Drivers’ working time. Statutory definitions. The concept of drivers’ working time
Drivers’ working time. Concepts within the scope of drivers’ working time
Drivers’ working time: Concepts within the scope of drivers’ working time – part 2
The presented article is the first in a series concerning drivers’ working time. Subsequent articles, discussing this subject in detail, will be presented in future issues of “Logistyka”. The author’s intention is to present these issues from a practical perspective, thereby enabling interested parties to find answers to current questions.
Sources of law
In the Polish legal system, drivers’ working time is regulated by the following legal acts:
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The Act of 16 April 2004 on drivers’ working time (Journal of Laws 04.92. 879 as amended) – hereinafter referred to as the Act
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Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 (OJ EU L 2006.102.1) – hereinafter referred to as the Regulation
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The European Agreement concerning the Work of Crews of Vehicles Engaged in International Road Transport (AETR), done at Geneva on 1 July 1970 (Government declaration of 30 August 1999 on the ratification of this European Agreement by the Republic of Poland, Journal of Laws 99.94.1086 and 1087) – hereinafter referred to as the Agreement.
Due to the existence of several legal acts regulating the same issue, entrepreneurs often face the problem of which of the aforementioned legal acts should be applied to a given transport operation. The following text aims to resolve at least some of the doubts regarding the scope of application of individual regulations.
Application of individual legal acts
Which of the aforementioned legal acts will apply to a specific transport case depends on the nature of the driver’s employment, the type of vehicle, and the territory through which the transport takes place. Below, in points A, B, and C, the application of individual legal acts is presented in relation to each of the aforementioned criteria separately and independently of the other criteria.
A. Nature of the driver’s employment.
In relation to drivers employed under an employment contract within the meaning of the Labour Code, each of the listed legal acts will apply. However, in the case of drivers employed under a mandate contract or another civil law contract to which the provisions on mandate apply, as well as drivers providing their services as part of their own individual business activity, only the provisions of the Regulation or the Agreement will apply.
B. Type of vehicle.
The Regulation and the Agreement apply exclusively to road transport of:
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goods (cargo), when the maximum permissible mass of the vehicle including a trailer or semi-trailer exceeds 3.5 t
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passengers, by vehicles constructed and intended for the carriage of more than 9 persons including the driver.
In addition to the above general rule, it should be remembered that there are several categories of transport excluded from the obligation to apply the provisions of the Regulation or the Agreement. Such exceptions are provided for in Article 3 and Article 13 of the Regulation and Article 2 of the Agreement, although the individual categories of excluded transport unfortunately do not overlap. The Act, on the other hand, applies to every type of transport, regardless of the type of vehicle (truck, passenger car, special vehicle). This means that, for example, only the Act will apply to a company president’s driver driving a passenger car.
C. Territory through which the transport takes place.
The Act applies to every road transport, regardless of whether it is domestic or international transport. The Regulation applies to road transport (domestic and international) performed:
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exclusively within the territory of the EU (including exclusively within the territory of Poland or partly in Poland and partly in another EU country)
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between the EU, Switzerland, and countries that are parties to the Agreement on the European Economic Area (EEA).
Regarding the Agreement, its scope results from the content of the Agreement (Article 2(1)) and the content of the Regulation (Article 2(3)). In principle, the Agreement applies only to international transport through the territory of the parties to the Agreement by a vehicle registered in the territory of a state that is a party to the Agreement. However, if the transport takes place partly in the territory where the Regulation applies and partly in the territory of states that are parties to the Agreement or third countries, i.e., countries not covered by either the Regulation or the Agreement, then the Agreement is applied instead of the Regulation:
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on the entire route, if the vehicle is registered in an EU state or a state that is a party to the Agreement
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on part of the route, i.e., the part passing through the territory of the EU or states that are parties to the Agreement, if the vehicle is registered in a third country.
The article comes from the magazine “Logistyka” 5/2010.