Mr McFarlane called Boyd Brothers (Haulage) Limited of The Pier, Annach Point, Corpach, Fort William to a Public Inquiry in Inverness on 24 August 2010 after an unsatisfactory maintenance investigation and after discrepancies were found in a check on compliance with drivers' hours rules and regulations. Mr McFarlane found that the company's Transport Manager, Christine MacColl, was no longer of good repute and gave the operator a period of six months to find a new Transport Manager. If they have not done so within six months the licence will be revoked.Mr McFarlane also curtailed the licence by three vehicles for two weeks.The full text of the Deputy Traffic Commissioner's decision is below. Details of his consideration of the evidence and his decision can be found from paragraph 95.UNDER THE GOODS VEHICLES (LICENSING OF OPERATORS) ACT 1995("the Act")DECISIONByRICHARD HAMILTON McFARLANEDEPUTY TRAFFIC COMMISSIONER FOR THE SCOTTISH TRAFFIC AREAIN THE CASEOFBOYD BROTHERS (HAULAGE) Ltd[OPERATOR LICENCE NUMBER OM0023412]BACKGROUND1. Boyd Brothers (Haulage) Limited ("the operator") is a Private Limited Company incorporated under the Companies Acts with its registered office, principal place of business and operating centre at The Pier, Annat Point, Corpach, Fort William ("The Pier").2. The directors of the company are Mr Malcolm Boyd (otherwise known as "Mr Calum Boyd" and hereinafter referred to by that name), Mr Alexander Boyd, and Mr Duncan Boyd. They are brothers. The company secretary is Mrs Christine MacColl ("Mrs MacColl"). She is one of their sisters.3. The operator is the holder of a Standard National Goods Vehicles Operator's Licence ("the licence") granted by the Traffic Commissioner on 3rd March 1992. The licence authorises the use of 10 vehicles and 16 trailers. 7 vehicles are meantime specified on the licence. All the vehicles are 44 tonne articulated units engaged in the transportation of wood nationally. Mrs MacColl is the nominated Transport Manager on the licence.4. The operator previously appeared before me at Public Inquiry in May 1999 in connection with maintenance issues. I warned the operator regarding its future conduct with regard to not only maintenance but also in respect of its obligation to ensure that all the undertakings given at the time of application for the licence were fulfilled at all times.5. In May 2009, Traffic Examiner Mrs Elizabeth (Ellis) Haddow ("Mrs Haddow") received a request from the Regional Intelligence Unit of the Vehicle & Operator Services Agency ("VOSA") to investigate the activities of the operator with particular reference to the security of loads of wood carried by vehicles used by the operator and to check on their compliance with the drivers' hours rules and regulations. 6. On 12th June 2009, Vehicle Examiner Mr W Russell Duncan ("Mr Duncan") attended at the premises of the operator unannounced and carried out a maintenance investigation which he deemed to be unsatisfactory.7. On 12th and 13th October 2009, Mrs Haddow accompanied by Senior Traffic Examiner Mr Jonathan Harvey ("Mr Harvey") called on the operator to check the operator's records for compliance with the drivers' hours' rules and regulations. A number of discrepancies were found together with apparent shortcomings in the systems to ensure compliance with the drivers' hours' rules and regulations.8. In due course the Traffic Commissioner received unsatisfactory reports from Mr Duncan and Mrs Haddow. The Traffic Commissioner directed that the concerns of VOSA identified in those reports be considered at Public Inquiry. 9. As Mrs Haddow's report identified apparent failures by drivers employed by the operator to comply with the drivers' hours rules and regulations, drivers Mr Calum Boyd, Mr Alexander Boyd, Mr Duncan Boyd, and Mr Allan MacEachen were all called to drivers' conduct hearings under the Road Traffic Act 1988 which hearings were held on the same occasion as the Public Inquiry. 10. At the conclusion of the Public Inquiry, I adjourned to consider my decision and to issue it in writing. I made determinations in each of the drivers' conduct hearings whereby I suspended the LGV licence held by driver Allan MacEachen for a period of 8 weeks and I warned each of drivers Calum Boyd, Alexander Boyd and Duncan Boyd regarding their future conduct as the drivers of motor vehicles. The Public Inquiry11. The call-up letter dated 12th July 2010 issued by the Office of the Traffic Commissioner put the operator on notice that, in the event, I would be considering fulfilment or not of the undertakings given at the time the licence was applied for, good repute, professional competence and appropriate financial standing. It required the operator to be represented at the Public Inquiry which took place in Inverness on 24th August 2010. All the said directors of the operator were in attendance along with Mrs MacColl who had been required to attend in her capacity as the nominated transport manager on the licence. Messrs Calum Boyd, Alexander Boyd, Duncan Boyd, Allan MacEachen were also in attendance in connection with their Large Goods Vehicle driving licence entitlements. They were all represented by Mr Whiteford, solicitor, Glasgow. The interests of VOSA were represented by Mrs Haddow and Mr Duncan.12. As a preliminary matter Mr Duncan pointed out that the date of a prohibition notice referred to at paragraph 11 of page 11 of his report was incorrect and should be amended to read 16/07/2009.13. Subject to questioning Mrs Haddow and Mr Duncan, Mr Whiteford accepted their respective reports.MaintenanceThe case for VOSA - the evidence of Vehicle Examiner Mr W Russell Duncan (his report was taken as read)14. The maintenance aspect of the case for VOSA is set out in Mr Duncan's report dated 5th November 2009 and the addenda to it dated 14th July and 23rd August 2010 respectively.15. In his report Mr Duncan confirms that the operator has one operating centre. It is very large with a tarmac area. The facilities include a weighbridge, a large modern workshop and more than adequate space for cargo handling to support shipping operations. The vehicles at the time of his unannounced maintenance investigation were approximately 7 years old. He described them to be in average condition and in a condition that was consistent for their age and the type of work they were involved in.16. He noted that the inspection frequency for vehicles and trailers was every four weeks. The inspections are carried out in-house. There was an arrangement with the Freight Transport Association ("FTA") to carry out an audit inspection every 12 weeks and an inspection of 1 vehicle and 3 trailers 4 times a year. Since his inspection the FTA frequency of the inspection of a vehicle and trailer has been increased to once every 8 weeks.17. At the time of his maintenance investigation he spoke to Mrs MacColl and Mr Duncan Boyd. He describes them as being generally reluctant to co-operate with him throughout his investigation. In particular, Mrs MacColl was initially reluctant to produce the inspection records to Mr Duncan. First of all she told Mr Duncan that the fitter who had sole access to the records was on holiday and he had the records with him. They were, however, eventually produced to Mr Duncan. He checked the vehicle inspection records, the preventative maintenance systems and the maintenance facilities. He also examined 2 vehicles and 1 trailer with the following results:-a. Vehicle SY15 DSO received a limited inspection as it could not move due to a gearbox problem. There was evidence that the vehicle had been in regular use until three days prior to this investigation. A prohibition notice was issued for 5 defects, 2 marked as immediate and 3 marked as delayed - the prohibition notice was "S" endorsed;b. Vehicle SY57 AEV was issued with a prohibition notice for 2 defects 1 marked as immediate, the other as delayed - the prohibition noticed was "S" endorsed; andc. Trailer A004572 was issued with a prohibition notice for 2 defects, 1 marked as immediate, the other as delayed.18. Mr Duncan determined the maintenance investigation to be unsatisfactory based on:-i) The Programmed Maintenance Inspection reports disclosed large gaps between some inspections;ii) There were no records to show that vehicle SY51 DSO had been inspected since December 2007;iii) Vehicle SY57 AEV had only 4 inspections recorded over a 15 month period - there were gaps of up to 21 weeks between recorded inspections;iv) No inspection had been recorded for trailer A101574 in the previous 15 weeks;v) There were gaps of 8 weeks between recorded inspections for trailers C228665 and C042587;vi) There were no records of any vehicle or trailer not being available or "off the road";vii) There was no evidence of any driver defect reporting system in use; andviii) The issue of the said "S" endorsed prohibitions.19. Mr Duncan considered that the report sheets for the inspection records were of a suitable type. He was concerned that many had not been signed by the person conducting the inspection and, in particular, that the vehicle had not been certified as fit for service. Some reports had defects noted which had not been marked as rectified. Some inspections were conducted by Volvo Truck & Bus who are not a nominated maintenance provider for the operator. Drivers reported defects verbally. No written defect reporting system was in use. The forward planner was of a satisfactory type and up to date. 20. In the last five years, 70 annual tests of vehicles and trailers had been carried out. 24 had passed at the first time resulting in a poor initial pass rate of 34% being less than the national average of 69%. Of the 46 vehicles which initially failed the test, 19 were rectified at the test station resulting in an average final pass rate of 61% which was still below the national average. The majority of these failures at test were for braking defects. 