Transport Operator Professional Competence: Employment Arrangements
The Senior Traffic Commissioner’s Statutory Document No. 3 (Transport Managers), version 6 issued in November 2018, specifies that only those persons who can fulfil the statutory requirements for having “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” can act as a transport manager.
Transport managers retain legal responsibility regardless of whether their activities are delegated.
“Nominated” professionally competent persons, therefore, are responsible for the safe operation of vehicles under their control. Because of their experience or the qualifications attained, they are also expected to have an understanding of the legal, financial and operational requirements of vehicle fleet operation.
Applicants for a Standard O-licence who are not professionally competent, (or who do not intend to maintain daily hands-on control of operations even if they are) must employ someone, either full time or part time as appropriate, as the nominated person. That person should preferably be a director of the company or a direct employee of the applicant (ie an internal transport manager) or an independent contractor (freelance, ie an external transport manager). A number of key questions will be asked by the Traffic Commissioner to try to assess if the employment or contractual arrangement is likely to be an effective one. These questions include:
• the number of O-licences for which the professionally competent person will be responsible
• the amount of time which the professionally competent person will spend in carrying out their duties for the operator
• the number of operating centres and number of authorised vehicles for which the professionally competent person is responsible, both on that licence and any other O-licence
• the geographical location of the professionally competent person in relation to the O-licence and the operating centres on that licence, along with the operating centre(s) on any other O-licence upon which they are nominated as transport manager
• any other employment or activities in which the proposed professionally competent person is engaged which may restrict their ability to devote sufficient time to the duties of a professionally competent transport manager on that O-licence
• the terms upon which the proposed professionally competent person is to be employed
• whether the individual is of good repute
• the distance between the residence of the proposed external transport manager’s residence and the operator’s base.
Internal transport managers
This type of transport manager needs to have a close, legal relationship with the operator. To qualify as an “internal” transport manager, they must meet three requirements.
1. Have a genuine link to the operator, such as being a full-time or part-time employee, director or owner.
2. Effectively and continuously perform their transport manager role for the operator in question.
3. Be resident in the relevant EU Member State. The requirements of the legislation are unlikely to be satisfied by a transport manager who lives abroad.
External transport managers
When an operator does not employ a qualified transport manager on a full or part-time basis (ie the operator does not have an “internal” transport manager), or does not act as the transport manager themselves, it is possible to use external transport managers in certain circumstances. The operator may “hire in” a transport manager, eg a consultant transport manager under contract to an operator on a part-time basis. Such an appointee is an “external” transport manager.
The external transport manager must:
• have effective and continuous management responsibility for the transport activities of the operator
• have a contract with the operator that specifies the tasks they perform as transport manager
• only work for a maximum of four operators with a combined maximum total fleet of 50 vehicles — meaning that across all four operators they cannot have responsibility for more than 50 vehicles; lower limits may be set by the Traffic Commissioner in certain cases
• act solely in the interests of the operator and independently of transport customers
• be of good repute and be resident in an EU Member State. The requirements of the legislation are unlikely to be satisfied by a transport manager who lives abroad.
Operators seeking to employ freelance competent persons (ie external transport managers) should, therefore, seek to satisfy themselves that the appointee has sufficient time and knowledge/experience to effectively control the vehicles in the fleet. Asking questions similar to those noted above will help operators to determine if the appointment should go ahead.
Traffic Commissioners can take direct action against transport managers, internal or external, who fail to fulfil their responsibilities. A list of offences is to be published that will automatically lead to nominated transport managers being declared “unfit” to manage transport operations.
However, the Upper Tribunal (in appeal 2017/023) stressed that the “need for a proper, active transport manager is not a mere formality, but a serious requirement”. The transport manager cannot be such in name only, but must fulfil their obligation to exercise continuous and effective management.
This article makes up part of our Transport Operators Professional Competence series. We recommend you read the following articles to help give you a good understanding of the requirements for transport operators.
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