Imminent changes to rules on operator licensing for hire or reward operations.

The rules on operator licensing are based on an existing EC Directive that will be replaced by a new EC Regulation with effect from 4 December 2011. This Regulation makes a number of changes to the rules on operator licensing for transport managers and hire and reward operations.

This article is primarily aimed at Skip Operators and I won’t attempt to cover every aspect of the EC Regulation but will draw attention to some noteworthy changes, particularly for transport managers. Whilst some in the waste industry operate vehicles on a ‘restricted’ licence basis and do not need a nominated transport manager many need the flexibility of a hire or reward ‘standard’ licence and as a result they will be directly affected by these changes.

The aim is for there to be a uniform, modern and effective set of rules across Europe that promotes fair competition. However, I’m not sold on this simply because fair competition through uniform regulation only works if there is consistency in enforcement. If all member states enforce the regulations in the same way as here in the UK then all right. However that simply isn’t the case and here in the UK we could certainly teach some EU Members a thing or two about enforcement; and so therein lies the trouble with regulation in the UK.

Since September 2011 questionnaires have been raining down on operators. This obligatory census heralded the first hint many will have had of the changes in the rules concerning hire or reward operations and transport managers.

The questionnaire is all about intelligence gathering albeit packaged innocuously as a means of ensuring details of the nominated transport managers are up to date and to gather some extra information about them. The reality is information on transport managers and operators is going to be shared between EU Member States. Is there anything to be done about it? No, absolutely nothing, unless you decide to operate outside the system which would of course be illegal or you downgrade to a restricted operation. Again, the EU Regulation only applies to hire or reward operators so non-hire or reward (Restricted) operators are spared.

Behind all this intelligence gathering lies the new power for a Traffic Commissioner to direct regulatory action against a transport manager and to potentially declare him or her ‘unfit’. This declaration of unfitness would be entered into the UK national register of operators and the declaration would be shared with licensing authorities in other Member States. In other words an EU wide ban would be imposed until the transport manager’s repute was restored.

Transport managers are to be categorised as ‘internal’ or ‘external’. An ‘internal’ transport manager will have a genuine link to the operator being a full or part time employee, director or owner. An ‘external’ transport manager will be a person under contract to an operator on a part time basis and who will only be permitted to work for a maximum of 4 operators with a combined total fleet of 50 vehicles (although Traffic Commissioners could set lower limits in individual cases). This requirement could really bite those operators who hire in consultants as their nominated transport managers. Imagine, overnight, your ‘external’ transport manager becoming non compliant because of a breach of the 4/50 rule!

National CPC will be abolished from 4 December 2011. All new examinations will be required to test knowledge of both national and international operations However, national CPCs issued before that date will remain valid indefinitely and holders wishing to update to an international CPC will continue only to be required to pass an additional international module of the CPC examination.

The rules regarding grandfather rights are changing too. Grandfather rights will only be granted to individuals providing proof that they have ‘continuously managed’ a road haulage undertaking or a road passenger transport undertaking for the period of 10 years before 4 December 2009. New claims for grandfather rights will not be permitted after 4 December 2013. An operator will need to ensure that their transport manager is able to provide evidence of his or her exemption. Transport managers who are currently on an operator licence through grandfather rights will maintain those grandfather rights and will be issued with new certification automatically (i.e. a new 'acquired rights' certificate). In addition, the Office of the Traffic Commissioners will keep a master list of acquired rights holders.

One major irritant of the new rules (only applicable to hire and reward) will be the requirement to be able to prove at all times that the operator has at least one vehicle specified on the licence. Prior to this change it was permissible for an operator to hold a licence yet have no vehicles in possession. Why change the rules? I suspect some perceived abuse of the licensing system lies behind this manoeuvring. Informal arrangements to hire or borrow a vehicle will not be sufficient and operators will need to either own the vehicle or it will need to be held under a hire purchase, hire / leasing or other formal arrangement. Operators will be required to self declare that they meet this requirement and if they are found to be in breach they will be liable to enforcement action. It appears Traffic Commissioners may exercise their discretion to allow a period of grace of up to 6 months for the operator to demonstrate compliance.

Finally for hire or reward operations the small trailer exemption is abolished. The exemption is still applicable to restricted operations so that a trailer with an unladen weight not exceeding 1020 kg won’t need to be included when calculating the 3.5T combination plated weight limit.
If you are worried or concerned about anything you have read in this article or you need help or assistance with your operator licence please get in touch.

John Dyne LL. B MinstTA
Dyne Solicitors Limited
Specialists in regulatory law.

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