Decision

Decision for Highway 86 Transport Ltd (OF1149059) and Mateusz Hubert Marcinowski - Transport Manager

Published 8 October 2020

In the Eastern Traffic Area.

Confirmation of the traffic commissioner’s decision.

1. Background

Highway 86 Transport Ltd holds a Standard International Goods Vehicle Operator’s Licence authorising 10 vehicles and 10 trailers, which has been in existence since 28 December 2016. There are two Directors: Marcin Marcinowski and Mateusz Hubert Marcinowski, who is also the Transport Manager.

There is one Operating Centres as RVM Group, Kings Cliffe Industrial Estate, Kings Cliffe Road, Wansford, Peterborough PE8 6PB. Use of that Operating Centre is subject to two additional conditions. The declared maintenance contractors are Lawman Commercial Services Ltd and Commercial Fleet Services 6 weeks and 8 for trailers.

The operation started with a single goods vehicle for two-shift, traction-only container transport from Felixstowe docks. In 2019 there was less container work, which necessitated a restructuring of the Company, which apparently led to the application. I was initially told that business conditions had worsened. It was encouraging to hear that work has started to come in again.

2. Hearing

The Hearing was originally listed for 6 April 2020 but had to be postponed due to the pandemic. It was heard today, 21st July 2020, Tribunal Room 1 of the Office of the Traffic Commissioner, Cambridge. The operator was present in the form of Marcin Marcinowski and Mateusz Marcinowski, represented by Mr Chris Powell, a solicitor with Rotheras.

3. Issues

The public inquiry was initially called for me to consider whether there were grounds for me to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:

• 26(1)(c)(iii) – prohibitions – page 129
• 26(1)(e) – statements of expectation – 6 weekly inspections
• 26(1)(f) – undertakings – vehicles and trailers to be fit & serviceable, effective written DDRS, maintenance records.
• 26(1)(h) – material change
• 27(1)(a) – repute, financial standing, professional competence
• 27(1)(b) and schedule 3 – transport manager – repute and professional competence
• 28 – Disqualification (operator and transport manager)

and section 17 for the variation application to increase authorisation to 15 vehicles and 15 trailers by reference to:

• 13A(2)(b) – repute
• 13A(2)(c) – financial standing
• 13A(2)(d) – professional competence
• 13C(2) – drivers hours and tachographs
• 13C(4) – vehicles fit and serviceable

In its written representations (page 136), lodged in April, the operator communicated its understanding that it would not be appropriate to pursue the existing application for an increase in authorisation at this time and asked for it to be withdrawn.

4. Summary of Evidence

The application to increase authority justified a Desk Based Assessment, conducted by DVSA’s Remote Enforcement Office. That Assessment was conducted after some difficulty on the operator’s part to supply DVSA with relevant data. This can be seen from the correspondence set out at pages 44 to 91 of my bundle. I gather that the operator was unable to supply the Vehicle Unit data. It proved equally difficult for its consultant, Mr Fairey of JHF Transport Services Ltd.

The Traffic Examiner (TE) noted:

• Concerns with first use checks,
• Issues with walk rounds and driver defect reports
• A lack of written DDRS audits.
• A lack of regular brake performance testing. Following the visit, it was indicated that Lawman Commercials was installing a roller brake tester but in the meantime, temporary arrangements had been made with a local supplier. I was told at the hearing that the installation had not taken place.
• Vehicle Units were downloaded within 90 days, and driver cards every week. The operator indicated its intention to reduce vehicle downloads to monthly. The operator is provided with weekly reports of driver infringements. The operator committed to recording the interaction with the driver and to back this up with refresher training, competency checks and formal disciplinary processes.
• the operator had recently changed systems including a phone application.
• I have heard about the improvements to the driver defect reporting and its management. The language issues encountered by some drivers have apparently been addressed with translations available within the cab and through induction in first or second language. Drivers return to the Operating Centre on a daily basis, but their start times are varied. Spot checks had decreased in number but there is a commitment to 1 or 2 per week. I accept that as a statement of intent. Agency drivers and new starters will continue to use duplicate books whilst log-in details are requested for the app.
• There were issues with communication and training for drivers and staff. The operator planned refresher training for relevant topics.

The following month, there was a follow-up where the Vehicle Examiner found:

• numerous defects identified at inspections which should have been picked up during driver walk round checks (including inoperative lights at almost every inspection and insecure wheel nuts)
• Inspection records were not available for three vehicles, amounting to approximately 51 weeks.
• the operator was also unable to produce metered brake efficiency test records,
• any evidence of wheel fixing security systems
• initial and final failure rates at annual test.

The Traffic Examiner found:

• that the systems in place fell short of monitoring drivers’ hours and tachographs;
• the VU data requested, was unavailable until 11 November, when a third party had to download and provide that data;
• that VU data had not been part of the operator’s analysis, with essential reports such as driving without a card not available for viewing;
• a number of drivers’ hours offences, many of which could apparently have been avoided through better time management;
• 21 days where driving without a card was identified, for six of which they were unable to provide an explanation.

