4) A direction contained in a prohibition notice in pursuance of sub-paragraph (3)(d) shall take effect - 

Provisions supplementary to paragraphs 3 and 4
     5.  - (1) In this paragraph "a notice" means an improvement notice or a prohibition notice.

    (2) A notice may (but need not) include directions as to the measures to be taken to remedy any contravention or matter to which the notice relates; and any such directions -

    (3) Where an improvement notice or prohibition notice which is not to take immediate effect has been served -

Appeal against improvement or prohibition notice
     6.  - (1) In this paragraph "a notice" means an improvement or prohibition notice.

    (2) A person on whom a notice is served may within 21 days from the date of its service appeal to an employment tribunal; and on such an appeal the tribunal may either cancel or affirm the notice and, if it affirms it, may do so either in its original form or with such modifications as the tribunal may in the circumstances think fit.

    (3) Where an appeal under this paragraph is brought against a notice within the period allowed under the preceding sub-paragraph, then -

    (4) One or more assessors may be appointed for the purposes of any proceedings brought before an employment tribunal under this paragraph.

Restrictions on disclosure of information
     7.  - (1) In this paragraph  - 

    (2) Subject to the following sub-paragraph, no relevant information shall be disclosed without the consent of the person by whom it was furnished.

    (3) The preceding sub-paragraph shall not apply to -

    (4) A person to whom information is disclosed in pursuance of sub-paragraph (3) shall not use the information for a purpose other than -

    (5) A person shall not disclose any information obtained by him as a result of the exercise of any power conferred by paragraph 2 (including in particular any information with respect to any trade secret obtained by him in any premises entered by him by virtue of any such power) except -

In this sub-paragraph "the relevant consent" means, in the case of information furnished in pursuance of a requirement imposed under paragraph 2, the consent of the person who furnished it, and, in any other case, the consent of a person having responsibilities in relation to the premises where the information was obtained.

    (6) Notwithstanding anything in sub-paragraph (5) an inspector shall, in circumstances in which it is necessary to do so for the purpose of assisting in keeping persons (or the representatives of persons) adequately informed about matters affecting their health, safety and welfare or working time, give to such persons or their representatives the following descriptions of information, that is to say  - 

and, where an inspector does as aforesaid, he shall give the like information to the employer of the first-mentioned persons.

    (7) Notwithstanding anything in sub-paragraph (5), a person who has obtained such information as is referred to in that sub-paragraph may furnish to a person who appears to him to be likely to be a party to any civil proceedings arising out of any accident, occurrence, situation or other matter, a written statement of the relevant facts observed by him in the course of exercising any of the powers referred to in that sub-paragraph.



EXPLANATORY NOTE

(This note is not part of the Regulations)


These Regulations implement the provisions of Council Directive 2002/15/EC concerning the organisation of the working time of persons performing mobile road transport activities.

The Regulations prescribe the maximum weekly working time and maximum average weekly working time of mobile workers who, in the course of their work, drive or travel in goods or passenger vehicles which are covered by the Community Drivers' Hours (Council Regulation (EEC) 3820/85) and they prescribe the reference periods over which such time is to be calculated .

They also regulate periods of availability, breaks, rest periods and night work.

They require employers to keep records of time worked and to provide copies.

They make it an offence to fail to comply with their requirements and provide for enforcement.

A Regulatory Impact Assessment has been produced and a copy placed in the library of both Houses of Parliament. Copies may be obtained from the Department for Transport, Great Minster House, 76 Marsham Street, London SW1P 4DR. Alternatively copies can be obtained from the Department's website which is at www.dft.gov.uk

A transposition note has been prepared and copies may be obtained from the Department for Transport, 76 Marsham Street, London SW1P 4DR.


Notes:

[1] S.I.1997/1174back

[2] 1972 c.68.back

[3] Cmnd 7401 and Cmnd 8572.back

[4] 1992 c.52.back

[5] O.J. No.L370, 31.12.1985, p.1.back

[6] S.I.1986/1456; the relevant amending instrument is S.I.1987/805.back

[7] S.I.1998; the relevant amending instrument is S.I. 2001/3256.back



ISBN 0 11 072502 6


 © Crown copyright 2005

Prepared 17 March 2005


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