Traffic Commissioner gives Abus decision
Traffic Commissioner, Kevin Rooney, has given a decision on Abus. He said the Bristol operator’s licence will be suspended from 11:59pm on 31 January 2019 unless the way the business is run is changed.
Provided the operator is working positively towards restructuring operations to be fully compliant with the law, the suspension date can be varied or the order set aside if restructuring is completed before that date. Alternatively, should the operator wish to appeal this decision, given the generally compliant operation and the unique circumstances, a stay will be granted.
The news is in addition to a fire the operator suffered last week, which destroyed ten of its vehicles (see B&CB1505, 9 November 2018). Avon Fire and Rescue said the cause of the fire was deliberate.
Following a maintenance investigation in May 2018, a Vehicle Examiner expressed concern over Abus’s relationship with L C Munden & Sons Ltd. He reported that the two businesses were co-located, that the vehicles were owned and maintained by Mundens and the drivers were employed by Mundens. For these reasons, Rooney decided to call the operator to public inquiry.
Abus Transport Manager, Alan Peters, told the Traffic Commissioner that he started in 1991 as a sole trader, owner-driver with one vehicle. Safety inspections were conducted at Buglers’ site at this time, while his vehicle was parked at Mundens. He had initially hired one driver from Mundens to cover a period of leave. That had grown to the current position.
He and Simon Munden had gone to school together and worked closely all their lives. Prior to the grant of this licence, all Mundens’ [aka Crown Coaches] vehicles had been on hire to his former sole trader licence. It was easier for him to show financial standing, so the Mundens licence was surrendered and all work contracted through Abus. Mundens had PAYE payroll systems in place and it was easy simply to employ drivers through Mundens and then hire to Abus. Simon is now engineering manager for Abus as part of the wider maintenance and driver contract. Abus paid for driver CPC training.
Abus paid Mundens a set amount each month. There was then an annual reconciliation based on actual hours worked and maintenance conducted. He added a management fee to the drivers’ hourly rate. Abus Ltd owns the vehicles and took the operating profit. Mundens charged Abus a management fee. Abus paid for CPC training. It was accepted that the disciplinary process was not the same as that of an agency.
Alan Peters described the arrangement as akin to using Mundens as a driver employment agency. Rooney claimed this was not the case, saying: “With a true agency driver, the operator can terminate an individual’s employment at any time. That was not the case here.”
Rooney found that while Abus has influence over the drivers, it is Mundens who have control. According to s.81 of the 1981 Act, the operator is defined as the person who has control over the driver. The Traffic Commissioner claimed it follows that the vehicles are operated by Mundens, not Abus.
Even though it could be ruled that Abus has lent licence authority to an illegal operator, Rooney said the current arrangement was arrived at with no ill intent. He said: “This is the first time I have come across such a relationship in a PSV operation. It is clear from the operator’s own evidence that the lines at times become blurred between the two businesses. In reality, it runs as a single entity with all parties working together to deliver the service, glued together by the strong personal relationship between Mr Peters and Mr Munden. The disciplinary letters show a business (or businesses) which has a real respect for what it means to operate public services. I make no adverse findings in relation to the good repute of any party.”
A further decision by Kevin Rooney on financial standing is adjourned until 31 March 2019.