It goes without saying there are innumerable factors that go into establishing a successful fresh produce business. And while the quality of that produce is paramount, the other factors should never be ignored. Take transport. If you’re an independent retailer, carrying your goods is a vital component. Losing a vehicle for even a short period would have a detrimental effect on your business. An outright ban would doubtless be the beginning of the end for your company
Until the end of the 1960s, heavy goods vehicles weren’t strictly regulated. However, defective and unroadworthy vehicles were increasingly causing accidents and blocking motorways. Something had to be done. Labour MP Barbara Castle’s 1968 Transport Act began to establish a set of regulations.
Running a vehicle or a fleet of vehicles – in particular any vehicle over 3.5 tonnes – means that you are legally bound to operate according to a prescribed set of rules and regulations enshrined in a vehicle operator’s licence.
Prompted by some recent cases within the fresh produce industry – Scottish wholesaler TR Caledonian Fresh Produce and a London-based fruit and vegetable retailer that was found to be acting as a front for an already banned operator – what are these rules and regulations then? In an attempt to make clear what obligations independent retailers are bound by, we spoke to Nick Denton, traffic commissioner for London and south-east England (there are seven traffic commissioners in total, each supported by a number of deputies, covering England – divided into six regions – Scotland and Wales. Details of each traffic commissioner can be found here).
Ignorance is never an excuse for failing to carry out duties according to the letter of the law, but in Denton’s estimation he finds that a number of operators in the food sector, especially in the cash and carry sector or in fresh food, tend to be people who started out moving their goods in 3.5t vans, which aren’t subject to any special licensing or regulations, and then have moved up to a 7.5t lorry, which is the next step, and they’ve not really understood all the different rules and regulations that apply.
Restricted operators vs standard operators
“Standard operators – Eddie Stobart, DHL etc.– can carry goods for hire and reward,” says Denton. But most independent are likely to be restricted operators. This means they can only carry their own goods.
“If you’re a restricted licence holder you don’t have to have a professionally qualified transport manager, whereas standard licence holders do,” he explains. “So it’s relatively easy to go from being a 3.5t van operator to a 7.5t lorry operator carrying your own goods, without really understanding – because you’re not obliged to have a qualified transport manager – what the rules are that you have to comply with.”
However, is it clear that operators need a licence? Will the dealer selling the HGV inform the buyer that they need a licence to operate the vehicle? Denton acknowledges that it isn’t always clear. “Some people don’t seem to realise that you need one,” he explains. “The seller should mention it, but they’re not legally obliged to do so. It’s assumed that people know the business that they are in, but sadly some people don’t. In the application form they sign up to a list of bullet points that basically spells out what is expected of them, but unfortunately it doesn’t always get read. We have been trying to produce a more user-friendly version, which sets out in really quite simple language what it is that the traffic commissioner or the legislation expects of them.”
In a nutshell, these operators promise:
*To keep vehicles taxed, insured and in MOT
*To check that drivers have the right licence to drive HGVs
*To keep vehicles and trailers roadworthy
*To obey drivers’ hours and tachograph rules
*That drivers will do a daily walk-round check of the vehicle (recorded in writing) before starting to drive
*To keep vehicle maintenance and driver check records for 15 months
*Not to operate more than the maximum number of vehicles on the licence
*To operate only from the operating centre(s) on the licence
*To tell the traffic commissioner within 28 days:
• About any convictions of the operator or staff
• A change in maintenance arrangements
• A planned change in entity (eg. from sole trader to partnership or limited company)
• A change in financial status (eg. bankruptcy or entering administration)
Denton expands: “It’s not rocket science, to use that dreadful cliché, all you need to do is ensure your vehicle is given an MOT every year, is inspected at regular intervals – every 8-10 weeks in that industry – that drivers look at the vehicles every day and record defects (and that those defects are rectified) and that they have a proper drivers’ hours regime with tachographs and someone to analyse it.
“We don’t expect fresh produce companies to analyse tachographs themselves, but there are people like the Road Haulage Association or any number of other organisations that do it for you for very little money – a matter of a few pence per driver, per day. It’s worth it to make sure you’re staying on the right side of the law.”
Written warnings up to disqualifications
If an operator is found to be in disregard of their obligations there are a variety of weapons at a traffic commissioner’s disposal depending on the severity of the offence.
*A minor infringement will result in a written warning.
*A more serious offence and they will get called into the commissioner’s office for a chat. “I’ll remind them what the rules are,” says Denton, “what they signed up to and that if they don’t get their act together things will get more serious.”
*Above that, an operator can be called in for a public enquiry after which licences can be suspended for a time – from 24 hours to a few months or so. A commissioner can reduce the number of vehicles a company operates or they can revoke the licence entirely and disqualify the holder or the directors from holding a licence again.
While suspensions aren’t common, they aren’t rare either. Last year, Denton revoked 58 licences. He suspended or reduced the number of vehicles on a further 93 licences. And he disqualified 14 companies or individuals from holding an operators’ licence in the future.
“Big companies have people whose sole job it is to ensure its vehicles run compliantly,” says Denton. “If you’ve got two or three vehicles and transport isn’t your main business – selling fruit and veg or delivering fruit and veg is – then we do tend to find it isn’t one person whose sole responsibility it is to ensure compliance. It’s not often the priority it should be. A lot of people only realise how important it is when they’re faced with the loss of their licence.”
Operator licence management courses
Denton recommends that all licence-holders take an operator licence management course. There are several organisations offering these courses, including the aforementioned Road Haulage Association, the Freight Transport Association or the Chartered Institute of Logistics and Transport, among others.
Denton: “You can’t always pick these things up by osmosis because you’re too busy doing other things. All the information is available online but not everyone is going to sit down for a few hours and go through it. It’s much easier to go on a seven-hour course, you can ask questions and you can interact with other operators. That would be my advice – before you start and not two years after when you’ve been hauled in front of a traffic commissioner.”
Checklists and codes of best practice
Licences have to be renewed every five years. On top of this, legislation is updated from time to time. The Driver Vehicles Standards Agency publishes documents from time to time updating best practice. These are all available on its website. Denton advises that all operators sign up for the DVSA’s weekly email that will summarise any developments.
Those wishing to drive a vehicle larger than 3.5t require a special category driving licence – this means taking a different test to the standard driving test. You must also gain a certificate of professional competence.
As someone hiring these drivers it is beholden on you to check that your drivers have all the correct qualifications. Denton advises that you check drivers’ licences every three-to-six months to ensure they haven’t had their licence suspended in the interim.
*Sign up for the DVSA Moving On email/newsletter
*Read the trade press
*Attend the odd training event: “Even if you went on a course at the start of your licence, five years down the line there will be some things that have changed. So it’s a good idea to re-attend every five years or so.”
“The main message I would get across is that operating HGVs is a serious business and particular rules and regulations apply. Operators need to understand them because if they don’t, sooner or later they will end up in the traffic commissioner’s office facing the loss of their licence. And probably the loss of their business as well. For the sake of a nail, as it were, it’s not worth it. With a bit of attention at the right time – at the start of licence – and a bit of upkeep you can avoid this fate very easily.”