The operator responded to DVSA in November 2019. The Remote Enforcement Office requested documentation, in order to complete an update but regrettably that was not supplied in advance of the Public Inquiry.

In representations in April, the operator indicated that it was relying on Smartanalysis software at the time of the DBA. It now uses the Convey tachograph analysis system, but that does not really explain why it was not properly monitoring drivers’ hours and infringements. I gather that efforts were made to download vehicle units and driver cards, but it was only as a result of the DBA that the operator realised that vehicle unit downloads were not being uploaded for analysis. I am told that some data was being uploaded, but it is clear that there was insufficient scrutiny. Ms Teasdale has been very fair in identifying that a number of infringements arose from driving a few minutes over the permitted driving time. They could have been avoided with proper management. The Transport Manager told me that he only had experience of downloading this system (with errors as it turned out) and was not qualified to notice the failure to download as nothing alerted him to that error. He now has assistance in the office from a transport planner.

If the Transport Manager and operator had only looked at the product it should have dawned on them that the analysis was not being carried out and that missing mileage reports were not being produced. Their lack of attention is to blame for the drivers’ hours infringements, including 21 instances of driving without a driver card. Entirely reactive work has attempted to show that a number of offences occurred when the vehicle was off the road. This only goes to further illustrate the importance of an effective VOR policy.

The operator accepts that preventative inspection records were allowed to be incomplete. It later showed that periods which were thought to have been extended were largely when the vehicle was off-road. This was recorded on the planner rather than through a recognisable VOR system. The representations refer to a practice of ensuring that a first use inspection took place after a period off road. That again emphasises the importance of a proper VOR and to ensure that all records are wholly complete.

It remains the case that Lawmans Commercial Services Ltd is one of the operator’s chosen contractors. The operator had vehicles on hire purchase from that supplier but has since September 2019, favoured Commercial Fleet Services Ltd, after issues with obtaining completed preventative maintenance inspections. The Company now owns all its vehicles. I am unclear how the operator and Transport Manager permitted the situation described in the DBA, where regular metered brake testing had not been taking place. The starting point as set out in the Guide to Maintaining Roadworthiness is that roller brake tests should take place at every Preventative Maintenance Inspection. The Guide has been in circulation since November 2018. Representations indicate that it took until September 2019 for the operator to instruct a contractor and then it was to undertake the minimum number of tests, at every other Preventative Maintenance Inspection.

Again, it took until September 2019 to commence remedial work with a wheel retorque register. I am told that the operator is familiar with the DVSA policy documents: “Careless Torque Costs Lives” and the “Guide to Maintaining Roadworthiness”. I can only presume that this familiarity developed after the intervention of DVSA. It is alarming to think that the operator only then arranged for a tyre fitter to carry out a re-torque after the removal of wheels. The risks from wheel loss have been well known throughout my years of appointment. I heard in evidence that the operator has now adopted a windscreen notification process, which advises drivers of when the tyre contractor has removed a wheel during the monthly attendance at the Operating Centre. The wheel is then retorqued at 60 miles.

The absence of proper scrutiny of the maintenance arrangements is confirmed in the operator’s acceptance that driver detectable defects were being left and only picked up at the Preventative Maintenance Inspections. Mr Fairey told me that there had been attempts to engage with the contractor, but the operator had not recorded anything.

The Transport Manager, Mateusz Marcinowski, has been prompted to audit the driver defect reporting system. The suggestion in the representations of intervention every three to four weeks has been improved upon. I was concerned to hear that some drivers continue to be employed through service companies. This presents a genuine risk to the future of this operation. I refer to the recent Upper Tribunal decision in 2019/54 Bridgestep Ltd & Tom Bridge, where the Tribunal commented that the legitimacy or otherwise of a driver’s self-employment status is fact specific and as the Factsheet produced by the RHA on self-employment contained within the bundle makes clear: “Unless they are an owner-driver, it is very rare for a lorry driver to be legally “self-employed”. The Tribunal also made reference the HMRC guidelines. This is a matter of fair competition with most operators making the right decision to employ their drivers, paying national insurance, pension contributions, holiday and sickness entitlement. It impacts on this operator in terms of its ability to discipliner drivers who are not its employees. It must be remedied and has given a statement of intent for 30 September 2020.

5. Determination

I am satisfied to the civil standard that there have been breaches of the Operator Licence requirements such that support adverse findings under the following sections: 26(1)(c)(iii), 26(1)(e), 26(1)(f) and 26(1)(h).

The operator has no previous Public Inquiry history. Its claim to have cooperated with the DBA is slightly blunted by its inability to produce the records, requiring the intervention of its consultant and resulting in a waste of Examiner time. I am told that it deeply regrets these circumstances.