4 prohibition notices had been issued at annual test. Between 5th November 2009 and 23rd August 2010, 14 vehicles had been presented for test. 2 had been initially recorded as fails. 10 had failed. There were continuing problems with brakes. In the whole period i.e. five years prior to the date of Mr Duncan's report to 23rd August 2010, 84 tests have resulted in 26 passes with an initial pass rate of 31% (the national average is 77%). Of the 58 vehicles and/or trailers that initially failed the test, 21 were rectified at the test station giving a final pass rate of 55% (the national average is 85%).21. In the last five years and as a result of 17 encounters with VOSA vehicles and trailers had been issued with 11 prohibition notices. This is a prohibition rate of 64% well in excess of the national average of 33%. 9 prohibition notices were immediate and 2 were delayed.22. Mr Duncan concluded that there were significant shortcomings in the operator's maintenance regime. He considered the inspection frequency, records and driver defect reporting systems to be inadequate. The operator is not new to haulage. He would have expected such an experienced operator to have such essential safety systems in place and fully utilised. He was particularly concerned about the prohibition rate which is almost double the national average. The prohibitions issued at annual test were of equal concern to him. They were issued in circumstances where the operator knew the vehicle was to be inspected. The annual initial test pass rate was less than half the national average. He reasonably believed that the operator was not complying with the undertakings given at the time the licence was applied for which inter alia required the operator to ensure that vehicles and trailers were kept fit and serviceable and that proper records were kept.The cross examination of Mr Duncan23. Under cross examination Mr Duncan agreed with Mr Whiteford that the operator had been in business in one form or another for approximately 33 years. He also agreed with Mr Whiteford that the operator was involved in a joint venture with the Clyde Port Authority to ship timber from The Pier.24. In the five years prior to 12th June 2009 there had been no "maintenance problems". There had been no maintenance investigations in that period. When he met with Mrs MacColl that day she did not express any concern that the fitter was on holiday, she mentioned it more as a matter of fact. When Mr Whiteford explained the reason for Mrs MacColl's reluctance namely that she was somewhat reluctant and nervous because of her lack of knowledge of maintenance matters which the fitter could have assisted with, Mr Duncan stated that he was not aware of any reason for her reluctance. He agreed that she eventually produced what records she could find having previously told Mr Duncan that she did not have access to them.25. With reference to vehicle SY51 DSO and to the gap of about 18 months in the maintenance records, Mr Duncan recalled being told that the vehicle had been off the road for approximately 9 months. He also recalled Mrs MacColl telling him that some of the missing records had been with the fitter who had taken them on holiday which he found somewhat unusual.26. He recalled that vehicle SY57 AEV was having its inspections carried out by Volvo. He did not recall that it was part of the contract that Volvo retain the inspection records. What he did recall was Mrs MacColl producing to him an inspection record that had been faxed by Volvo.27. With regard to the missing records for the 2 vehicles and 1 trailer he examined that day he did recall being told that they had been off the road for some time. He explained to Mr Whiteford that from the documentation produced to him he had great difficulty working out which vehicles and/or trailers had been off the road during what periods. He chose to inspect vehicles and trailers that were displaying current discs that had been issued to them. He readily recognised that given the size of the operating centre and the joint venture the operator was involved in, that vehicles and/or trailers could be used internally rather than going out onto the public roads. He was aware that there was a specialised shunter unit that was used exclusively on-site. His principal difficulty was no that there was no record kept anywhere as to when vehicles and/or trailers were off the road and not in use.28. In respect of driver daily defect reporting Mr Duncan Boyd had told him that any defects were only reported verbally by drivers. Mr Duncan understood that there was now a system in place and this has been confirmed as the operator had sent him paperwork in substantiation of this. He agreed with Mr Whiteford that there was now a format in place for drivers to record defects.29. Mr Duncan agreed with Mr Whiteford that Mr Duncan Boyd volunteered to him that prior to his inspection of vehicle SY51 DSO it had been brought into the yard a few days previously with a gearbox problem and a broken sub frame. At the time of his inspection the vehicle was not over a pit being worked on, it was out in the yard. He also agreed with Mr Whiteford that as stated in the prohibition notice the yellow susie had been deliberately kinked and blocked and that internal components were missing. He did not recall Mr Duncan Boyd explaining that the susie had been deliberately tied up to allow the vehicle to be moved in the yard. He was clear that had there been no components missing then the self sealing valve at the end of the susie would have operated as it was intended to. He agreed the defect would have been obvious to any driver carrying out a first use check. He had no evidence that the vehicle had been out on the road in that condition.30. In respect of vehicle SY57AEV Mr Duncan did not agree with Mr Whiteford's suggestion that the defect associated with the suspension holding down bolts/nuts was peculiar to Volvo. He believed it was a fault that was commonly found in all types of vehicles. In respect of the fractured sub frame he agreed that this was the vehicle that had been inspected/repaired by Volvo. He agreed with Mr Whiteford that the explanation that the fracture had been previously repaired and a hairline fracture had reappeared had been given to him. However, he recalled that at the time of his inspection, the sub frame had been fractured on both sides. Only one side had been previously welded, the other had not. Those two fractures had been identified as advisory items by Volvo on their defect report sheet. He agreed that the explanation had been previously advised to VOSA in a letter, however, Mr Duncan did not regard it as a satisfactory explanation as the defects had been outstanding for at least a month. He did not accept that the defect had been repaired and a new one had occurred.31. Mr Duncan was clear that he had not been told that the trailer he inspected that day had been used internally and had been off the road since February 2009. He agreed with Mr Whiteford that he had very real concerns about the defect associated with the tipping hinge and gusset plate which if not repaired was likely to see detachment of the body from the trailer. He agreed with Mr Whiteford that he required this defect to be repaired before further use was made of the trailer. He noted that the trailer had a current MOT certificate.32. Mr Duncan agreed that the 2 "S" marked prohibitions issued in the previous five years were the 2 that he issued on the day of his investigation. He also agreed that there had been no more prohibitions issued since 16th July 2009.33. In relation to annual tests Mr Duncan agreed with Mr Whiteford that the majority of fails at test were associated with brake performance. He was aware that the operator did not have its own brake testing facility. He did not recall being told that it was the intention of the