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Email to Siemens Monday 14th of November 2005
I am sure that you will be inundated with calls relating to this
article regarding Stephen Kirkbridge's speech at the Motor
Transports WTD conference in Birmingham where he has said that the
interpretation placed on article 5 of DIRECTIVE 2002/15/EC OF THE
EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 March 2002, by certain
software, used to interpret the WTD, is incorrect. One of which is
understood to be the Siemens analysis program.
This relates to the part of the regulation which states
...........
in no circumstance work for more than six consecutive hours without
a break. Working time shall be interrupted by a break of at least 30
minutes, if working hours total between six and nine hours, and of at
least 45 minutes, if working hours total more than nine hours.
Siemens obviously take the view that
this is a rolling 6 and 9 hour period, whereas Mr Kirkbridge takes the
view that it is a wipe-the-slate clean 6 and 9 hours.
I personally agree with the Siemens
interpretation, since under Mr Kirkbridge's interpretation a driver
could work for 5 hours, take a 45 minute break and then work for another
9 hours without a break, which I feel is not in keeping with the spirit
of the legislation, which does not want drivers working in excess of 6
continuous hours without a break.
In order to restore confidence in the
Siemens analysis program we need a written statement outlining why this
interpretation has been adopted and whose advice was sought i.e legal
advice, VOSA etc.
I also enclose below a reply from VOSA
to the exact same question posed by one of my clients regarding the
interpretation, by Siemens, of this section of legislation.
Q
I quote from your VOSA newsletter ref breaks for drivers working
time." if a driver performs work including driving and work for six
hours, a
working time break is triggered. the requirement is for a break totalling 30
minutes. These breaks
can be taken as periods of not less than 15 minutes. so after six hours a
driver can take 15 minutes and another break of 15 minutes before reaching nine hours'
work".
Our tachograph analysis company are advising that drivers must take
" 30 MINUTES BREAK IN ANY 6 HOUR PERIOD" and are citing article 5
of the directive to back up the reason. as such they say a driver must take
a full 30 minute break after 6 hours or two 15 minute breaks before going
over 6 hours, contrary to your interpretation above. I would be grateful if you could clarify this query and advise me accordingly. i am aware that working time hours are not prejudice to regulation
3820/85
Reply
from <Juan.Maddrell@vosa.gov.uk>
It
appears that the analysis bureau are confusing Drivers Hours rules on breaks and working time rules. Drivers hours requires a break after
4.1/2 hours cumulative or continuous driving, so there is a wipe the
slate clean approach and in each period of 41/2 hours continuous or cumulative
driving a break is required. The Working time break requirements do not
work in the same way in that if working time exceeds 6 Hours a break of 30
minutes is required, and if it exceeds 9 Hours a further 15 minute break is
required there is no wipe the slate clean principle the breaks are
cumulative over the working day and there is no further break required even if the
worker continues to work for further periods after the 15 minute break
taken after 9 Hours work.
> Juan Maddrell
I look forward to your reply.
...............................................................................
REPLY
14th November 2005
Yep -
Inundated just about sums it up. However, answer below.
The
article is partially correct. There is certainly a lot of confusion
at present regarding this area of WTD but there is no firm guidance
from either VOSA or Dft as to what the correct interpretation is. I
have attached a letter we sent to several of our Bureaus approx 6
weeks ago explaining our position. Below is also a letter from VOSA
received only last week.
Basically
the VOSA letter states almost exactly the same case as stated in our
letter. That the law is still open to interpretation, there is no
definitive case law to say how the rules should be interpreted and
applied, and as yet, in the absence of any case law, the Dft have
not published a definitive answer on this particlar rule either. As
VOSA seem to be firmly sat on the fence then Siemens as a
manufacturer is not willing to change software based on the opinions
of bodys with less authority, we would end up chasing the most
convenient interpretation rather than the correct answer.
You
can be assured that as and when a definitive statement is received,
from a body with the authority to issue such statements, we will
amend the current rules used to ensure that the analysis is in line
with accepted practice.
Attached
is letter sent to Bureau at start of October
Copy
below of the VOSA statement on the breaks interpretation for WTD.
There are currently numerous versions of how the break
requirements of
Working Time should be put into effect, the questions and variations
have
been put to the lawyers at DfT. The current enforcement view is that
unlike drivers hours (wipe the slate clean) working time breaks are
cumulative. The requirement is to take a break after 6 hours of 30
mins.
but breaks can be taken in 15 minute segments, so after 6 hours work
you
could take a 15 minute break then before you reach 9 hours work take
another 15 minute break, (you have taken a 30 minutes break after 6
hours
and before 9 hours), if work continues after 9 hours then a further
15
minute break is required. However
this is only an opinion and it is up to
the Courts to interpret the legislation.
Hopefully the various differing interpretations will be clarified
and the
DfT advice document updated soon.
Juan Maddrell.
If
you have any queries please do not hesitate to call.
Regards
Andy
Thorley
Ihave
highlighted the relevant sections
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