Periods of availability (PoAs) continue to cause consternation and confusion in the transport industry. When the Working Time Directive was introduced through Directive 2002/15/EC in April 2005, the various modes were defined in the regulations and it was thought that the confusion drivers have long faced as to what mode to use would be resolved.
However, over 12 years later, the confusion, doubt and in some cases, the controversy remains.
Article 3(b) of this directive states that periods of availability shall mean:
“periods other than those relating to break times and rest times during which the mobile worker is not required to remain at his workstation, but must be available to answer any calls to start or resume driving, or to carry out other work. In particular, such periods of availability shall include periods during which the mobile worker is accompanying a vehicle being transported by ferryboat or by train, as well as periods of waiting at frontiers and those due to traffic prohibitions.
These periods and their foreseeable duration shall be known in advance by the mobile worker, that is to say either before departure or just before the actual start of the period in question, or under the general conditions negotiated between the social partners and/or under the terms of the legislation of the Member States; and
for mobile workers driving in a team, the time spent sitting next to the driver or on the couchette while the vehicle is in motion”.
A driver cannot choose whether to use a work mode in order to record his or her activity — it is compulsory to do so. Article 34(5) of EU Regulation 165/2014 states that “Drivers shall operate the switch mechanisms enabling the following periods of time to be recorded separately and distinctly:” and thereafter lists the four modes under the relevant symbols known for driving time, other work, periods of availability and rest or break periods. Therefore, the mode selection by a driver is not optional and that in itself should be monitored by a reputable Operator.
Furthermore, it is essential that drivers are aware (despite the manufacturers’ claims) that a tachograph can never be automatic; they can only ever be semi-automatic.
There are automatic elements, ie a tachograph can and should determine whether a vehicle is in motion, therefore, is it driving or stationary?
However, when a vehicle is stationary, although there are again automatic aspects, ie when a digital vehicle comes to a stop after driving, the mode must, by law, automatically revert to other work.
However, even the most modern tachograph cannot distinguish whether the driver is loading or unloading, waiting for a load, doing vehicle checks, reading a newspaper or having a cup of tea. For that reason, the tachograph or any tachograph can only ever be semi-automatic, it’s not psychic!
Therefore, as these activities may require different mode selections by the driver, the driver must remember to change the work mode to the appropriate, relevant setting.
The PoA symbol is the square with a line through it, and is generally intended for two activities in the course of a driver’s working day, as follows.
Waiting time when the duration of the wait is known in advance.
When the driver is travelling as a passenger in a vehicle, in the course of their work.
Waiting time when the duration of the wait is known in advance
Where the waiting time is known in advance, this can qualify as a PoA, providing the driver is:
not required to remain at the workstation (for the purpose of this article, the “workstation” is the driver’s cab) — there are some exceptions to this where the driver’s safety or load security may be compromised, and this is explained later in this article
available to answer calls and resume driving upon request
aware of the waiting period in advance either before departure or, in any event, before the start of the period in question.
Although the law states that the driver is not required to remain at his workstation, there are three accepted occasions when a driver can take a PoA, within the cab of the vehicle, providing one of the following criteria can be met.
It is the choice of the driver to remain within the vehicle.
The length of the waiting time is known in advance but the driver considers, in the interests of personal safety, that he or she should stay within the cab.
The length of the waiting time is known in advance but it is considered, for the security of the load, either due to value or load type, that the driver should stay with the vehicle.
As previously stated, for the PoA to be valid, the driver must know of the waiting time before the period of time commences starts, but the driver does not need to be notified specifically. It is enough to know about the waiting time, and its duration, in advance, and therefore the knowledge could be by:
arriving early for a timed delivery
always experiencing a wait at a specific location.
Below are a few examples giving scenarios to help assist in establishing whether such time is PoA or “other work”.
A driver arrives at a site where a delay of one hour is normal. However, on this occasion, the delay totals two hours.