operator to use a brake testing facility, namely the same brake testing facility used by VOSA for enforcement purposes at the now immediately adjacent premises of Ferguson Transport for pre MOT brake checks. He also did not recall being told that vehicles had been prepared for test using the facility at Ferguson Transport and satisfying the test there and thereafter at the MOT test using the same equipment, the vehicle failed. He agreed that bringing in the FTA to carry out quality control of the standard of maintenance was a positive step forward. The operator required to improve its maintenance standards. The evidence of Mr Calum Boyd34. Mr Calum Boyd began the business approximately 33 years ago. Eventually, it became a limited company of which he is the managing director. The business operates from The Pier. At present, 6 vehicles and 12 trailers are used under the licence. The operator is involved with Clyde Boyd Ltd in a joint venture to transport timber by ship to and from The Pier. Timber is stockpiled at The Pier. The operator is the sole supplier of labour and transport to load and unload the ships. The vehicles are used to bring the timber out of the forests to The Pier and to the mill. The vehicles tend to operate locally within a 50 mile radius. There are occasions when vehicles work for Marine Harvest which takes them to the central belt of Scotland.35. The operator has its own maintenance facilities. It has a full time mechanic and an assistant mechanic. He is also a qualified mechanic. The operator has been involved with the FTA for about 10 years. Since Mr Duncan's visit the arrangement with the FTA has changed and they are now contracted to check 1 vehicle and 1 trailer every 8 weeks.36. He was not present when Mr Duncan came to the operator's premises on 12th June 2009. He stated that at the time of the visit there were a number of vehicles and trailers in the yard which were not being used on the road. He accepted they had not been marked as such. He explained that six sometimes seven trailers are used internally within the yard. There is a dedicated shunter to move them. An old tractor unit is also used. As he had indicated in his letter to VOSA dated 15th July 2009 there is now a dedicated vehicle used off-road in the forests to reduce the wear and tear of vehicles used on the roads37. Neither was Mr Calum Boyd nor was the operator's mechanic present when Mr Duncan called at the operating centre on 12th June 2009. He accepted that there was a need to improve the inspection records and to ensure the records were marked to show when vehicles and trailers were off the road. Records for vehicle SY57 AEV were kept by both the operator and by Volvo. He also accepted that driver defect reporting was mostly done verbally to the mechanic at that time. He assured me that there was now a written system in place. Inspection records are now kept in the office and both he and Mrs MacColl have access to them.38. Vehicle SY51 DSO had been working in the forest until about 3 days before Mr Duncan's visit. The 2 defects found by Mr Duncan as detailed in the prohibition notice had occurred when the vehicle had been brought into the yard. The yellow susie had been tied up after it had been damaged to prevent air loss when the vehicle was being moved around the yard. He was clear that if there was loss of air from the system, the gearbox would not work. He did not agree with Mr Duncan in this regard. He assured me and Mr Duncan that the vehicle had not been used in that condition out on the road. He was also aware of the sub frame fracture and understood that Mr Duncan Boyd had told Mr Duncan about it and about the problem with the gearbox. He was very disappointed that an "S" endorsed prohibition had been imposed. He agreed with Mr Whiteford that any driver carrying out a first use check would have seen these defects. As the vehicle was not in use he did not think any driver would have been carrying out any first use checks with these defects in the vehicle. He understood that Mr Duncan had inspected the vehicle when there was no indication that it was "off the road". He understood why the prohibition had been issued. He also explained that it had a serious gearbox problem and the vehicle could not be used. That was why it was in the condition it was when Mr Duncan examined it.39. With regard to the "S" marked prohibition issued to vehicle SY57 AEV for the cracked sub frame, Mr Calum Boyd was aware that Volvo who maintained this vehicle had previously identified this fault. He was not sure if the defects found by Mr Duncan were new or long-standing. He explained that there was a problem with that type of sub frame from flexing. He was clear that when the vehicle came back from Volvo he had repaired the sub frame by welding it. He was also clear that there was only one crack in the sub frame. He could not understand why Volvo had recorded cracks in both the nearside and offside of the sub frame. Coincidentally, the vehicle had been booked into Volvo that day for inspection.40. The trailer that Mr Duncan inspected was also out of use. In his said letter to VOSA he had recorded that the trailer had been off the road since February 2009. He agreed with Mr Whiteford that it would have been better to have recorded somewhere that the trailer was out of use although "we knew within ourselves what trailers are off the road and what trailers are on the road". 41. Mr Calum Boyd was concerned that his mechanic was having difficulty getting vehicles and trailers through the test. It cost the operator money. There was no brake testing equipment at The Pier. The operator had, however, been using the brake testing facility at Ferguson Transport. There had been an occasion when a trailer loaded with timber had passed at a pre-test (6th July 2010). The same vehicle in the same condition with the same load and no further attention to the brakes failed the VOSA test on 8th July 2010 using the same equipment. VOSA had been unable to explain this. He was considering obtaining his own brake testing equipment. He was prepared to give an undertaking that he and his mechanic and assistant mechanic would go on a VOSA training course. He had also adjusted the FTA contract whereby they would check vehicles and trailers after they had been prepared by the mechanic for test.Observations by Mr Duncan 42. The operator did not challenge the prohibition notice he issued to vehicle SY51 DSO at the time it was issued. It was only in Mr Calum Boyd's subsequent letter that it was disputed.43. He recognised that there were differences of opinion with regard to the cracked sub frame and the work carried out to it. He questioned the interpretation the operator had put on Volvo's assessment of this defect. His interpretation was that although it was recommended it was that a defect that should be repaired. He was in no doubt it was a significant defect. He agreed with Mr Whiteford that Volvo had certified the vehicle to be in a roadworthy condition. 44. With regard to the concerns/criticisms the operator made about the different results between the pre-test and subsequent actual test Mr Duncan revisited the analysis of the tests. His assessment of that analysis was that there was a significant difference in performance between the 2 tests. He recognised that there could be a number of factors to cause this. He suggested one such factor could be the amount of heat in the brakes - the brakes tend to perform better when heated up with use.Submission by Mr Whiteford45. Mr Whiteford reminded me that the operator had been in business for approximately 33 years, the last 24 years as a limited company. At a Public Inquiry over 10 years ago the operator had been issued with a formal warning to do with maintenance. The operator operates from The Pier in a joint venture with the Clyde Port Authority - ironically to reduce vehicle movements on the roads.46. Mr Duncan had reported that in the last 5 years, 8 prohibition notices had been issued, 2 immediate, 1 delayed together with 2 variation notices. 