Sometimes being a Transport Manager can feel like being a pawn in a game of chess!
On 4th December 2011 legislative changes to rules on operator licensing for hire or reward operations came into force in the form of a new Regulation.
The changes have specific application to Transport Managers. 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 ths? No, absolutely nothing, unless you decide to operate outside the system which would of course be illegal or you downgrade to a restricted operation. The new Regulation only applies to hire or reward operations so non-hire or reward (Restricted) operations 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, the ‘external’ Transport Manager becoming non compliant because of a breach of the 4/50 rule! Imagine if you are that Transport Manager! 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.
What you have to appreciate is that at a Public Inquiry a Traffic Commissioner or Deputy can and will investigate the role a Transport Manager has played in connection with any breach of undertaking or non performance as regards the Operator Licence. This could potentially lead to a Transport Manager’s disqualification from being a Transport Manager.
On occasions we have advised in situations where the Transport Manager has clearly been trying his or her best but has run into difficulties with the ‘boss’. In such circumstances you could have a conflict of interest with your employer (the Operator) and it would be in your interests to be independently represented at the Public Inquiry. No, you don’t want to ‘diss’ your employer for obvious reasons but you need to think very carefully about safeguarding and protecting your own position.
- Should I resign as Transport Manager?
- Should I whistle blow?
- What are my rights?
- What are my obligations?
- How should I handle myself at Public Inquiry?
These can sometimes be difficult questions that require very careful consideration. As experienced transport solicitors we can help you and may even be able to knock some sense into your employer. The stakes could not be higher and this new Regulation is going to focus some minds in 2012 and beyond.
If you are a Transport Manager you may be worried or concerned about what you have read in this article. If you need help or assistance with any issue relating to your role as a Transport Manager or generally in relation to the operator licence please get in touch.
Transport Manager’s Grandfather Rights
Transport Managers who held a Grandfather Rights certificate had until 20 November 2013 to apply for their new Acquired Rights certificate. Transport Managers who have passed a Certificate of Professional Competence – CPC – exam did not need to apply for Acquired Rights.
Application for transport manager acquired rights entitlement
Transport Manager Grandfather Rights (GFR) – which are used as proof of professional competence by people who have not passed Certificate of Professional Competence exams – changed from the 4th December 2011. The name was changed to Transport Manager Acquired Rights (AR) so it is clear that the renewed rights are issued in compliance with Article 9 of the new EU regulation on operator licensing (EC Regulation 1071/2009).
Only those with existing Transport Manager GFR are eligible to apply for Transport Manager AR.
The Regulation requires that a transport manager with AR has continuously managed at least 1 road haulage undertaking or a road passenger transport undertaking for the period of 10 years before 4 December 2009. Temporary breaks in the requirement for ‘continuous management’ are legitimate and unavoidable – for example to take account of long-term sick leave or maternity leave.
Many GFR holders, where the Department had sufficient evidence, and who were listed on an operator’s licence as a transport manager with grandfather rights, will have their Acquired Rights certificate sent to them automatically. This process began in November 2011. Only those who were not listed as a transport manager on a current operator’s licence need apply using the form. Note: Acquired Rights can only be granted up to 4 December 2013. You must have submitted your application and been granted Acquired Rights by this date.