Decision

Decision for NHB Transport Ltd – OF1115956 and Harmandeep Bajwa – Transport Manager

Published 15 May 2023

0.1 In the Eastern Traffic Area

1. Confirmation of the Traffic Commissioner’s Decision

1.1 NHB Transport Ltd – OF1115956 and Harmandeep Bajwa – Transport Manager

2. Background

NHB Transport Ltd holds a Standard National Goods Vehicle Operator’s Licence authorising 12 vehicles and 8 trailers. The Directors are Baljit Bajwa and Harmandeep Bajwa, who has been named as the Transport Manager since August 2016.

There are two Operating Centres at Breedon Aggregates, Stocking Lane, Cloud Hill Quarry, Breedon-On-The-Hill, Derby DE73 8AP and Harby’s Haulage, Granite Way, Mountsorrel LE12 7TZ. Preventative Maintenance Inspections are said to be carried out by LT Transport Services Ltd and Riva Commercials Ltd at 6-weekly intervals.

The operator held OC2000226 from 20 January 2017 with authorisation for 1 vehicle until it was surrendered on 1 June 2020. The operator suggested that all documents had been destroyed. Harminder Bajwa was listed as the Director and Harmandeep Bajwa as Transport Manager from 2016 to 2017 for Navdeep Transport Ltd, which held OC1147968. Harmandeep Bajwa was the Transport Manager from June 2017 to September 2020 on licences: OC2003820 and OF2030021, held by PNB Transport Ltd until they were surrendered in October 2020. That company now holds licences: OB2019038 and OF2043823 authorising 3 vehicles and 2 vehicles respectively. Harmandeep Bajwa was the Transport Manager between January 2019 to February 2021. Harmandeep Bajwa is the Director, with Jaspal Singh, of JNP Transport Ltd, which holds OF2022428, authorising 7 vehicles and 3 trailers. A Garry Mason is the Transport Manager. Harmandeep Bajwa was also nominated on incomplete applications made by GAM Transport Ltd (OC2017830) and Satnam Singh (OF2049459 and OF2051474 – see below). He was also nominated to act on OF2036991, held by JS Freightways Ltd, but that was revoked when it failed to provide relevant information.

The Company was incorporated in 2012 by Baljit Bajwa. His son, Harmandeep Bajwa, joined in 2020. Written representations describe it being engaged in the provision of tipper lorries to the aggregates industry. Those refer to an additional licence in the Northwest (OC2000226), which was surrendered in June 2020 due to operational changes. In evidence I heard that Mr Bajwa senior has been spending increasingly extended periods of up to 6 months in India, since the start of the pandemic. He has stayed as a Director to represent his financial interests but has not met the statutory duties under the Companies Act. The business decisions which led to the situation below were those of his son, Harmandeep Bajwa.

3. Hearing

The Public Inquiry was listed for today, 22 March 2023, in Tribunal Room 1 of the Office of the Traffic Commissioner in Cambridge. The company was present in the form of Mr Harmandeep Bajwa, Director and Transport Manager, represented by Anton Balkitis of Rotheras solicitors

4. Issues

The public inquiry was called at the request of the operators and following notice that I was considering grounds to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act:

• 26(1)(b) – condition to notify changes affecting good repute and the ability of the Transport Manager to meet Schedule 3;

• 26(1)(c)(iii) – prohibition (pages 93 and 94 re: 25 October 2021 for brake systems)

• 26(1)(f) – undertakings (vehicle to be kept fit and serviceable, driver defect reporting, complete maintenance records, drivers’ hours and tachographs)

• 26(1)(h) – material change;

• 27(1)(a) – repute, financial standing and with a Transport Manager meeting Schedule 3.

• 28 – Disqualification.

Harmandeep Bajwa was called separately to consider his repute as Transport Manager, under section 27(1)(b) and Schedule 3. He was put on notice of the power to disqualify him from relying on his Certificate of Professional Competence (see below).