2 "S" marked prohibitions had been issued at the time of his maintenance investigation on 12th June 2009.47. On that date he had appeared unannounced and had examined 2 vehicles and 1 trailer. He asked me to accept that vehicle SY51 DSO had been brought into the workshop for repair three days earlier with defects to the gearbox and sub frame. The "yellow line" had been tied up deliberately. Under no circumstances would it have been used on the road. There was no evidence that it had been used on the road in that condition. In respect of vehicle SY57 AEV the sub frame had been fractured. This has been noted by Volvo on an inspection sheet as "advisory" the vehicle had, however, been certified as fit for use on the road. The evidence is that the operator had welded the sub frame but a new crack had developed. The defect was issued with a delayed prohibition as he did not consider there to be any immediate risk of detachment. The prohibition was "S" endorsed as Mr Duncan considered it to have been of long-standing.48. Mr Whiteford asked me to consider that there was at least a question mark over both of these prohibitions. These are the only "S" endorsed prohibitions issued in the last five years. No prohibitions had been issued since 16th July 2009.49. The trailer in their yard had been off the road since February 2009. The operator recognised that it should have been marked as being "off the road".50. Mr Whiteford submitted that there was no criticism by VOSA of the facilities. A mechanic and an assistant are employed for the four weekly checks with the quality control of those checks coming from the FTA. As there were gaps in the records and no recording of vehicles/trailers being off the road the operator conceded that there was a need to improve the record keeping.51. The results of the annual tests had been fairly given by Mr Duncan. Notwithstanding the continuing concerns with regard to roller brake testing the operator recognised that there was a requirement to improve the pass rate at annual test. To address this, the operator is considering the installation of its own roller brake testing system. The mechanics and possibly Mr Calum Boyd will undertake training on a VOSA course. The FTA will also check vehicles and trailers after the operator has prepared them for test.52. In conclusion, Mr Whiteford submitted that the operator acknowledged that there was room for improvement. The operator had, however, taken a number of steps which will hopefully improve the pass rate at test and performance generally.The Drivers' Hours Rules and RegulationsThe case for VOSA - the evidence of Traffic Examiner Mrs Elizabeth (Ellis) Haddow (her report was taken as read)53. This aspect of the case for VOSA is set out in Mrs Haddow's report dated 23rd March 2010.54. On 12th June 2009, Mrs Haddow, accompanied by Mr Duncan, was in the Corpach area of Scotland with the intention of checking the load security and weights of any of the operator's vehicles working in that area. No vehicles were observed. On 23rd June, 3rd August and 7th October 2009 in conjunction with the Northern Constabulary Police Force, Mrs Haddow participated in organised road checks in the expectation that she would be able to inspect the records of drivers driving vehicles being used on behalf of the operator. None of the operator's vehicles were encountered at any of these checks.55. On 12th and 13th October 2009 accompanied by Mr Harvey, Mrs Haddow met with Mrs MacColl at The Pier. As required Mrs MacColl produced 362 tachograph charts ("charts") in respect of five vehicles and timesheets for April 2009 to September 2009. She also obtained details of the six drivers associated with these records.56. On analysing these records Mrs Haddow detected discrepancies on the charts, with the possibility that some might have been false records. She noted a general non-compliance with regard to the use of the mode switch, recording breaks and the recording of other work duties. When she compared the drivers timesheets to the relevant charts very few matched up. 57. Mrs Haddow discovered that vehicle SY57 AEV which had been specified on the licence since 13th December 2007 was fitted with digital tachograph recording equipment, which the operator had not downloaded.58. In light of her findings and her concerns Mrs Haddow, that day, interviewed Mrs MacColl under caution as follows:-Q. Do you understand the caution?A. YesQ. What is your position with Boyd Brothers Ltd?A. Company SecretaryQ. How long have you held this position?A. 23 yearsQ. When did you gain your CPC Qualification?A. Must have been before that I supposeQ. Did you have to sit on the CPC examination?A. I sat itQ. Are you the sole nominated CPC holder for Boyd Brothers?A. YesQ. Are you are solely responsible for the tachograph administration and ensuring compliance with the legislation?A. I'm not answering thatQ. Who within Boyd Brothers Ltd has the responsibility for ensuring compliance with relevant legislation?A. I suppose it is the Transport ManagerQ. Are you the Transport Manager?A. I'm the CPC holder Q. Who is the Transport Manager?A. It is jointly between the 3 of themQ. Who are the 3 of them?A. Malcolm, Duncan and Alexander BoydQ. What is your position with in the company with the CPC. Do you have an active part in ensuring compliance?A. Yes I doQ. Can you explain how you are actively involved, what do you do?A. Collect records, answer telephone calls, speak to drivers, deal with information with regard to workload in conjunction with my brothers as wellQ. Who has responsibility for analysing records for infringements?A. Probably comes down to myself againQ. How often are you analysing records?A. I get records in at end of every weekQ. What training or instructions do you give drivers to ensure complying with legislation?A. I give out information as we get it inQ. What is your understanding of European Regulations?A. 4 hours driving, then a break, maximum of 9 hours allowed driving time. Two days a week they're allowed 11 hoursQ. What do you look for?A. Hours of work, hours of drivingQ. Do you ever find any infringements on the charts?A. PassQ. Do you have a system in place?A. It would be noted downQ. Do you have any system in place?A. We were sending cards off, but we weren't getting info backQ. What system was in use?A. Were going up to someone outside Inverness, Liz WilmotQ. What has been done locally to monitor?A. Probably haven't done anything, have a contract in place with FTA for digitalQ. How long is it since you gave up previous system?A. Towards the end of last yearQ. Have drivers been given training with regard to use of mode switch?A. Nothing specific apart from road sideQ. What is your understanding of mode switch use?A. When driving at driving, if loading or unloading at other work and when having a break at breakQ. Are all drivers required to complete timesheets every week?A. YesQ. What about the directors if they were driving, would they complete a timesheet?A. One of them has started, they haven't been as they are on a salaryQ. Why have they not been filling out a timesheet?A. Probably because they don't need if for wages, it may be on private road when loading a boat, something like thatQ. How can you be sure they are complying with legislation if not completing timesheets to correspond with charts?A. We didn't think we need to complete working time directive for the directorsQ. Timesheets so far, don't appear to reconcile with tachograph charts, can you explain why that is?A. We were taking start and end from tacho charts, they've not been driving or waiting for loadsQ. Are you suggesting not recording full duty on tachograph charts?A. I'll not answer that oneQ. Who completes the timesheets?A. DriversQ. Who checks timesheets and is responsible for making wage payments?A. Office, probably myselfQ. Do you reconcile tachograph charts against time sheets?A. I have a look yesQ. Have you found discrepancies?A. I'll not answer thatQ. Do you pay drivers based on timesheets only, or do you use charts?A. I sometimes check for other work, periods of waitingQ. What policy does the company have regarding secondary employment of driver?A. They wouldn't be working for anyone elseQ. Would that be a question you would specifically asked drivers?A. As far as I'm aware, there would be no one with any other jobsQ. What systems are in place for analysis of the digital vehicle?A. We have a FTA contractQ. Why is there no data available today for us to look at?A. Because it hasn't been downloadedQ. Has there been no download since vehicle specified on licence at end of 2007?A. There is a little bit of 2008Q. Who is the driver responsible for that vehicle?A. Alexander BoydQ. Since specified in December 2007?A. YesQ. Have any other drivers driven that vehicle?A. On occasionsQ. Do they have a digital card?A. They should have yesQ. Who's responsible for allocating work and vehicles to drivers?A. The directorsQ. Do you have records of driver card downloads?A. There are someQ. What form is data held?A. On computerQ. Why have you not been taking regular downloads?A. Pass, I don't knowQ. When last would you have brought yourself up to speed with EU legislation and WTD legislation?A. When things come in from Commercial Motor, FTA and Moving OnQ. Has there been any changes recently that you felt you needed to relook at as CPC holder to bring you up to date?A. Digital tachograph and Working Time DirectiveQ. At moment what system is in place to monitor Working Time Directive?A. Only from timesheetsQ. What about drivers who don't complete a timesheet, how would working Time directive be monitored for them?A. I'll pass on that oneQ. What reference period is the company working to?A. I'll say 26 weeksQ. Is