The High Court is being asked to examine the law relating to uninterrupted breaks of at least forty five minutes after four and half hours driving. This has arisen because of the evolution of the transport industry in Ireland.
Article 7 of the Council Regulation 561/06 requires drivers of all heavy goods vehicles to take a mandatory period of forty five minutes break after four and half hours driving. As a European regulation it affects each member state and all drivers operating within the European Union. This provision has been brought into Irish law in the form of The European Communities (Road
Transport) (Working Conditions and Road Safety) Regulations 2008. The law is enforced by the Road Safety Authority hand in glove with the Traffic Corps of An Garda Siochana.
In recent times there has been a huge upsurge in the number of prosecutions of vehicles used in the provision of road maintenance and control. This arises because of the large number of
construction type vehicles which now populate our roads.
The Road Safety Authority are now very active in pursuing rigid and articulated tipper lorries throughout the country for breach of this particular provision.
Of particular concern to the owner operators and to drivers of such vehicles is the grey area of Local Authority owned vehicles being exempted from the driver hour regulations.
Article 5 of the Regulations of 2008 state that any vehicle that is used in connection with “… road maintenance and control” is exempt from the regulations. This means that any Local Authority
employee operating any vehicle concerning road maintenance and control is not covered by the Regulations and can drive in any one period far in excess of four and half hours.
The current contractual relationship with Local Authorities means that much of the work that involves road maintenance and control has now been subcontracted out to private contractors. In
many instances a main asphalt contractor is employed by the County Council on a tender basis. That contractor in turn will subcontract out the supply of asphalt to independent contractors and
one truck men. The original law read strictly against those operators is manifestly unfair. As currently read a Local Authority owned vehicle is exempt from the Regulations, but a private
contractor carrying out the same work is captured by the Regulations.
A further unfairness arises owing to the nature of the work involved.
The Courts have seen many examples in the recent past of private operators with tipper trucks who remain on the roadside for many hours with their load of asphalt. Given the nature of the
laying of the asphalt on the road, they must remain on site. Quite a lot of their down time involves crawling up and down roads while they wait for the tar to be laid. This is deemed for the
purpose of the regulations to be driving time, whereas in fact all they are doing is simply crawling up and down the road.
The Road Safety Authority have made great inroads into prosecuting such subcontractors. The fines can run into thousands of euro and it is providing particular hardship for single truck owners
whose livelihood depends on these contracts with main contractors who in turn are contracted in to the Local Authorities.
The law appears not to be in tune with the reality of the way that the industry operates and the subcontracting out of work. The High Court is being asked for its opinion to see whether the
definition of “road maintenance and control” extends beyond Local Authority vehicles to those vehicles employed by contractors and in turn subcontractors providing the same service.
As things stand at present the number of prosecutions brought by the Road Safety Authority has ground to a halt in the Courts so long as this issue remains outstanding. When the High Court
makes its decision that decision will have an effect on all current prosecutions.
Any haulier, whether it be a main contractor or subcontractor, a single or multiple unit owner must take particular care if prosecuted. If there is a benefit to be accrued then legal advice needs
to be taken immediately so as to ensure that convictions and fines are not recorded unnecessarily.
A final decision is not expected until the end of 2015 when the law is finally clarified.