The operator was directed to lodge evidence in support by 8 March 2023, including financial, maintenance and other compliance documentation. The financial evidence produced was not to the prescribed sum. The operator’s representative was notified of this by email dated 14 March 2023. The response suggested that the missing statements would be supplied in admissible form, to reach my office last week. The documents produced were not originals or verified, but even then, the sum was not demonstrated. This was blamed on the Clearing House but the operator had the notice in the call-up letter. An offer of surrender at the outset of the hearing was refused, so I proceeded to consider the conduct of the operator and Transport Manager.

5. Summary of Evidence

The statement of Traffic Examiner, Mrs Barwell (page 71) detailed how vehicle KX13 LVC was encountered by DVSA whilst being driven by Satnam Singh on 25 October 2021. That encounter took place at Crick, Northamptonshire. The vehicle was apparently displaying an operator licence identity disc for OC2000226, in the name of this operator but that licence had been surrendered in June 2020. There was a margin on this licence.

The vehicle was unladen but found not to have a current vehicle excise licence in force at the time of the encounter. A roadworthiness Prohibition Notice was issued for a defective brake (page 93).

At the time, Satnam Singh was awaiting a decision on his application (OF2049459) but claimed to be working for this operator. Mrs Barwell spoke to Harmandeep Bajwa. He confirmed that the vehicle was being operated under this licence, OF1115956. The Traffic Examiner noted that the vehicle was locked in to PNB Transport Ltd on 22 May 2019 and 4 January 2021. It held OC2003820 and OF2030021 until they were surrendered in October 2020. Harmandeep Bajwa was the Transport Manager from June 2017 to September 2020. It had held OB2019038 since 16 January 2021. The vehicle was locked to this operator from 4 January 2021. It was specified on this licence between 5 April 2016 and 29 April 2017 and again from 25 October 2021.

Harmandeep Bajwa emailed from an account referring to JNB Transport. He claimed that the vehicle came back into the possession of this operator on 19 October 2021, but Mrs Barwell noted that Satnam Singh was recorded as driving from 1 October 2021. She also records that JNB Transport Ltd downloaded the Vehicle Unit on 25 October 2021 (i.e. the day of the stop) at 07:09 after the driver inserted his card at 07:06.

Harmandeep Bajwa was interviewed under caution on 8 February 2022 (page 77). He confirmed that the operator employed Satnam Singh on the day of the stop, but clarified this by saying that he was a contractor (invoicing for work), who was buying the vehicle. He claimed that the vehicle used to be owned by this operator, but insisted that it was the operator on that day, using it for a contract with Breedon. Immediately before the hearing I was supplied with a letter from Breedon Trading Ltd dated 7 March 2023 indicating 4 weeks-notice of termination (from 6 April 2023) of the contract due a downturn in deliveries from the Cloudhill Quarry

A partnership with “PNB Transport” wanted to purchase it and it was in its possession for 18 months to two years. He ceased to be a Director in January or February and it was then returned to this operator in October 2021. He claimed that Aggregate Industries was responsible for taxing the vehicle. He admitted that no checks were made, so he was unable to answer why the vehicle was not specified on this licence.

He produced an invoice for Satnam Singh referring to 18 periods of driving at £130 each. Mrs Barwell identified that the contract only covered 11 days – 5 one week and 6 the next. Harmandeep Bajwa claimed that Satnam Singh must have been working for some else. He claimed that PNB Transport was operating between 26 October 2020 and 25 October 2021. From May 2021 this operator was said to be relying on FleetGo to analyse driver records. Harmandeep Bajwa had been receiving the driver reports but referred to Garry (Mason) taking over. This operator and JNB both use FleetGo. He alleged that they had mixed up the company cards and apparently downloaded with “JNB, they’re both my companies so not really separate, but we’ve now set up 2 separate logins to separate the businesses”. He suggested that the partner wanted to start, so he had bought two lorries. He was not aware of the revocation.

Correspondence dated 20 June 2022 put the operator on notice of potential action. Written submissions, drafted by Rotheras Solicitors, signed by Harmandeep Bajwa, and dated 11 July 2022 were received. That states that the operator purchased KX13 LVC to work on an Aggregate Industries UK Ltd contract at the Topley Pike Quarry. The vehicle is said to have been purchased on a 5-year hire purchase agreement arranged through Aggregate Industries UK Ltd on preferential rates, but the operator paid for repairs, maintenance, fuel (by set-off) and driver wages. However, Vehicle Excise Licence and the V5 were held by Aggregate Industries UK Ltd but the duty was ‘recouped from the subcontractor payments’ made by Aggregate Industries UK Ltd.