the company monitoring Working Time directive?A. YesQ. What is Ross Boyd's average over the 26 week period?A. I'd have to go to his driving time, the answer to that would have to be no at the moment.Q. When drivers are driving on Saturday do they always use a chart?A. They shouldQ. There appears to be a considerable number of charts missing for week end work, why would that be?A. PassQ. What records do they do when other work at weekend?A .As far as I'm concerned they're not doing other work, would have their timesheet in cab.Q. Do you have any part time or casual drivers working for company?A. No Q. What instructions have drivers been given with regard to recording other work?A. Recorded on timesheetQ. What records do the drivers carry with them to show any other work other than driving?A. Only timesheetQ. Are your drivers carrying previous timesheets at all times?A. No, tacho charts for 28 daysQ. If a driver had been working on a Saturday, what manual record would driver carry to show what other work he had been doing?A. Only timesheet which would be handed in by about TuesdayQ. Is anything else you want to ask?A. No59. On 13th October 2009, Mrs Haddow interviewed driver Allan MacEachen under caution. The operator has employed him for 14 years. He is principally employed as a driver but helps out with other duties when required which other duties he records on his timesheet. He explained his understanding of the use of the mode switch to her. He also explained his understanding of the drivers' hours' regulations. He confirmed that the charts shown to him by Mrs Haddow for the period 1st to 29th May 2009 were his and that he alone had completed the centerfields. With reference to those charts Mrs Haddow asked him a number of questions which he answered as follows:-Q. On your time sheet dated week commencing 18/05/09 you were paid 2 nights subs, why?A. I don't know, I don't understandQ. Would someone from company complete time sheet on your behalf?A. I don't know, sometimes I have to phone in, I would say Lochaline, and she thinks I'm staying there Q. Based on charts, tallying up with timesheet, would you have claimed overnight?A. All I can say, I would phone, whoever is in office hereQ. Have you ever worked weekends, knowing it would have an effect on weekly rest?A. NoQ. This is a chart dated 15/05/09, can you explain the chart?A. It's Duncan BoydQ. It would appear to be your writing?A. That's not my writing, I don't do that with my sevensQ. Can you explain why it would appear to be your writing on chart dated 23/05/09, have you ever been asked to complete the centerfield on behalf of someone else?A. No, what benefit would it be to me?Q. Can I ask why it would appear to be your writing on the charts?A. I can't, it's nowhere, it's not my writingQ. We're asking the question, 15/05/09 is running after your chart dated 15/05/09A. I've certainly never falsified a chart for anyoneQ. Have you ever been asked to come in and drive and put someone's name on the chart?A. NoQ. Why were you paid 2 nights subs when you are clearly not away from the depot?A. I can only think I've shouted in my hours from Lochaline and they've thought I've been staying in Lochaline, that's the reasonQ. What's your full understanding of weekly rest?A. You have to take 48 hours, I'm not desperate for hoursQ. Why would you have worked 3 consecutive Saturdays?A. I don't knowQ. Who instructs you to do that?A. One of the Boys(sic) brothers or sistersQ. Who gives out driving duties?A. All hands on as company directorsQ. Are you aware of charts being analysed?A. I was taken into office after Lassie from InvergordonQ. On your chart dated 22/05/09, can you see any infringements?A. Short of breaksQ. Why would you not have taken required breaks on that day?A. I don't knowQ. Has anyone from company spoken to you about chart dated 22/05/09?A. NoQ. On your chart dated, 26/05/09, can you tell me about that chart?A. I don't knowQ. Has anyone from company spoken to you about a chart dated 26/5/09?A. No, not as yetQ. On a chart dated 3/6/09, you exceeded 4 1/2 hours driving without taking the required break, why?A. I was out on Skye, they were tarring, I was told to move out of the wayQ. On a chart dated 11/06/09 why did you not take any breaks?A. I don't knowQ. Has anyone from the company spoken to you about infringements on charts?A. NoQ. On chart dated 22/06/09 why did you not take a break?A. I don't know 60. Mrs Haddow was concerned that driver Allan MacEachen's timesheets for the weeks commencing 18th and 25th May 2009 showed claims for overnight subsistence on two occasions when the charts disclose journeys beginning and ending at Corpach. She believed that driver Allan MacEachen had not been involved in overnight work.61. An analysis of the charts for drivers John MacGillivray and Ross Boyd disclosed that they did not match up with the relevant timesheets indicating that they failed to enter the required periods of time on the charts.62. The charts dated 15/05/09 and 23/05/09 for director and driver Duncan Boyd recorded a journey from Corpach to Corpach. The handwriting on these charts, when compared to the 36 other charts in his name differed. Mrs Haddow considered that these charts were possibly false records.63. The chart dated 12th/13th May 2009 in name of director and driver Calum Boyd recorded a journey from Carlisle to Corpach. Driver Allan MacEachen had completed the immediately preceding chart for the same vehicle with an end destination at Carlisle. There was no record of the said vehicle being driven from Corpach to Carlisle. 799 kms were unaccounted indicating that there had been a failure to enter the required periods of time on the chart.64. The charts dated 15th June 2009 in the name of director and driver Alexander Boyd did not record details of work carried out prior to the recorded commencement of the journey at 12:25 hours indicating that he had failed to enter the required periods of time on the chart.65. In respect of vehicles Y173 JAW and SF55 AXH Mrs Haddow was unable to account for 3299 kms.66. Mrs Haddow returned to The Pier on 2nd March 2010. She was provided with charts for vehicle Y173 JAW which accounted for 2427 kms of the 2500 kms which had been previously unaccounted for. The 799 kms for vehicle SF55 AXH have not been accounted for.67. On this return visit Mrs Haddow was also provided with charts and timesheets for the period 4th to 29th January 2009 which she compared. In respect of the 21 charts in name of driver Allan MacEachen she noted there were 7 instances of the charts and timesheets still not matching up. She did, however, note that he was recording other work on blank charts and had recorded occasions when he had made incorrect use of the mode switch. In respect of driver Ross Boyd none of the 15 charts matched up with his time sheets. No record had been kept of other work carried out on "non working" days. Of the 19 charts in name of driver John MacGillivray there were 7 charts which did not match up with the timesheets and there was no record of other work carried out on "non driving" days. Mrs Haddow also observed that no timesheets were being completed in respect of the directors although manual charts had been completed to record the hours of other work for Mr Calum Boyd and Mr Duncan Boyd. There was still no digital data available in respect of vehicle SY57 AEV. 68. Mrs Haddow was informed by Mrs MacColl that since her previous visit in October 2009 everyone had attended a training session run by the FTA. There was now a better understanding of the use to be made of the mode switch.69. Also at this return visit Mrs Haddow took the opportunity of interviewing Mr Calum Boyd and Mr Duncan Boyd under caution. The relevant questions and the answers given are as follows:-Inter alia she asked Mr Calum Boyd:-Q. Who has responsibility for ensuring drivers are adhering to the legislation?A. Christine holds the CPC............................................Q. I'm going to show you a chart dated 12/5 - 13/5/09, are those your details?A. Yes they're my details, the start journey was Carlisle, I went down to the sale at Euro AuctionQ. Who would have driven SF55 AXH to Carlisle?A. I'm guessing RossQ. Can you explain why there is a missing chart from 11/5/09 - 12/05/09?A. Shouldn't be, Ross should have chartQ. Who drove the vehicle?A. I'm pretty sure it would have been RossQ. On 12/05/09 when would you have been on duty from?A. I was a passenger in a car, being driven by one of my sons, I'd had a couple of days, we'll need to find chart that Ross usedQ. Has anything changed with regards to keeping records?A. I've had a briefing from Christine, I'm now keeping details of other work for example in garage or whateverQ. Is Christian responsible for checking charts?A. I've taken on board, what she has said she does get on to usInter alia she asked Mr Duncan BoydQ. Who has responsibility