The first hour is available as PoA as there is always a delay, and is therefore known. However, as the driver was not notified of the second-hour delay, this one-hour period is classed as “other work” and the crossed hammers mode should be used. Therefore, the first hour is PoA and the second is “other work”.
A driver arrives at a site where a delay of one hour is normal. However, on this occasion, either part way through the first hour or at the end of the first hour, the driver is notified of a further delay of one hour.
As both one-hour periods are known and/or notified in advance, the driver can consider both one-hour periods as PoA.
The driver arrives at work, but his vehicle is not ready. He is told that he cannot undertake his regular duties for two hours while he waits for the vehicle to become ready. However, after half an hour, the driver is asked to do yard duties for one hour, before waiting again for the final half-hour period.
The driver knows of the delay so the first half an hour is PoA but, when he begins the work in the yard, this is “other work”, which is recorded by the driver as such before returning to PoA for the final half an hour.
When the driver is travelling as a passenger in a vehicle, in the course of their work
This second general activity may occur while travelling on behalf of the company, as shown in the following examples.
When travelling as a crew member when the vehicle is multi-manned (ie more than one driver in the vehicle), but is undertaking no work, such as navigating or assessing, or training a driver in the company procedures, this may be recorded as PoA. It is important to note that it has been published in Government guidelines (see www.gov.uk, also known as GV262) where it states that when travelling in a multi-manned vehicle, the first 45 minutes of a period of availability is considered as a qualifying driving break for the purpose of the 4½ hours driving regulation. Therefore, it is possible for the driver to undertake his driving, swap seats and take his 45-minute break, under the PoA mode, within a moving vehicle, providing the driver meets the multi-manning specifications within the legislation. Where a driver is navigating or acting as a driver trainer for an operator, then the driver is undertaking “other work” and the time should be recorded as such, ie the crossed hammers mode should be used. However, as the newer tachographs will default, the second driver’s mode to PoA when in motion, the driver trainer, for example, will be required to record this activity manually on either the grid on the reverse of the chart, or on the reverse of a print-out when in a vehicle with a digital tachograph.
When on a “placement” type journey when a driver may have been recovered in a company car (or other vehicle) after running out of driving time. If the driver completes the journey as a passenger in the car, this should be recorded as PoA, manually using the manual entry function on a digital tachograph or on the back of the chart if using an analogue tachograph, in both cases, as soon as possible after the event.
Can a driver record a break during a period of availability?
It is important to remember that, although a period of availability is generally for waiting time, where the period of waiting is known, there is nothing to stop a driver taking a break during some, or all, of that period of availability. In order to do this, the driver must be able to meet the criteria that the time is being used “exclusively for recuperation”. Furthermore, the driver must change the work mode to break (the bed symbol) for the periods taken as a break. As a caution, it is important to note that in the United Kingdom, PoA is not considered as a break. This is a different interpretation to much of Europe and as such digital tachographs view PoA as a break in their internal software. Therefore, if a driver was to take 45 minutes PoA in a digital vehicle, this would “wipe the slate clean” for the 4½ hours driving period being displayed to the driver. However, under the UK interpretation, this would not be the case and in those circumstances, if using PoA, the driver must be very careful to calculate their own 4½ hours driving periods and not to rely upon the display for compliance.
It is complex and the further investigated the more complex it can become. However, in conclusion, as a simple guideline, a driver needs to consider the following when waiting and not directly undertaking other work —
Is the duration of the wait known?
If the answer is no and the driver cannot use the time exclusively for recuperation, then the “other work” mode should be used.
If the answer is yes, then this can be recorded as PoA.
However, if the time may be recorded as PoA and the driver is able to use some or all of that time exclusively for recuperation, the driver may then record those times of recuperation as a break period.
At all times remember, in the United Kingdom, a PoA is not considered as a break.
And one last thing, although not mentioned above, PoA does not count as Working Time for the purpose of the Working Time Directive.