Every second counts 06 February 2012

The one-minute rule in tachograph legislation, and drivers' hours under the Road Transport Directive, have changed the game for transport operators. Andrew Woolfall provides guidance

October 2011 saw the introduction of further European legislation regarding digital tachographs, which amended important technical specifications. For devices manufactured after this date, changes include: an increase in the number of company 'locks' (from the previous 20 that were available, up to 255); introduction of a common specification for the 'till role' printout paper; and suppression of 'no driver card' and 'breaks from driving' warnings. Most important, though, they include alterations to the way in which driving and other activities are recorded by the tachographs. New devices manufactured after October 2011 now record time by reference to the majority activity undertaken within the minute.

The wording of the original digital tachograph regulation required, among other things, that any movement of more than five seconds within a minute should be recorded as driving – and furthermore that, if the vehicle is driven for any part of the minute, then the whole minute shall be considered as driving.

While analogue tachograph charts would often record less driving, vehicles with digital tachographs installed often see substantially more driving time recorded for the same operation. This is often prevalent when vehicles are involved in multi-stop work, such as parcel delivery, or activities were there is a lot of stop/start activity, such as quarry operations.

Why? Because under the original digital tachograph, a vehicle could be driven one minute and one second but the device would actually record two minutes driving activity. Regardless of the fact that the remaining 59 seconds of the second minute were 'break', 'period of availability' or 'other work', the fact that one second of driving had been undertaken would render the whole minute as driving.

Similarly, a driver could have 14 minutes and 50 seconds break and then drive for ten seconds in the final minute. However, the device would record only 14 minutes rest and a further one minute driving. When periods of rest and break are put together in this kind of manner, significant differences can be expected between what a driver thinks he or she has done and what the device has actually recorded. The point: drivers have to be conscious of the seconds and not just the minutes.

As a consequence, in the increased driving time recorded by digital tachographs, many operators had to reduce the amount of work given to drivers – and this made them less economic compared to their counterparts with analogue devices. Additinoally, there has been an impact with regards to enforcement and compliance. Fixed penalty notices are often issued, and prosecutions brought, after a simple reference to the basic information recorded on the digital tachograph.

As can be seen from the commentary above, this information can be misleading, if it is not considered in the proper context of a driver's real working day. Often now, drivers receive penalty notices or face prosecution when they genuinely think they have been compliant with the law. The fact is, the information recorded by the device is frequently somewhat different to the driver's perception of his or her day's activities.

The digital age
In an attempt to combat this problem, some years ago the European Commission issued a guidance note acknowledging the problem that drivers might face with larger amounts of driving time being recorded when using a digital tachograph than would be expected, in comparison to analogue devices.

In what is meant as a temporary measure during the transitional period between analogue and digital tachographs, and while digital tachogrpahs do not record activity down to the nearest second, the EC is encouraging enforcement authorities (such as the police and VOSA) to apply a tolerance to the time recorded by digital tachographs in vehicles engaged on frequent stop or multi-drop journeys.

While the guidance note stresses that it is for the operator to show the type of work being undertaken, if the enforcement authority is satisfied that the vehicle falls within the scope of the guidance notes, it is suggested that a tolerance of up to 15 minutes over a four and half hour block of driving can be applied. The suggestion is that the tolerance might be applied as a deduction of one minute per driving time block, between stops, with a maximum of 15 minutes per four and half hour block of driving time.

Unfortunately, many enforcement officers (and particularly those engaged in the police) are not aware of the EC guidance, and prosecutions therefore continue. The new requirements for devices manufactured after October 2011 will hopefully address many of these concerns.

As stated above, the next generation of device will record time by reference to the majority activity taht occurs within a minute. This means that, if there is one second driving and 59 seconds rest, the minute will be recorded as rest. If there are 31 seconds driving and 29 seconds rest, the minute will be recorded as driving.

Independent analysis and tests comparing the old and new digital tachographs show that substantial savings can be made with regards to daily driving time when using the newer digital tachograph models. Where identical journeys and work were conducted by vehicles equipped with the two different types of device, savings ranged from a few minutes up to, at the extreme, almost two hours.

In the tests, which looked at multi-drop activities the average saving was an hour's driving time. The new digital tachograph devices should hopefully record time in line with a driver 's expectations and therefore see a reduction in the number of fixed penalty notices issued and prosecutions brought against both drivers and operators.

Incidentally, further minor changes are set to be introduced in October this year, which will be aimed at detecting any tampering with the device. However, it is not likely to be until the latter part of this decade that we can expect to see a truly second-generation digital tachograph.

An EC-wide consultation into the proposed specification of such a device closed last year and the new features being considered include introducing GPS data recording (with regards to start and finish locations and exact journey details) and the possibility of enforcement agencies being able to remotely access the units data whilst the vehicle is in motion.

This could lead to the likes of VOSA being able to check a driver's tachograph information without actually stopping the vehicle. If any obvious discrepancies are present, the vehicle can then be brought in to a check site for further investigation. As enforcement becomes more sophisticated, including the use of OCRS (Operator Compliance Risk Score) and 'weigh in motion' sensors, drivers and operators will have to maintain a high level of professional knowledge and competence.

Andrew Woolfall is with Backhouse Jones solicitors

Andrew Woolfall

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