for ensuring drivers are adhering to drivers hours legislation?A. Christine...............................................Q. I'm showing you charts dated 15/05/09 & 23/5/09, can you tell me whose writing is on the charts?A. It's not my writingQ. Why would someone elses writing be on charts dated 15/05/09 & 23/05/09, which are both in your name?A. I don't know, I'm not sureQ. If I show you charts dated 14/05/09 & 15/5/09 would you say that it is the same writing as driver MacEachen?A. Yes it probably isQ. Why would that be?A. At this moment in time I'm not sure, it's very difficult to tellQ. Both charts are Saturday dates, can you explain why Allan MacEachen's writing is on the charts? A. I don't know, it doesn't look good does it?Q. Would he have been asked to work on a Saturday and put your name on the chart?A. I wouldn't have thought soQ. Would you agree it is Allan MacEachen's writing on chart?A. It's not my writing, it wasn't me that wrote thatQ. Why would he do that?A. He may have been over his time, but wouldn't have been, unless I asked him to unless I had no pen or something, it's the only thing I can think of, or unless I asked him to write me out a chart if my hands were dirty Q. I'm showing you Allan MacEachen's timesheet dated the 18/5/09 and charts relating to that timesheet, and timesheet dated 25/5/09 and the charts, subs were paid when no charts show any location other than Corpach, why?A. I don't knowQ. Would he have been asked to drive on Saturdays, put your name on charts and be paid 2 nights subs as an incentive?A. No, not to my knowledge, I just don't understand itQ. Has Christine spoken to you about the state of your charts?A. It's difficult if not on a steady ground, it's not done intentionally, or I could be writing in the dark and put the wrong figures downQ. Did you drive SF55 AXH to Carlisle on 11/5/09 - 12/5/09?A. I cannot remember.......................................................Q. Is there anything else you want to say?A. In general our core work is machinery, we do not concentrate on the haulage side, we are not out to break the law, we are currently looking at how to get wood from forest to public road to minimise any roadworthy problems with vehicles. Having had my charts highlighted as messy I am now aware of the importance of keeping charts up to date and following on from the chart previously used."70. From her analysis of the charts and timesheets Mrs Haddow determined that there were six instances of driver Allan MacEachen failing to take the required legal breaks after four and a half hour's driving, sixty four instances of incorrect use of the mode switch, two instances of failing to enter the required periods of time on charts and two possible false records. Additionally on 17th January 2008 a prohibition notice had been issued to the operator in respect of driver Allan MacEachen using one of their vehicles with a defective tachograph.71. Mrs Haddow considered that her investigation had established that there was no adequate system in place for ensuring compliance with the drivers' hours' rules and regulations and the Working Time Directive. She believed that had there been a system in place for monitoring and checking the records then the missing kilometres and missing charts would have been detected. She never received any information from the digital tachograph unit in vehicle SY57 AEV. She is clear that drivers still do not fully understand the importance of recording all other work carried out by them as the deficiencies identified by her at her first visit were still present on her second visit to The Pier. Information on some charts still did not match information on timesheets. At her first visit Mrs MacColl conceded that her knowledge of the Working Time Directive was poor. Mrs Haddow was heartened that a training session had been carried out by the FTA and as a result drivers were making better use of the mode switch. She understood that in conjunction with the FTA new IT equipment had been ordered to assist in analysing analogue charts and to ensure that digital information is downloaded correctly.72. It was Mrs Haddow's belief that the problems she had detected had not come about with malicious intent. She concluded that the operator had failed in its undertakings to ensure that the rules on drivers' hours and tachographs were observed with proper records being kept.Cross examination of Mrs Haddow by Mr Whiteford73. In answer to Mr Whiteford Mrs Haddow confirmed that prior to this investigation she had had no prior dealings with the operator. She was not aware of any previous adverse reports. She confirmed her findings in respect of the 383 charts she had analysed.74. She explained that between 12th June 2009, on which date she attended with Mr Duncan at The Pier although she did not carry out any investigation into the operator in her capacity as a traffic examiner, and her return visit on 12th October 2009 she had hoped to have a roadside encounter with vehicles used by the operator as she considered a roadside encounter was a fairer situation to properly assess a driver's understanding of the drivers' hours rules and regulations and to see what they are actually recording. As there had not been any such encounter she decided to call on the operator.75. Mrs Haddow also explained to Mr Whiteford that whilst there had been no formal written request for charts and other records ahead of her visit on 12th October 2009 she had been in contact with the operator who was aware of her impending visit. She described Mrs MacColl as being cooperative at the time of the visit. Mrs MacColl had produced such charts and records as were available. She openly admitted that she had not downloaded data from the one vehicle fitted with a digital tachograph. She could not recall advising Mrs MacColl that she would return at a later date to analyse any digital downloads.76. She agreed with Mr Whiteford that Mrs MacColl had told her that she received charts from drivers and filed them without any in-depth analysis. Mrs Haddow also agreed with Mr Whiteford that she had analysed the charts in conjunction with the timesheets. She understood that the timesheets had been completed by drivers for all work/duties undertaken by them. They were paid for the hours disclosed on the timesheets. She also agreed with him that inconsistencies between the charts and the timesheets arose from drivers not entering all duty times on their charts. She had told Mrs Haddow that she required updating and training with regard to the drivers' hours' requirements and that she would be in contact with the FTA for assistance in updating equipment to analyse charts and to arrange training.77. In respect of the six instances of driver Allan MacEachen not taking the required breaks after 4 1/2 hours driving Mrs Haddow agreed that this could have arisen from his incorrect use of the mode switch. She agreed that with regard to the chart dated 12th/13th May 2009 which recorded a journey undertaken by driver Calum Boyd from Carlisle to Corpach he could have been given a lift to Carlisle and had driven the vehicle back. It could also be the case that his son Ross Boyd had undertaken the journey in the same vehicle from Corpach to Carlisle and the chart was missing which could account for the missing 799 kms. 78. The one chart in the name of driver Alexander Boyd dated 15th June 2009 had not recorded work he had been involved in prior to 10:25 hours. When questioned by Mr Whiteford as to whether she had any evidence that he had carried out any other work prior to driving she accepted that she may have made an assumption he had been involved in other work in connection with the "family business". 