Drivers’ working time. Sources of law and scope of their application
Drivers’ working time. Concepts within the framework of drivers’ working time
Drivers’ working time: Concepts within the framework of drivers’ working time – part 2
The presented article is the second in a series of publications concerning drivers’ working time. Subsequent articles discussing this issue in detail will be presented in future issues of “Logistyka”. The author’s intention is to present the discussed issues from a practical perspective, thereby enabling interested parties to find answers to current questions regarding the subject matter.
Statutory definitions
General remarks. Each of the three basic legal acts concerning drivers’ working time, i.e., the Act, the Regulation, and the Agreement, contains its own catalog of definitions, although these catalogs differ in the number of definitions (the broadest is the catalog contained in the Regulation, and the narrowest in the Act). Furthermore, only one legal act, namely the Act, does not introduce its own definitions of certain concepts, but instead refers to other legal acts regarding these concepts, specifically to the Regulation and to the Act of September 6, 2001, on Road Transport (Journal of Laws 01.125.1371 as amended).
Explanation of concepts. Here, some concepts used in the discussed legal acts will be explained, i.e., those that raise interpretative doubts, with the definitions themselves being cited only to the extent necessary to discuss a given concept; therefore, to familiarize oneself with a definition in its entirety, one should refer to the appropriate legal act. Furthermore, this article will discuss only general concepts, i.e., those not directly related to working time. Those that directly relate to working time will be discussed in subsequent articles.
Driver. The legal definition of a driver is found only in the Regulation and the Agreement, and both definitions are very similar. In both legal acts, the concept of a driver boils down to the actual performance of driver duties. As for the concept of a driver within the meaning of the Act, a comparison of case law and doctrine also leads to the certain conclusion that a driver is a person who actually performs the duties of a driver. Thus, formal employment of a person in such a position is not sufficient. A problem also arises in the case of combined positions, for example, driver-service technician or driver-warehouse worker – should the regulations on drivers’ working time apply to such a person? The dominant feature of the employment will be the deciding factor, which, however, can cause many difficulties in practice. Therefore, each case must be assessed individually. For example, if an employee is generally sent to provide service, even if the commute itself takes longer than the service, then – in the author’s opinion – the feature of the service technician position will dominate; if the employee’s main duty is delivering goods (for example, from a wholesaler to a store) and only assisting with unloading and arranging goods in the warehouse, then the feature of the driver position will be decisive. In any case, however, only courts have the exclusive competence to assess whether a given person is a driver within the meaning of the regulations on drivers’ working time, which is confirmed by the National Labour Inspectorate in its position of August 11, 2008 (reference: GPP-302-4560-609/08/PE). Thus, a labor inspector during an inspection does not have the authority to resolve such doubts.
Road transport. The Act refers in this regard to the Act of September 6, 2001, on Road Transport, where the relevant definition is found in Art. 4 points 1-3. When analyzing this definition, several aspects should be noted.
Firstly, the performance of road transport cannot be understood as the performance of factual activities related to the movement of a vehicle on roads. It is not about driving a vehicle by a driver, but about conducting business activity consisting of providing transport services. Secondly, the case law of administrative courts holds that the performance of road transport must be treated as a factual action consisting of the carriage of persons or goods (or rather, the provision of services in this regard), corresponding to the defined road transport, but it does not have to constitute the subject of a permanently conducted business activity, let alone a registered one. This means that even if a person performs occasional paid transport of persons or goods, or conducts activity in this regard without registering it with the appropriate authority, they are still subject to the regulations concerning road transport. On the other hand, the mere entry of a specific entity into the business register does not mean that it should be perceived as an entrepreneur in all aspects of its operation. It is easy to imagine a situation where an entrepreneur conducting business activity in the field of road transport uses a vehicle for a purpose that has nothing to do with the conducted activity, for example, for their own move.
The article comes from the “Logistyka” magazine 6/2010.