Transport Managers : Professional competence

If a firm or company are to remain competent then the transport manager must be not only the holder of a certificate of professional competency but actually fulfil the role of transport manager.

Many companies appoint as their transport manager and CPC holder the fleet engineer. He is the man who purchases and services the trucks. He is the obvious choice to become the transport manager, or is he? Is he fulfilling the statutory obligations which are imposed on holders of an operators licence? Does he know what happens on the traffic side of the business?

What action can the Traffic Commissioner take against the operator?

The company must at all times be of good repute, be professionally competent and have the appropriate financial standing. The company will not be professionally competent and may not be of good repute, if it fails to use the transport manager as required under the legislation. If that is the case then revocation is likely to follow. Revocation of course would depend on theparticular facts in each case as to whether or not the company have failed to comply with these statutory obligations.

What is the requirement of professional competency?

The law requires that where a company is required to satisfy the requirement of professional competency, it does so,if and so long as:

• It has a transport manager or managers. in respect of its road transport undertaking.
• The transport manager is of good repute and professionally COMPETENT.

Is it simply enough just to employ a cpc holder?

It would be wrong to assume that a company merely had to employ a transport manager with the relevant qualifications, ie someone who has a certificate of professional competency. This is not the case. The company must employ someone who not only has the necessary qualifications, but uses them for and on behalf of the company ie he must not only hold the the title and qualifications in name only, but he must do the job, he must perform the management functions of a transport manager and accept responsibility for compliance.

How is professional competency satisfied?

The requirements of the legislation are clear that a person should be professionally competent. The legislation states that if you have passed an appropriate examination or some other qualification recognised by the Secretary of State or a grandfather rights certificate is held then competence is satisfied. The actual qualification itself cannot be taken from the holder, even when he has been found to be not of good repute. However, if the transport manager moves to another company as their nominated transport manager then, of course, the question of that new employer's good repute may be brought into question. Remember that in determining whether a company is of good repute, the traffic commissioner shall have regard to "any other information in his possession as to previous conduct of any of the company's, officers, servants or agents".

What is a transport manager?

The transport manager is statutorily defined as "in relation to a business, as an individual who is in, or who is engaged to enter into, the employment of the holder of a standard licence and who, either alone or jointly with one or more other persons, has continuous and effective responsibility for the management and the transport operations of business, insofar as they related to the carriage of goods".

What is the transport manager's role and responsibility?

The concept of the transport manager and his role in embodied in uk legislation which is in turn based on the EU directive. The directive refers to the requirement of a professional competent person who must have continuous and effective responsibility for the management of the transport undertaking but with a wider responsibility than simply the checking of tachographs and maintenance. It is the writers view that on the basis of the EU directive upon which UK legislation is based that the competent person in order to ensure full compliance must ensure that the operator remains of appropriate financial standing and therefore compliance in business and financial management.

What about delegation?

It has been argued that there is nothing in the Act which requires transport managers to actually undertake the management of the transport operations himself. The definition, it has been argued, makes provision for the role of the Transport Manager to be undertaken by himself or with others. This has not been accepted as being the correct interpretation of the Transport Managers role.

The Court have applied what they say is the common sense approach, namely that it is not matter of simply employing a transport manager with the relevant qualifications. The employing of that person must go one step further and ensure that he uses his qualification for and on behalf of the company. If that person does not perform the relevant transport management functions, then he is not acting like a transport manager. If he does not perform those functions then it is likely that the traffic commissioner will deem that the company does not have a transport manager for the purpose of the requirements of the Act and for that reason the company does not have the necessary professional competency as defined under the Act. The Company would fail to meet the requirements for an Operators Licence and its application for the licence in the first place would have failed and therefore, as it already had a licence, the traffic commissioner has the power to revoke the licence.

The High Court have determined that their approach, on this basis, is in line with the definition of a transport manager. The key element of the transport managers role is "responsibility for the operation of goods vehicles used under the licence and if the transport manager is not given that responsibility then the requirements of the Act are not met". The transport manager could delegate provided ultimate responsibility remains with him.

How do the courts view the transport manager?

The transport manager is considered by the courts as not merely an employee but part of the "brains of the company". The company can be just as responsible for his actions as it would with those of a director. The transport manager who does not fulfil his role and does not have continuously and effective responsibility for the management of the road transport undertaking and could render himself and the firm liable to prosecution. The transport company whose transport manager fails in his statutory duties may find themselves before the court for health and safety breaches relative to the transport operation or for manslaughter prosecutions if death results from such breach.

Is your firm compliant?

Has the firms transport manager a continuous and effective management role involving a proactive and reactive role. The obligation of the firm is to put systems in to ensure compliance with the operator licensing rules and regulations. The firm also has a responsibility to ensure those systems work and are thus effective. The responsibility for compliance rests with the company directors and the nominated transport manager. Is your nominated transport manager actually doing the job?

What happens if the transport manager is no longer employed?

There are special provisions to deal with situations where a company has a single transport manager and that single transport manager ceases to work for the business through dismissal, ill health or death, or in circumstances where he ceases to be of good repute. In such cases the traffic commissioner could give a dispensation to that company to continue to operate without a transport manager for periods up to 18 months, to enable them to find a replacement. There are similar provisions which exist in circumstances where companies have more than one transport manager and one of them leaves or dies. The traffic commissioner will need to be satisfied that there are some provisions undertaken by the company to ensure that the company complies with its regulatory obligations relating to overloading and speeding prevention, drivers hours, tachographs and for keeping its vehicles in a fit and serviceable condition at all times. The traffic commissioner is unlikely to grant a dispensation unless he is satisfied that road safety is not going to be jeopardised.

What happens if the operator is found not to be professional competent?

The traffic commissioner can and is required to revoke a licence if an operator fails to demonstrate, or is determined to be no longer professionally competent.

How can professional competency be retained?

The company must, if it is to retain its licence, ensure that the Transport Manager effectively does his job ie he carries out his duties and he has the responsibility for carrying out those duties. A Transport Manager must be allowed to actually fulfil his function. The company's management structure must allow him to actually fulfil his functions and responsibilities as set out under the Act. This is a necessary requirement for compliance to retain the operators licence. A clear job description of the company's transport managers role and responsibilities is advisable.

What must the transport manager do if he can't carry out his responsibilities?

The transport tribunal have made it clear that if a transport manager is prevented from fulfilling his statutory obligations then he must given written warning to his employer and if matters do not improve then resign rather than carry on when he his unable to perform his role. The transport manager should ensure that he quite simply does enough work to be able to comply with his duties as transport manager. If he is transport manager in name only then the operator and the nominated transport manager risk loss of repute and thus loss of the operators licence. The High Court took a different view when a transport manager was prevented from fulfilling his role by his employer but it is more likely than not that the traffic commissioners and Transport Tribunal would not follow the High Court's guidance.

Does your company comply? Do you want advice on how to be compliant? Contact the writer Gary Hodgson Partner Ford & Warren