Last reviewed 28 January 2014
Tim Ridyard of Woodfines Solicitors gives consideration to the transport manager’s role in the freight and passenger carrying vehicle sectors, in relation to the Senior Traffic Commissioner Statutory Document No.3 — Transport Managers.
The Traffic Commissioners’ Annual Reports 2012–13 set out how, in addition to licence revocations, 45 disqualification orders were made against goods operator licence holders (including directors), and 15 against bus and coach licence holders, a rise from 37 and 12 respectively the previous year. In addition, 67 transport managers (TMs) in the goods sector, and 14 in the bus and coach sector, were disqualified by Traffic Commissioners (again, an annual increase from 57 and 9 respectively). Many of these will have been both business owners and nominated TMs.
These figures are indicative of the robust position of Traffic Commissioners with regard to the role of the TM in standard national and international licences. Those engaged in making new or varied O-licence applications, or those engaged in public inquiry work, may well have felt the turning up of the heat when it comes to demonstrating the suitability of transport management arrangements. This is especially so since EU Regulation 1071/2009 defines the TM as the person who “effectively and continuously manages the transport activities of the undertaking”.
The comments of individual Commissioners in the reports neatly cover the various areas and types of concern they have.
Financial gain for little or no input.
“We have sought to tackle unscrupulous individuals who seek to act as transport managers in name only, or who see appointment as an opportunity to use the operator as a cash cow. We will continue in those efforts to ensure a level playing field for operators.” (Richard Turfitt, East of England Traffic Commissioner)
“Nowhere does it mention popping in once a fortnight for a cup of tea and a shuffle of a few tachograph charts, yet many who appear before me purporting to be a transport manager seem to do little more than that.” (Kevin Rooney, North East England Traffic Commissioner)
Inadequate input and lack of effectiveness.
“Flag of convenience transport managers — transport managers who are named on the licence, but who have little real involvement in the business. I saw one example where a transport manager was claiming to work 32 hours a month, but only charging £100. Can he have been doing a proper job? Another failed to spot that his operator did not have two drivers, but rather one driver using two tachograph charts under different names. I have not hesitated to take away the repute of such managers.” (Nick Denton, London and South East Traffic Commissioner)
Lack of authority/remoteness.
“Even where a transport manager is a full-time employee, they will frequently either be in a training or other role that gives them no authority, or they will be at board level and too far away from the transport operation to be able to conduct the role effectively. The transport manager is central to its continuing operation. This is an area I will continue to focus on this year.” (Kevin Rooney, North East Traffic Commissioner)
These statements cover a spectrum of issues and types of TM arrangements — from “external” TMs who are barely seen at an operator’s premises, to “internal” TMs who are either business owners/directors and aloof, or non-owners isolated from the controlling minds of the business.
The Senior Traffic Commissioner Statutory Document No.3 — Transport Managers (the revised version of which was published in October 2013) should be read in detail, in conjunction with the comments of the Traffic Commissioners as set out above. It is clear there are some guiding prerequisites for the role of TMs.
They must be effective.
Not only must there be the devotion of sufficient time to the role, but the TM must actually engage in the role in an efficient and thorough manner. By way of example, Traffic Commissioners will expect there to be mechanisms in place to “check the checkers”, ie What procedures are in place for the auditing of daily walk-round checks? What provision is in place for the prompt delivery of maintenance sheets to cross-check the soundness of driver walk-round checks? Do driver defect sheets reveal workshop shortcomings?
The TM must also be effective in terms of the administrative side of the licence, such as communicating properly with the Traffic Commissioner’s office. While it is the operator’s responsibility to notify certain things, eg fixed penalties or changes in directorships, the Traffic Commissioner would expect the qualified TM to be aware of such things and be proactive in this regard. This aspect of the TM role is often poorly executed.
There must be the devotion of adequate time to the role.
This is an area where there is an increasing focus on the ratio of vehicles (and trailers) to the hours worked as a TM. The starting point is set out in Statutory Document No. 3. When a new licence application is lodged, or a variation to increase the fleet size is requested, the caseworker will, in the first instance, consider this. If the hours to be worked by the TM in that role are insufficient, then the matter is “referred up” for the Traffic Commissioner to consider. It does not necessarily mean that more TM staff must be engaged, but a letter from the Traffic Commissioner may follow, seeking clarification as to how the transport management criterion is satisfied — this may involve a root-and-branch account of existing arrangements.
Long-standing operators with large fleets, who have managed for years with perhaps only one TM, can come under scrutiny — they may have obtained their licence long before EU Regulation 1071/2009 came into being. Of course, one or two TMs can indeed manage a large fleet very well, and there may be in place a network of well-managed and supervised support staff, some of whom may have Certificate of Professional Competence qualifications.
The transport management must be continuous.
An absent TM, through lack of presence, illness or long-term leave, may cause serious issues with the Traffic Commissioner. It is, after all, a fundamental breach of the most basic requirement of the licence: that there be “professional competence”. The recent case of Dundee Plant Company Ltd (Appeal No; T/2013/47 – (2013) UKUT 0525 (AAC)) is a shocking example of an operator who did not have a TM for a 16-year period and, worse, “untrue statements had been made to cover tracks”. However, even short periods with a lack of continuous TM cover can lead to serious good repute issues. Many operators appear unaware of the power to seek a “period of grace” from the Traffic Commissioner, so they can operate without a TM who may have resigned, left, died or become seriously ill.
They must have authority.
Many problems with TMs arise because they are not given the status and authority from the controlling minds of the business and/or they do not command the respect of the driving and non-driving workforce. Where there is inadequate respect, the transport management regime will break down, and with it the safety systems — the essence of operator licensing. Traffic Commissioners will look at this at public inquiry hearings and will be critical of businesses that do not support their TMs or remove them if they are not up to the task. Similarly, Traffic Commissioners will not tolerate TMs who adopt the approach of “I have told them many times, but what more can I do?” Such a regime means, in effect, that drivers and other staff please themselves (and some will, ultimately, create danger on the roads, directly or indirectly.)
The role of owner/director and transport manager
In many businesses, the controlling mind of the business, whether sole trader, partner or director, may be one and the same individual. However, it is expected that adequate “continuous and effective management of the transport operations” will, nevertheless, still take place. It is now often the case that these TMs are asked to account for the amount of time spent on non-TM duties.
This may cause issues — business owners will be engaged in many aspects of business, eg sales, marketing, raising finance, HR etc, which require not inconsiderable input. Again, it will be necessary for them to show that either they are able to devote adequate time or they have an adequate support team.
However, what they cannot do with the TM role is delegate it per se. They hold the position and it is they who must demonstrate continuity and effectiveness.