Andrew Woolfall, of Backhouse Jones Solicitors, discusses the role of the transport manager, and what operators should consider when making a new appointment.

Introduction

Following the introduction of the Road Transport Operator Regulations 2011, there are now a number of issues that operators (and applicants for an operator’s licence) must consider when looking to appoint a new transport manager. The regulations, which came into effect in December 2011, made substantial changes with regard to the transport manager’s role. Concepts such as “internal” and “external” managers were introduced, Traffic Commissioners were given the power to disqualify individuals from being managers, and national registers were introduced that listed all those formally undertaking the function.

However, the 2011 Regulations are not the only major change that has come into effect with regards to transport managers in recent years. For some time now, whenever an operator has been called to a public inquiry hearing, the nominated transport manager has also received the same invitation to appear before the Traffic Commissioner. The Commissioners have taken the view that whenever an operator fails to meet undertakings or the terms of an operator’s licence, this has been as a result of the nominated transport manager failing to perform his or her job correctly.

Definition of “transport manager”

A transport manager is defined by legislation as being an individual who is in, or who is engaged to enter into, the “employment of the holder of a standard licence and who, either alone or jointly with one or more persons, has continuous and effective responsibility for the management of the transport operations of the business in so far as they relate to the carriage of goods”.

References to “employment” can be somewhat misleading as, following the 2011 Regulations, it is clear that transport managers can either be direct employees or persons so closely linked to the business that they have a real direct connection with the operator (both being termed “internal” transport managers) or independent third parties such as transport consultants (referred to as “external” transport managers).

However, in all circumstances there must be a contract that sets out the terms of appointment, obligations and expectations and the Traffic Commissioner’s office will invariably want to see a copy of such a document before ratifying any appointment. It is good practice, therefore, to fully consider the terms an operator will desire before making any appointments.

While there is no restriction on the number of vehicles that can be managed by an internal transport manager, external transport managers are restricted to representing a maximum of four operators and a total fleet size across all businesses of 50 vehicles. Any operator wishing to appoint such an external manager should therefore think carefully as to whether such an individual would be compatible with its fleet size. Thought should not only be given to the number of vehicles currently being operated but those which the operator anticipates having on the road in the future.

Professional competence and good repute

Any person appointed to the role of transport manager must meet the statutory criteria for professional competence and good repute. Professional competence is gained through either acquired rights or passing the appropriate examination. However, the 2011 Regulations severely restrict the ability of persons to act in the role of transport manager when they rely upon acquired rights. If the individual has not been regularly acting as a transport manager then the authorisation may have lapsed and, in such circumstances, the appointment would not be ratified until the individual takes the new, combined, certificate of professional competence (CPC) examination.

However, simply possessing a CPC qualification should not be the minimum criteria expected from the candidate. The Traffic Commissioners regularly make it clear that they expect transport managers to keep fully up to date with regards to their role. If the individual has not passed the CPC examination relatively recently then the operator should make enquiries as to what steps the individual has taken to keep abreast of changes in legislation and best practice. Many of the trade bodies now run refresher courses for transport managers and, in the case of an individual having passed the exam several years ago, operators should rightfully expect the prospective employee to be able to demonstrate that some further educational and professional development training has taken place.

Traffic Commissioners have for many years been able to remove a transport manager’s “good repute”. Before an appointment is made, therefore, the operator should check to ensure that the applicant has not been disqualified nor had regulatory action taken against him or her. Good repute can be lost in a number of ways, including convictions for certain types of offence. An operator should therefore seek full disclosure from the applicant with regard to any previous convictions, which should not only include convictions of the individual but also of any businesses that the individual may have been party to, whether as a partner, director or transport manager. All of these may have a bearing upon whether the Commissioner accepts the individual as a suitable appointment.

Industry knowledge

Having confirmed that an individual is competent and has good repute, the operator is then best advised to satisfy itself that the proposed manager is actually suitable for the job in terms of delivering compliance with undertakings or conditions on the operator’s licence. Every operator’s licence comes with certain undertakings and conditions attached as standard, such as ensuring that the laws relating to the driving and operation of vehicles used under the licence are observed. If an operator works in a “non-conventional” transport industry, such as carrying specialised waste, the proposed transport manager should have knowledge of all relevant legislation for that particular industry sector. This might include areas such as health and safety or environmental laws, dangerous goods or even planning issues. The manager should be fully up to date with systems for checking driving licences and driver CPC requirements. There may be specific issues with regard to the loading of vehicles — from overloading problems to load security. A good knowledge of these areas should be considered essential so that the manager “hits the ground running”.

Another basic undertaking on all licences is to ensure that the laws relating to drivers’ hours are observed. The manager therefore needs a detailed understanding of this area of legislation and specific knowledge as to how it might apply to the business. For example, if the business is exempt from tachographs and relies on domestic hours legislation then the proposed transport manager needs a good understanding of this area of law. Mixed fleets, which combine both tachographs and traditional log books, are possibly the hardest to manage and require an individual with a thorough understanding of best practice. The role also involves maintaining vehicles in good and efficient order. To do this, the transport manager needs a thorough knowledge of the Operator Compliance Risk Score and best maintenance practice, which in itself may be industry-specific, eg an appreciation of the need for drivers to perform enhanced daily vehicle checks when working in arduous environments.

The “person spec” for the job

In addition to all of the above, the proposed transport manager should also possess other attributes. The need to keep paperwork in good order means the transport manager should be a good administrator. Many operators are found to fall short of expectations at public inquiry when it is found that records are not properly completed, are partially missing or contradict each other.

The proposed appointee should also be of strong character. Transport managers have to be regularly in contact with drivers, manage workshop and fitting staff and deal directly with the operator. They must also be trusted implicitly by the operator, given that to meet the statutory definition of the role the individual must have “continuous and effective responsibility” for the management of the transport operations. This requires the transport manager to be able to take vehicles out of service, recommend disciplinary action, have a real say in the setting of budgets and the spending of money, and the organisation of drivers and work.

The operator should be slow to interfere with the transport manager’s work. The Transport Tribunal has given clear guidance to transport managers who find themselves over-ridden by operators, saying that the individual should give a written warning and then resign rather than carry on when unable to perform his or her duties. When making an appointment, therefore, on top of all of the above the operator really needs to consider whether it can, in fact, work closely with the individual.

Last reviewed 29 August 2012