The representations state that Harmandeep Bajwa and Avtar Singh decided to go into business in 2018 with Avtar Singh and they became joint directors of PNB Transport Ltd. KX13 LVC was sold to PNB Transport Ltd, and the finance agreement was novated over from this operator after agreement with Aggregate Industries. It is now stated that Mr Singh drove of KX13 LVC. That continued until the two Directors of PNB Transport decided that they no longer wanted to work together, and Mr Bajwa resigned in December 2020. The assets were split KX13 LVC was to be transferred back again to this operator, but the finance could not be novated back. They agreed to transfer it, once the finance was satisfied in a year. It remained parked at NHB’s site at Coalville until it started work on the Breedon Aggregates contract in April 2021. He accepts that he should have checking and that it should not have been specified on the NHB licence during that period. The relationship with Mr Singh deteriorated and he was unable to secure the V5. It was taxed immediately after the roadside stop. The disc for OC2000226 had not been returned when the licence was surrendered. This is described as an oversight.

The operations were further confused by the decision of Harmandeep Bajwa and Jaspal Singh to incorporate JNB Transport Ltd in February 2019 and to apply for OF2022428. Mr Bajwa was the nominated transport manager and thought it was acceptable to use remote downloading software in the name of JNB Transport Ltd across the separate entities, saving the expense of a separate account in the name of this operator. This was more than an administrative oversight and called into question his approach as a Transport Manager. The analysis company should have been alerted by the provision of two separate company cards.

Harmandeep Bajwa referred to the driver, Satnam Singh, who had asked to buy the vehicle from NHB Transport. It was agreed with Mr Bajwa that he would drive the vehicle for this operator pending his own licence, initially on a self-employed basis. This came dangerously close to a device to circumvent the licensing process. For some reason Mr Bajwa referred to irrelevant IR35 self-employment criteria. No reference was made to the HMRC guidance (see below). Mr Singh’s licence application was refused, and this operator retained the vehicle. I was referred to various invoices to this operator for its operation from April 2021. I saw invoices from LT Transport Services Ltd to this operator dated 7 June, 15 July, 24 August, 21 October, 9 November 23 December 2021, 27 March, 28 April 2022.

I recorded the following observations from my dip sampling of the operator’s records produced in advance of the Public Inquiry:

5.1 KX13 LVC – only three driver defect records produced, numbered 6619, 6630 and 6652 (I contrasted that with evidence of an app being used by the operation.)

• 18 February 2023 – inspection with no discernible brake test. It also records defective side light and wiper. The deriver defect report for 17 February 2023 records the defective light, with reference to the mechanic but not formally signed off.

• 2 January 2023 – inspection with decelorometer brake test.

• 16 November 2022n – inspection with brake test: 60%, 29%, 27% but reference to a 30% slip and imbalance of 23%. It also records defective horn and wipers, with worn tyres and brakes and low engine oil. No discernible driver defect report.

• 13 October 2022 – inspection with brake test: 36%, 17%, 15%, but only tested at 35% of GVW It also records imbalance in brake pads and steering.

• 1 September 2022 – inspection with no discernible brake test.

5.2 AY65 BYM

• 24 August 2022 – inspection (29+ weeks prior to the hearing) with no discernible brake performance check beyond a road test. It also records defects with axle and wheel bearings.

• 7 July 2022 – inspection (10 weeks since the previous) with no discernible brake performance check beyond a road test.

• 28 April 2022 – inspection with brake test: 46%, 30%, 34% but imbalances of 34% and 30% on axle 3, 32% on axle 2, and 24% on axle 1. There was an apparent retest.

• 26 January 2022 – inspection with no discernible brake check. It also records issues with wheel bearing and steering, to be monitored.

