04.08.2010

UK crane drivers may be subject to CPC

After it seemed clear that crane drivers in the UK would NOT be subject to the European Vehicle Drivers Certificates of Professional Competence Regulations 2007 (CPC), the subject appears to open to interpretation again following an announcement from the UK Driving standards Agency (DSA).

The UK’s Vehicle Operator Services Agency (VOSA) had previously said that it considered mobile cranes to be exempt from the Driver CPC Regulations for a number of reasons.

The Construction Plant Hire Association (CPA) which represents most UK crane rental companies held a meeting recently with the DSA to discuss the contradictory advice. Apart from allowing the CPA to put across a number of explanations as to why it felt that the original VOSA ruling was correct, the meeting does not appear to have moved the case any further along. The DSA appears to be holding to its original declaration, although it does admit that adoption across Europe caries form country to country.

The DSA has issued a very thorough set of minutes from the meeting which is reproduced in full below.

Vertikal Comment

In this age of government budget cutbacks it seems ludicrous that two government agencies are not only giving their views on this subject but contradicting each other.

In fact is seems wasteful that there are two agencies related to vehicle and driver licensing when the two are so closely interlinked. Surely if VOSA has said that it considers crane operators to be exempt and if several other EU states have arrived at the same conclusion- why does the DSA feel that it has the time and resources to open this area up again?

Could this be a case of turf wars? If so then perhaps the chancellor needs to look to this area for deeper budget cuts?

MEETING WITH CONSTRUCTION PLANT-HIRE ASSOCIATION – 13 July 2010

DSA HQ, Nottingham

ATTENDING:

Colin Wood CPA
David Smith CPA
Graham Law DSA
Mandy Lynch DSA
Rick Annable DSA

The Construction Plant-hire Association (CPA) had requested the meeting to discuss the advice recently provided by the Driving Standards Agency (DSA). DSA had advised that, on the balance of probability, the Courts were likely to find that mobile cranes were within scope of the Vehicle Drivers (Certificates of Professional Competence) Regulations 2007 (ie the Driver CPC Regs).

Colin Wood (CW) explained that there were around 3,500 mobile cranes in the UK and that 99% of these were supplied with an operator/driver.

CW confirmed that CPA was a member of two European plant hire associations

•European Rental Association (ERA) – which represented companies supplying construction plant with and without operators
•ESTA – which represented companies supplying mobile cranes and heavy transport.

Members of CPA had been previously informed of advice from the Vehicle Operator Services Agency (VOSA), that they considered mobile cranes were exempt from the Driver CPC Regulations. That view had been circulated widely within the industry. The advice from DSA differed from VOSA’s view. CPA hoped to establish an agreed way forward that could be shared with members at the CPA Crane Open Meeting on 21 September.

CW advised that many small companies operating within the plant hire sector were not members of the CPA. Most would have heard of the earlier (VOSA) advice via the grapevine. There would be a need to notify them of DSA’s view that mobile cranes were not outside the scope of the Driver CPC Regulations. DSA accepted this point.

Members of CPA were also concerned about potential costs and the time remaining to gain a Driver CPC if it was firmly established that their drivers were in scope of the Driver CPC Regulations.

Graham Law (GL) explained why the legislation specified that drivers must undertake 35 hrs training over a 5 year period rather than 7 hours per year.

He explained that requiring 7 hours training to be completed on an annual basis, would have necessitated an expensive monitoring system and asked what sanctions could be employed if a driver failed to complete 7 hours in a particular year? This approach would have resulted in the “gold plating” of the implementation of the Directive, contrary to Government policy. GL also asked what would be the point of requiring a person who had ceased to drive professionally to complete 7 hours of training each year in order to obtain a Driver CPC he no longer needed? Mandating 7 hours per year simply wouldn’t work.