I am not attracted by representations based on percentages of failure. Drivers’ hours compliance has frequently been referred to by the Upper Tribunal as fundamental to road safety. The Operator’s Licence does not require operators to meet a certain percentage of compliance; it demands more than just a national average, but I have taken note of the Traffic Examiner’s comments. What is of greater concern is what these shortcomings say about the management of the transport operation and the oversight of the Directors. As the Upper Tribunal indicated in 2013/082 Arnold Transport Ltd, the fitness of Directors is an essential element in determining the repute of the operator. Their decision making failed to prevent the identified shortcomings.

The starting point is always to consider the question posed by the Tribunal in 2009/225 Priority Freight: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? As the Tribunal remarked promises are easily made, particularly at Public Inquiry but actions speak louder than words. I am told that the operator grew too fast in the two years from 2017 to 2019. This has been compounded by the restructuring of the business away from its established working practices. I accept that a number of remedial measures have been implemented. I have no information from DVSA to suggest that they are not working.

I should have been able to trust the Transport Manager to ensure that this did not impact on compliance. The position was usefully described by the Tribunal in 2012/025 First Class Freight:

While it is true that a transport manager must “effectively and continuously” manage the transport activities of the undertaking for which he or she works and is now required to be familiar with a wide range of topics, including the law in relation to operator’s licensing, that does not mean that the person or persons who control an entity which operates heavy goods or public service vehicles is or are absolved of responsibility. Such a person must know enough to ensure that someone employed as a transport manager is up to the job and they must also be able to supervise them to ensure that they do a proper job. It is, after all, for the director or directors of a company to set the standards which the employees are required to meet.

Neither did their jobs effectively enough. I was told that the operator felt trapped by its maintenance and hire purchase arrangements. Those do not absolve it of the licence requirements.

In this case Mateusz Marcinowski appears to be doubly culpable. Following the decision in 2015/049 Matthew Reynolds, if a Traffic Commissioners finds that a Transport Manager has not exercised effective management, that is the basis for a finding that they have lost their repute. That in turn would impact on the ability of this company to continue to hold an Operator’s Licence. I am concerned as to the proportionality of that outcome. It remained the case until shortly before this Public Inquiry, that Mateusz Marcinowski had received no refresher training. That took place less than a week ago even though formal notice was first communicated on 4 March 2020. I was concerned that even then Mr Marcinowski was not aware of what to expect from a metered brake test. In the first instance he would do well to refer to the DVSA Guidance: Heavy vehicle brake test: best practice:

Remember: a locked wheel does not always mean a good brake

2 - Preparing your vehicle for the brake test

Authorised Test Facilities (ATFs) are responsible for making sure that vehicles are properly loaded before the MOT starts. This normally means at least 65% of the vehicle design axle weight (DAW). You can do this in a number of ways:

• by arranging to load the vehicle or trailer yourself
• by asking the ATF to provide load simulation - a loading fee may apply
• in the case of a tractor unit, using ballasted trailers - ask your local ATF if they have one for hire

Where load simulators can’t be placed above the rear axles, vehicles or trailers - unless exempt by design - must be loaded when tested. This includes:

• any multi-axle vehicle or trailer (excluding tri-axle semi-trailers) with a bogie weight exceeding 10,000kg
• tri-axle tractor units that are fitted with air suspension on any of the rear axles: to provide sufficient load these must be coupled to a loaded semi-trailer, so that the drive axle is loaded at or very close to the plated weight shown in column 2 of the plate and plating certificate

When loading a vehicle for brake test:

• place loads close to the rear axles
• aim to apply at least 65% - and not less than 50% - of the design axle weight to each axle
• if possible, use similar loads to add weight to the vehicle: this will help in placing the loads correctly, and achieve consistency between tests
• where load simulators can’t be placed above the axles - unless exempted by design - the vehicle or trailer must be presented laden

Mr Fairey has also indicated that he will supply a copy of the FTA’s Brake Test Report.

The operator has been too slow to react in the past. I was asked to accept that the changing dates for departure of from the EU had as real impact on the business. There can be no repeat of the failures in management. The appeal Tribunal made the distinction between different interventions in 2013/047 Dundee Plant Hire Ltd, where an operation is allowed to continue without the inconvenience of a fresh application and interruption in business. However, as was suggested in the recent appeal of 2019/025 John Stuart Strachan t/a Strachan Haulage: “one of the aims of the regime is deterrence, both for the appellant and for operators as a whole, who might be tempted to flout the system”. I judge that the withdrawal of the application is not sufficient for those purposes.

I refer to the positive and negative aspects of this case, which I have attempted to identify above. On that basis I have reached a starting point, assessing this case to fall within the Moderate to Serious bracket. On hearing representations, I am persuaded to adopt the lower of those starting points. I am also mindful, having heard details of the operator’s business and the recent changes in customer requirements, that my direction should take account of the wider trading environment. The Operator’s Licence will be curtailed by two vehicles for a period of 14 days commencing 23:45 on 2 August 2020. The repute of the operator and the Transport Manager is severely tarnished by these events. There can be no repeat. I will accept the undertaking for a full compliance audit to test the commitments made – to be lodged with OTC within 6 months of this date.

RT/TC/21/7/20