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By David Green in Best of the Rest on 21st Mar 2010 6:00
This article appeared in Pitchcare Magazine
Issue 29 - February / March 2010
In my last 'grump' I reported how my wallet had been severely damaged by falling foul of new VOSA regulations regarding the fitting of tachometers to 4x4s towing trailers.
Well, as is my wont, I wrote to VOSA to ask for some points to be clarified - simple ones. Here's the reply I got from a senior VOSA official whom I will call 'She who must be obeyed' or, as they are referred to in text speak, SWMBO!
"I refer to your letters of 18 November and 28 December 2009 regarding various issues you have with road transport legislation. Your letters have, this week, ( MID JANUARY) been passed to me for a response.
I note that you wish a reply in writing so that it can be produced during any roadside check. However, you cover many topics which would result in many, many pages of written advice, most of which would not require our Examiners to have to read at the roadside as they are quite well aware of how VOSA expects them to enforce the various regulations."
Well, that got my dander up, so I penned the following response:
"If an intelligent reasonably educated (2 x Degree level) professional Health and Safety Consultant, Quality Assurance Manager and Managing Director i.e. me, requires many, many pages of written advice (your choice of phrase not mine) to understand the tachograph and other road related regulations, I have to wonder just what chance the proverbial "average man on the Clapham omnibus", who just happens to work in the grounds keeping sector, and who is occasionally required to tow a trailer of under 1020kg unladen weight with a GPM train weight of greater than 3500kg on a public road for commercial purposes, has of getting it right and avoiding fines and prohibitions that could, in time, cost him his livelihood?
You have made my principal point completely without even talking to me.
No published regulations should require such in depth written advice, as you suggest is needed, for them to be unambiguously understandable to an educated man such as I."
In reply I received further correspondence from SWMBO referring to my complaint about the impenetrability of the regulations.
"Unfortunately, we will not be able to overcome some of the annoyances of how digital tachograph equipment works as we are stuck with it because of how the legislation was written by the EU Commission, but I can certainly give you information that can minimise the burden and impact.
Unfortunately, one thing I can't address is how the legislation has been drafted. It's not a matter for VOSA. It is done by our masters at the Department for Transport or the EU Commission. We just enforce it to the best our ability but, having said that, we also sometimes have difficulty with how things have been written. Nature of the beast I'm afraid."
Here, SWMBO, who is employed as the VOSA legislation and policy advisor for traffic enforcement, admits that the digital tachograph has "annoyances" in the way it works, and, also, that the legislation is a "beast" and was drafted so poorly by the EU commission that even the full time professional policy advisor to VOSA sometimes struggles with its interpretation. This is surprisingly honest and, already, rather more than she perhaps should have said.
Eventually, I ended up talking to SWMBO. Needless to say I was left shaking with fury as there were several matters which she could not resolve without talking doublespeak, some matters she was going to have to look into again (what!) and others where I said that I simply could not comply as the environmental conditions associated with working outside in winter would render the legally required tacho discs and printouts liable to damage, general filth and loss. I pointed out that dirty, defaced or missing paperwork is not acceptable to VOSA.
I said I would maintain a log in a page a day diary and update the tacho discs and tacho printouts at a later date using data from the log book when back at base.
SWMBO still insisted on interpreting the VOSA regulations to the letter, requiring manual entries written on tacho discs or printouts as the only acceptable record, and reminding me that this was enforceable by a £200 on the spot fine.
When I said so be it, you told me that I had to put in a system to comply, and when I suggest such a system that met the spirit if not the exact letter of the law, you forcefully repeat that, to comply, I must do what I cannot do and immediately keep the records required on the rear of the tacho disc or the rear of a very flimsy printout from a digital tachograph.
Now I set her up for the following classic example of doublespeak.
I asked her how I could meet the requirement for 28 days of historical records that have to be kept in the cab when driving under tacho regs as, thanks to Christmas, New Year and the extended snow and frost, my vehicles have been sitting idle for the better part of 28 days.
She replied that I cannot possibly be expected to have records where there are none, but that VOSA traffic examiners would be expected to question the driver to get a detailed account of why there are missing records.
I pointed out that the VOSA questioning would require that the driver had some records in one form or another, even if only in his memory, and that her reply was doublespeak worthy of Sir Humphrey Appleby from the much loved Yes Minister and Yes Prime Minister TV series.
A long pause ensued without a reply, so I asked if a record of working time, holidays and days of rest, kept for the purpose of the Working Time Directive (WTD), would be of assistance at such a time.
She took the bait, hook, line and sinker.
"Yes", she replied, "such a record would be helpful".
I pressed on, getting grudging acknowledgement that the time between the end of a shift and the start of the next shift is considered to be rest and does not need to be recorded (in the UK, but not everywhere in Europe), and that it is impossible to record weekly rest periods on tachograph media and that, should such records be queried, a note book kept by the driver would be helpful evidence.
I reminded her that the WTD allows me to select any form of records I think fit, and I choose to keep the records in my diary. I said that she had just stated that my working diary is acceptable to VOSA for some manually kept records purposes but not for others. A long silence ensued as she realised the extent to which she had been trapped into even more doublespeak.
I took a while (gloating) before breaking the silence by asking a question to establish that I do not require a Goods Vehicles Operator's licence under the Goods Vehicle Operator Licencing Act 1995. She who must be obeyed confirmed that I was exempt from any requirements as an operator as I only use dual purpose vehicles.
I asked if an Operator could be defined as he who should be licensed under the operator licensing system?
SWMBO swallowed that one as well and agreed the definition but, when I pulled the line taught, she tried to wriggle of the hook by saying that I was still an operator for the purposes of the tachograph acts. So I am, and am not, a Goods Vehicle Operator.
Oh the joys of dealing with the MoD - the Ministry of Doublespeak - my new name for the department of transport, a wonderful example of joined up government!
SWMBO ended by saying "You should be aware that it is VOSA's policy to target drivers or operators who are known to be non-compliant".
Ooooh, that sounded like a threat, and threats just get me madder!
I snapped back that if VOSA feel that focusing their fire on my small operation is a correct use of limited public money and resources, at a time of a severe public spending deficit, and that such an expenditure of time and effort is worth the absolutely minimal improvement to the safety of our roads that would result, then she must do as she feels she must.
Here the conversation came to an abrupt halt.
The correspondence continues, with me seeking ever more detailed definitions of how VOSA require me to act in the multiplicity of situations that are quite usually encountered during my work.
I have seen the levels of frustration and general 'harpyness' increase letter by letter.
I have just sent off another batch of queries about absurdities arising from the legislators trying to micromanage my working time.
Later on, I will send off a number of other queries arising from the 100km horticultural exemption to tie up some more VOSA executive time..
So, as well as grumpy, I can be a persistently annoying and very irritating old git when I get put out.
But I now have what I wanted, a letter from the VOSA Policy Advisor refusing to give me advice on VOSA policy!
She finally cracked under sustained questioning. The straws that broke the camel's back were:
a) Whether I could study during so called rest periods and, in particular, study regulations reference my work
b) On the definition of what proportion of a load has to be clearly for horticultural purposes before the horticultural exemption can be claimed. 10%, 20%, 30%, 40%, 50%?
Her Problem: Carefully chosen questions where there is no definition given anywhere in the regulations and no case law.
That clearly lit her self destruct fuse as she now refuses any further communication with me.
Makes a fine end to my story, does it not?
Read more articles in Best of the Rest, by David Green or from March 2010.
Read more articles from Issue 29 - February / March 2010
4 wheels are better than none
22 Mar 2010 by Dave