GL explained that following receipt of the enquiry from CPA, DSA had reviewed other legislation that covered mobile cranes in an attempt to provide a sound opinion as to whether they (and their drivers) were in scope of the Driver CPC Regulations:

•Framework Directive
•Machinery Directive
•2nd Driving Licence Directive

However, this additional legislation had not proved to be of much assistance. As the Driver CPC Regulations apply to vehicles for which the driver must hold a driving licence of category C, C+E, D or D+E, DSA concluded that (in its opinion) mobile cranes were highly likely to fall within scope of the Regulations as drivers of such vehicles must hold a Category C licence. Having established that mobile cranes were likely to come within scope of the Regulations, DSA considered whether or not the drivers could possibly make use of the exemption at regulation 3(2)(f) – known as the incidental driver exemption. The Agency concluded, on the basis of the available evidence, that this exemption was unlikely to apply as the vehicles were not carrying material or equipment that would be removed at the destination for use by the driver.

CW explained that mobile cranes do carry materials and equipment for use when the crane is static – such as lifting chains, straps and mats or wooden “sleepers” (to help spread the load of the outriggers). In addition mobile cranes are allowed by the Department for Transport to carry ancillary equipment e.g. concrete skips and lifting forks for moving pallets of bricks, if these are needed on site.

David Smith (DS) maintained that the driver’s principal role was that of crane operator and driving the vehicle on-road was therefore incidental to his primary function. The vehicle was almost invariably based on-site for considerably longer that it was on the road.

GL explained that the incidental driver exemption is problematic to interpret but is generally accepted to apply where driving is incidental to the main duty on the day in question – eg a bricklayer taking bricks to a site where he was to build a wall. A store man who deputised as a delivery driver was not considered to be an incidental driver as driving was his primary function on that day.

CW explained that as mobile cranes are allowed to operate on “red diesel” and do not require an Operators Licence, as they do not carry goods for hire or reward, these vehicles are not considered to be “goods vehicles”.

Mandy Lynch (ML) explained that the Driver CPC regulations provided an exemption for vehicles operating at less than 45Kph = 27.9 mph.

CW explained that this was a welcome exemption and one that would be looked into, but that most mobile cranes were not restricted to that speed.

DS said that members of the CPA had raised several legal points:

•VOSA had confirmed that a mobile crane was not considered to fall within the definition of “goods vehicle” as provided by the Road Traffic Act 1988

•CPA did not consider mobile cranes to be a “relevant vehicle” for the purpose of carrying goods or passengers

•CPA understood that drivers of mobile cranes were required to hold a Category C licence as the MAM of the vehicle was in excess of 3500 kgs and not because the vehicle was considered a “goods vehicle”

DS asked that DSA provide further clarification as to why it now considered mobile cranes to fall within the definition of a “goods vehicle”.

ML confirmed that the matter of interpretation was not closed. DSA was still investigating with EU colleagues how each Member State was treating mobile cranes for Driver CPC purposes. Thus far, the Agency had identified differing approaches across the Member States.

CW accepted that this issue would probably not be resolved until a test case had been considered by the High Court and in the meantime most CPA members would probably delay training in the hope of a satisfactory outcome.

GL confirmed that DSA would prefer to avoid tests cases if possible as they were a time-consuming and costly way of resolving issues. Also, it was unlikely that a suitable case would be heard until after September 2014 – by which time it would be too late for those drivers who had not completed their periodic training to continue to drive professionally without a Driver CPC.

GL explained that the individual provisions of the Driver CPC Directive do not always fully mesh. In particular, the pre-amble to the Directive implies that it relates to drivers of vehicles designed to carry goods or passengers. However, Article 1 defines the scope of the Directive by reference to the licence required to drive the vehicle – not whether it carries goods or passengers.

GL confirmed that through its contacts with CIECA (the international commission for driver testing), DSA had tried to find out how other Member States were treating mobile cranes. The Agency had asked for a specific question to be included within the next survey of CIECA members. He also explained that the EU Commission was conducting a review on how Member States had implemented the Directive but the resulting report was not expected until September 2011. He advised against delaying periodic training until the last moment as that could well result in a surge of demand that the training industry may not be able to meet.

POINTS OF AGREEMENT

•DSA will provide CPA with a copy of the draft note of the meeting for their consideration

•Once the note had been agreed by CPA and DSA, the Agency would be content for CPA to share it with their members at the meeting of 21 September

•DSA will further consider the arguments for exemption and the additional information provided by CPA

•DSA will raise the issue of mobile cranes as part of its response to the Commission’s review on Driver CPC implementation

•CPA will look to feed their concerns into the EU Commission review either directly to the Commission or via their European umbrella organisations.