May 5, 2018
Given the content of this article, we should probably first say that the information, interpretation and views given expressed are those of the author and shall not be relied upon with the reader advised to obtain expert legal advice. However, the British Drilling Association’s (BDA) Safety Committee has received several “requests” from members that the BDA should be advising Client’s that they should be paying for overnight accommodation and travelling time for Drilling Crews. These members believe their Clients expect them to arrive on site, for example, on a Monday morning ready for a Site Induction at the start of the shift, after having driven several hours (often up to 6) towing a rig. They then expect them to work a full shift before driving back home. These frustrations bring out several issues which have been addressed by the BDA in its Guidance documents (Ref 1, 2) and which are free for BDA Members to download from the BDA website (www.britishdrillingassociation.co.uk).
The first point is that the BDA cannot get involved in setting or recommending prices. Secondly when any organisation is pricing a contract it is their responsibility to cost for mobilisation, which should include overnight accommodation and travel costs where appropriate. Driving long distances particularly when leaving home in the early hours to arrive for an induction will almost certainly mean the Drill Crew will be tired. Remember driving whilst tired is extremely dangerous. It is recommended at least 11 hours rest before starting a shift. According to Department for Transport statistics, around 300 people are killed each year as a result of drivers falling asleep at the wheel, and about 4 in 10 tiredness-related crashes involve someone driving a commercial vehicle. Members may remember the “Selby” railway disaster 2001 where a pickup driver, towing a trailer, had little or no rest before driving along the M62 motorway, fell asleep at the wheel and crashed down onto the East Coast mainline. This resulted in two trains crashing and the death of 10 people and serious injuries to 82 individuals. Thirdly if anyone drives a vehicle towing a trailer, either of which is capable of carrying goods, with a combined Gross Vehicle Weight of more than 3.5T the vehicle must have a tachograph fitted where they operate more than 100km from their undertaking (Yard). The organisation may also require an O-Licence to operate. If the vehicle was registered after 1st May 2006 it must be a digital tachograph.
Many Drillers still argue that a CP rig is either agricultural or engineering plant and not a trailer as some manufacturers have told them. However in the landmark case of Pritchard & Devenish vs CPS 2003 The Honourable Mr Justice McCombe ruled “…that the motor pick-up, Nissan Cabstar, was towing a single-axle Bocker H16 hoist which had an unladen weight of 950 kg required a tachograph as there can surely be no difference in the concept between a goods carrying trailer and a piece of heavy equipment towed behind a vehicle. In my view …that for these purposes a “trailer” is something “trailed” behind another relevant vehicle.”
A CP Rig is Therefore a Trailer.
The Honourable Mr Justice McCombe also stated “The relevant legislation is labyrinthine in nature. If an Appeal Judge thinks transport legislation is complicated, then no wonder there is confusion in the Industry. A copy of this ruling is available from the BDA. The BDA has informed its’ members since 2005 (Ref 3) that a CP rig is by this definition a trailer and it doesn’t matter that any manufacturer states otherwise. We would point out that this applies to Goods Carrying Vehicles only. Finally The Working Time Regulations 1998 (as amended) (WTR) allows employees to opt out of the 48 hour maximum working week allowing the operator to do overtime.
There is however another regulation for drivers, Road Transport (Working Time) Regulations 2005 (RTWT), which imposes numerous driving requirements and does not have this opt-out clause. It imposes a 48-hour working week averaged over a 4-month reference period. There is no opt-out from the 48 hour average. The reference period can be extended to 6 months by an agreement negotiated with a recognised union. A maximum of 60 hours work in any single week provided the average 48 hour week is not exceeded in each reference period. The working week starts and finishes at 00.00 on Monday morning. If working nights there are other requirements. These regulations apply to all mobile workers who work in vehicles subject to the Drivers’ Hours and Tachograph Rules. These rules apply to Drill Crews towing CP rigs more than 100km from their Yard. It is essential to understand that the RTWT Regulations are separate and additional to tachograph rules. If an individual is part of a Drill Crew that are towing or have towed during the working week the Tachograph Rules and the RTWT Regulations apply for that week and there must be records of hours worked for the whole of the week.
Daily Driving Limit
An individual must not drive for more than 9 hours in a day. However this can be increased to 10 hours up to twice in a fixed week in the following instances:
Daily Duty Limit
Individuals must not be on duty for more than 11 hours in any working day. This limit doesn’t apply on any working day when there is no driving but the 48-hour working week averaged over a 4 month reference period does if the Drivers’ Hours and Tachograph Rules have applied. A record of hours must be kept on a weekly record sheet (timesheet) or on a tachograph and must be available for inspection if stopped by the DVSA or Police. If person drives whilst towing a CP rig onto site the off-road driving still counts towards the working day during that day. Any off-road driving where the public road isn’t accessed on subsequent days doesn’t count as driving time. However, if you cross from one field to another field across a public road the days off-road driving counts. A person can drive up to 56 hours in a fixed week. However, they cannot drive for more than 90 hours within 2 consecutive weeks. This is any 2 weeks together and the combined total must not exceed 90 hours. The RTWT 48 hour working week averaged over a 4-month reference period still applies.
What about the Lead Driller driving down and the Drilling Assistant driving back?
If there are two persons able to drive the driver puts their tacho card in slot 1 and the “passenger” puts their tacho card in slot 2. The 1st driver selects “Work” and the 2nd driver selects “duty”. Both drivers must remain in the vehicle for the first hour. If one of them leaves during the first hour the operation of the vehicle is considered to have only ever had one driver. You must not work more than 16 hours between the times of starting and finishing work – including non-driving work and you must have 11 hours rest before starting your next shift.
As the Judge stated “The relevant legislation is labyrinthine in nature” therefore it is extremely important to get expert legal advice. The DVSA and Police interpret and then enforce the legislation based on their interpretation, but the Courts make the final decision. The Driller/Driver, if driving a vehicle towing a CP rig further than 100km from their Yard must have a tachograph fitted in their vehicle and comply with the relevant legislation. If the driver is required to use a tacho card any day during the week they must use the card on each of the remaining days of that week and keep a record of the previous day’s hours. If the drill crew in the above example drove for 6 hours to get to site and worked a full shift, they should not work more than a 5 hour shift which would include driving time to their accommodation or Yard.
The law does not permit anyone to work for more than 6 hours without a break. In this example they couldn’t drive 6 hours home. From March 2018, during roadside checks, the DVSA traffic Officers will issue on-the-spot fines for any drivers’ hours offences committed in the last 28 days and can issue fines for up to 5 drivers’ hours offences. It means you could be fined up to £1,500 in a single check if you have consistently broken the rules. It also doesn’t matter if the offences took place in the UK or elsewhere.
The above is by necessity a basic explanation and further guidance is given in Ref 4 & 5 available from www.gov.uk
Author: BDA Safety Committee