The email from my office of 14 March 2023 alerted the operator’s representative to an absence of wheel security records. The response suggested that Mr Bajwa had retained some wheel removal tags and that he would email copies, to then be forwarded. The day before the hearing I received a photograph of one tag dated 4 August 2022.

6. Determination

Based on the evidence summarised above I was satisfied that I should record adverse decisions under the following sections; 26(1)(b) – condition to notify changes in management and the ability of the Transport Manager to meet Schedule 3; 26(1)(c)(iii) – single prohibition, 26(1)(f) – undertakings (vehicle to be kept fit and serviceable, driver defect reporting, complete maintenance records, drivers’ hours and tachographs), 26(1)(h) – material change in finance and the position of the Transport Manager (see below). The operator failed to provide admissible evidence against which financial standing could be confirmed. I was told that all vehicles had been removed with the intention of winding up the business. I recorded that adverse finding under section 27(1)(a). There was no application for a Period of Grace, making revocation inevitable.

I did not consider that the above amounted to effective or continuous management. I refer to the arrangement with Satnam Singh as an illustration. In 2019/54 Bridgestep Ltd & Tom Bridge, the Upper Tribunal referred to the practice of drivers classify themselves as self-employed. 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”. There was nothing before the Tribunal to confirm that the arrangement between the appellant and its drivers was compliant with the HMRC guidelines. The Upper Tribunal referred to a conscious decision to enter into an arrangement with the company’s drivers which was highly questionable if not a sham. The reasons for doing so were anti-competitive being as they were, concerned solely with the cost of employing the drivers and by reducing that cost, gaining a competitive advantage over other compliant operators. The Tribunal went on to describe the vast majority of operators making the right decision to employ their drivers, paying national insurance, pension contributions, holiday and sickness entitlement. The consequence in that case was that the company and Transport Manager felt unable to give any instruction to drivers whether it be in relation to route planning or otherwise and consequently, were unable to have continuous and effective management of the transport operation.

I was assured that this arrangement extended to Satnam Singh only, but it is a further illustration of the chaos which was allowed to exist, purely as a result of the confusing business arrangements adopted by these Directors and mainly Harmandeep Singh. The lack of employment contract with Satnam Singh represented a potential advantage during a period when every operator has felt the impact of the driver shortage. In submissions I was told that the operator regrets the confusion and the errors that have occurred, mainly through the actions of Harmandeep Bajwa. It denies any dishonest intent. The involvement of Garry Mason was not pursued. I noted that Mr Bajwa attended a Transport Manager CPC refresher course in December 2021 had failed to prevent the circumstances above and that even at the date of the Public Inquiry he had failed to ensure compliance. In those circumstances I was satisfied that I should make that finding against his repute under section 27(1)(b) and prevent him from relying on his Certificate of Professional Competence. Mr Bajwa communicated that he has no intention to rely on the Certificate, in the near future. If he wishes to do so in future, it will be open to him to make an application under Schedule 3 to vary this direction, at which point he will need to satisfy a commissioner that he is capable of discharging the statutory duty.

In the absence of financial standing and a Transport Manager who meets Schedule, the operator was not able to ensure future compliance. Mr Bajwa is booked to attend Operator Licence Awareness Training by Driver Hire on 12 May 2023, but his father has not exercised his duties as Director for some time, with his involvement limited to very rare occasions when he drives. I took account of the annual test pass rate and that this was the first Public Inquiry, but the circumstances above indicated that it should now be removed from the industry. I recorded that loss of repute under section 27(1)(a). On hearing representations, I determined that the revocation could take effect from 23:45 on the day of the hearing. In line with the approach described in the Senior Traffic Commissioner’s Statutory Document No. 10, I disqualified the operator from holding or seeking an operator’s licence for a period of three years. Noting that Mr Baljit Bajwa was not involved in the management decisions, I issued a warning that he should not remain named as a director if not meeting those statutory duties. Noting that Harmandeep Bajwa is now disqualified from relying on his Certificate of Professional Competence and that he has already commissioned an audit in respect of his other operation, I determined that disqualification was not necessary in the circumstances of this case, but he received a strongly worded warning as to his conduct as a director.

R Turfitt

Traffic Commissioner

22 March 2023