79. She agreed with Mr Whiteford that on her return visit the further 21 charts produced to her accounted for the bulk of the missing mileage.80. Also on her return visit Mrs Haddow confirmed to Mr Whiteford that she had checked the charts for January 2010. She noted that whilst there were some improvements there were still instances of timesheets not marrying up with charts. Drivers were still not recording on their charts all the hours recorded on their timesheets. She had not detected any drivers' hours' offences. She recalled that Mrs MacColl had told her that all drivers and directors had attended a training course in November and recognised the certificates of attendance and participation exhibited to her by Mr Whiteford. She did not agree with him that on her return visit there was new equipment installed to scan and analyse charts although she recalled some discussion with Mrs MacColl regarding the ordering of such equipment. She did not dispute the content of the FTA "On-site Compliance Digital Installation Confirmation Form" dated 3rd November 2009 exhibited to her by Mr Whiteford.81. In connection with the charts dated 15th and 23rd May 2009 she confirmed that she had spoken to driver Allan MacEachen and driver Duncan Boyd about them. Mr Whiteford queried Mrs Haddow as to whether the chart dated 15th May should have been dated 16th May which latter day was a Saturday as was 23rd May 2009. She was unable to assist Mr Whiteford. She was, however, interested to know who had completed the centerfields of these two charts.82. Mrs Haddow agreed with Mr Whiteford that at her October 2009 visit the operator accepted there was need for improvement in the implementation of the various systems and record keeping. On her return visit in March 2010 she could see better use being made of the mode switch and that there was now a system in place for implementation of the Working Time Directive. Again, there was no digital data for her to analyse. She had not previously seen the digital download for driver Alexander Boyd exhibited to her by Mr Whiteford in respect of driving/work undertaken by him on 28th June and 2nd July 2010. What she had expected to see was downloads for every driver who had a digital tachograph card and a download from the vehicle unit. Mr Whiteford also showed an example of the records now made/kept by the operator which appeared to be acceptable to her. She emphasised the importance of information recorded on timesheets corresponding with information recorded on the charts.The case for the operatorThe evidence of the transport manager and company secretary Mrs Christine MacColl83. Mrs MacColl confirmed that she has been the CPC holder on the licence since it was granted. She is the company secretary, not a director, and works full-time for the operator.84. On 12th October 2009, when Mrs Haddow and Mr Harvey attended at The Pier, it was the first occasion that she had been asked to produce tachograph records and other documentation to VOSA. She produced 362 charts for five vehicles and six drivers. She told Mrs Haddow that one vehicle was fitted with a digital tachograph which she had not downloaded. She explained that she did not know how to download it. She also told Mrs Haddow that she had filed charts without carrying out any in-depth analysis of them. She recognised that she would have to improve systems and her own knowledge of them. Immediately after that visit the operator had put in place training in conjunction with the FTA who also advised with regard to the acquisition of new equipment. Seven hours CPC training for drivers had taken place on 9th November 2009 as confirmed by the copy certificates exhibited to her by Mr Whiteford. She received training on the new scanning equipment when it was installed in March 2010. Her practice now is to scan charts received from drivers which she then "puts" to the FTA. She also now downloads digital data as evidenced by the records produced for her brother Mr Alexander Boyd. At the training course she learned that the information on the timesheets must tie-up with information on the charts. This is now being done although she conceded it was not being done when Mrs Haddow returned in March 2010. She is also complying with the requirements of the Working Time Directive. It had been a steep learning curve for her since her first meeting with Mrs Haddow.85. She had considered Mrs Haddow's report with particular reference to charts. She confirmed that she had been able to provide Mrs Haddow with a further 21 charts on her return visit in March 2010. She had been unable to find the chart for driver Ross Boyd in respect of a journey from Corpach to Carlisle. Mrs Haddow had not detected any further drivers' hour's offences although drivers in January 2010 were still not fully completing their charts in relation to their timesheets.86. In relation to the charts dated 15th and 23rd May 2009 Mrs MacColl stated that the chart dated 15th May should have been dated 16th May 2009 (a Saturday). She explained that these two charts were returned to the office with no names entered on the centerfields. She had "stupidly" written the name of her brother Duncan Boyd on the centerfields. She regretted doing it. She explained that the operator was under pressure. A ship was to be loaded at Corpach. On the Friday evening (15th May 2009) the loading was "switched" to Lochaline. The operator was short of drivers so she asked driver Allan MacEachen to help out on the Saturday. She explained that if the ship was not loaded timeously there would be financial penalties. When asked by Mr Whiteford if she had tried to source other drivers she stated that because the work was very specialised with the use of timber cranes it was very difficult to obtain other drivers in their area. She confirmed that driver Allan MacEachen had carried out the work on the Saturday and handed in an un-named chart at the end of the day's work. She stressed that driver Allan MacEachen was only assisting the operator. She had written Duncan Boyd's name on the chart to "protect" driver Allan MacEachen. This had also happened the following Saturday (23rd May 2009). These charts had been filed. Her brothers did not know about this at the time. They were not very happy when they found out about it. She acknowledges that this was a very stupid thing to have done and that she has let the company and her brothers down. She has learned lessons. She will never do anything like this again. She recognises the necessity of ensuring that drivers abide by the drivers' hours rules and regulations. She knew that driver Allan MacEachen should have been taking his weekly rest and should not have been driving for the operator on those two Saturdays.Submission by Mr Whiteford87. Mr Whiteford reminded me that Mrs Haddow had visited The Pier on 12th June, 12th and 13th October 2009 and on 2nd March 2010. On 12th June 2009, she had accompanied Mr Duncan however she did not begin her own investigation that day.88. From all 383 charts analysed by Mrs Haddow there were 2 false records, 6 instances of drivers failing to take a sufficient break after 4 1/2 hours driving, 64 instances of incorrect use of the mode switch and 2 instances of failing to record total time. Mr Whiteford submitted that there were not a lot of drivers' hour's offences.89. He emphasised that for all the years the operator had been trading this was the first occasion that Mrs MacColl had been involved in such an investigation. At Mrs Haddow's first visit she had handed over 362 charts and timesheets. She had admitted that she had not downloaded any data from the one vehicle fitted with a digital tachograph. She had also admitted that charts had been filed with no in-depth checking. She recognised that she required to improve her knowledge in respect of analysing charts and her knowledge of the Working Time Directive.90. It was on her second visit in October 2009 that Mrs Haddow spoke to driver Allan MacEachen and spoke to him about his charts. It was on that occasion she had pointed out to Mrs MacColl the requirement for charts to match timesheets.91. When Mrs Haddow returned to the premises on 2nd March 2010 she was given 21 more charts for vehicle Y173 JAW which accounted for almost 2,500 of the missing kilometres. It was conceded by the operator that 799 kms were still unaccounted for. One chart was still missing. Mrs Haddow had noted an improvement in the record keeping and the steps taken by the operator to achieve this. The operator also accepted that at that time charts were still not tying in with time sheets. Mr Whiteford emphasised that in March 2010 no further drivers' hour's offences had been detected. He submitted that it was to the credit of the operator that when the deficiencies were pointed out to them in October 2009 they took immediate steps to rectify the situation. They had not waited for a return visit from Mrs Haddow or for a call to public inquiry. The FTA had become more involved. Training had taken place on 9th November 2009. Mrs MacColl had ordered scanning equipment to assist in analysing charts. She had also contracted to be trained on the use of such equipment. She had taken steps to rectify the deficiencies in her knowledge towards the end of 2009. In respect of the digital tachograph Mr Whiteford suggested that she had been in denial and had not faced up to the need to be conversant with this new technology. He also suggested that as this was the first such visit from VOSA that complacency had crept into the directors and the transport manager with regard to their obligations to the drivers' hours rules and regulations and that other aspects of running a business and been given priority over these obligations.92. In respect of the charts dated 15th and 23rd May 2009 Mr Whiteford accepted that the earlier of these two charts should have been dated 16th May 2009 as it related to work undertaken by driver Allan MacEachen on consecutive Saturdays. He accepted that driver Allan MacEachen should have been taking his weekly rest. As the operator had been unable to obtain another driver Allan MacEachen had been asked to help out. He agreed to help out and returned two blank charts to the operator with out completing the centerfields. Thereafter Mrs MacColl had "stupidly" completed the centerfields. She had entered the name of her brother Duncan Boyd who would often go weeks without driving to "protect" driver Allan MacEachen. On behalf of the operator Mr Whiteford accepted that this had been a gross error of judgement. Mrs MacColl accepted that this would affect her repute as a transport manager - it would "tarnish" her repute. She felt that she had let the operator and her family down. She had, however, been frank and honest with me at the Public Inquiry. She was now aware of the consequences of this stupid act and how it had affected driver Allan MacEachen and her brother Mr Duncan Boyd. He invited me to accept that although the good repute of Mrs MacColl has been "damaged" there is no other evidence of false records. It was a one-off incident over two Saturdays. The incidents occurred well over a year ago. She regretted her actions. Having been through the process of the Public Inquiry and having realised the consequences of her actions Mr Whiteford assured me that there would be no repetition of this type of conduct.Concluding submission by Mr Whiteford93. Mr Whiteford reminded me that within the authorisation of the licence the operator was using 6 vehicles and 12 trailers which were required to keep the business running. He submitted that this was not a case where revocation of the licence was required. The stage had not been reached whereby the operator should be put out of business. Apart from the two false records discovered by Mrs Haddow she had not come across any culture of falsification of the operator's records. Any suspension of the licence would be serious for the company as it would not be able to carry out the essential work of bringing timber out of the forests for loading onto ships.94. Mr Whiteford submitted that an appropriate and proportionate sanction would be for me to curtail the licence to 6 vehicles and 12 trailers with no increase in authorisation until further checks had been undertaken by VOSA and for VOSA to be satisfied that proper systems were in place, that they were being used and to ensure that there was no repetition of the conduct that Mrs MacColl had indulged in.Considerations and Reasons for my DecisionDelay95. I am very disappointed that it has taken me so long to issue this decision. It is comfortably out with the requirements of the Senior Traffic Commissioner who has made it clear that he expects decisions to be issued within 28 days of the conclusion of a public inquiry.96. By way of explanation, not excuse, the Public Inquiry took place in a week where I was involved in a number of other public inquiries which concluded in that same week. It also took place at a time when I was involved in writing a decision in an earlier case involving an operator and a significant number of drivers. The drafting and finalisation of my decisions in those cases took a very considerable period of time. I also was on leave for a period of approximately 5 weeks. I very much regret the delay and apologise for it.General considerations97. First and foremost I recognise that I am dealing with a family business. The business has been in existence for many years. The Public Inquiry Brief made reference to the operator previously appearing at a Public Inquiry. It was during the course of the Public Inquiry that it occurred to me that the operator had previously appeared before me and not the Traffic Commissioner himself. Mr Calum Boyd confirmed that that was indeed the case and that I had discussed maintenance issues with him in 1999.98. I was therefore concerned that this operator had been called to Public Inquiry for the various concerns identified by VOSA which included maintenance.99. A call to Public Inquiry for any operator in itself should be a "wake-up" call. My expectation is that the experience of being at a public inquiry should be sufficient for the operator to ensure that steps are taken and maintained to ensure that the operator does not attract an adverse interest from VOSA and/or the Traffic Commissioner at any time in the future and that for the duration of the licence.100. Regrettably, that has not happened so far as this operator is concerned. It is quite clear that standards across the board have slipped since the last Public Inquiry. This is evidenced by the very poor record keeping as identified by Mr Duncan and Mrs Haddow. It seems to me that the FTA was brought in at about the time of the last Public Inquiry in an attempt to demonstrate a responsible response to an unsatisfactory VOSA investigation and/or a call to public inquiry. It appears that that response had not been maintained and that any meaningful benefit from any FTA involvement has disappeared with the passage of time.101. It occurs to me that the principal reason for this is that we are dealing with a family business. Three brothers are directors. One of their sisters is the company secretary and transport manager. A limited number of staff are employed over and above. Much of the work undertaken by the haulage side of the business is within the yard at The Pier or within a 50 mile radius of it. Pretty much everything is done by word of mouth and the expectation is that everyone associated with the business knows what is going on, who is doing what and when vehicles and/or trailers are in use and when they are not.102. Whilst this operator and others may view the requirement to keep records as being somewhat unnecessary or tedious it goes directly against the undertakings that were given at the time the licence was applied for. Such record keeping has a number of benefits not least of all to demonstrate that there are proper systems in place and they are being used/implemented at all times. If the undertaking is properly fulfilled there is inbuilt self protection/preservation for the operator. If there are proper records kept faithfully recording, for example the inspections and/or repairs to vehicles and trailers then this is a good starting point to demonstrate that the undertaking given at the time of application for the licence that vehicles and trailers will be kept in a fit and serviceable condition has been fulfilled. In the event of a vehicle being involved in an adverse road traffic incident in which injury has been caused to other road users and it can be demonstrated that the cause of the incident is down to a defect in or failure of a mechanical item a good starting point to begin to answer a prosecution and/or civil claim is to be able to produce true records of maintenance inspections being carried out in accordance with the undertaking.103. All licensed operators, irrespective of where they are located, should work on the basis that a VOSA investigation can happen (unannounced) at any time and they must be in a position to demonstrate that all the undertakings given at the time the licence were applied for are effectively in place and working to ensure that the undertakings are being fulfilled at all times.104. In approaching my determinations in this case I do not lose sight of the close family unit that presented itself to me. However, the public interest requires that I put it entirely to one side and treat the operator no differently from any other operator that is called to public inquiry. In taking this approach I do not wish to cause any difficulties within the family but each of them as directors, secretary and transport manager has clearly defined areas of responsibility. Individually and collectively they have the duty to ensure that those areas of responsibility are addressed and paid due obedience to at all times with particular reference to the licence.105. I also require to address the issue of the four drivers being called to driver conduct hearings on the same occasion of the operator being called to public inquiry. There was no notice in the call up letter for the operator that the Public Inquiry was to be held at the same time as the driver conduct hearings and similarly no notice was given to any of the drivers that their respective hearings would be heard on the same occasion as the Public Inquiry. The licence and the LGV licences are regulated by two separate and distinct pieces of legislation. I continue to have reservations about the competency of "conjoining" or attempting to "conjoin" driver conduct hearings with a Public Inquiry. Accordingly, I approach my decision in respect of each licence on the basis upon which the licence holder was called to the public inquiry or a driver's conduct hearing. As hereinbefore mentioned I made my decision in respect of each of the drivers at the conclusion of their hearings. In respect of the operator and transport manager I make my determinations based on the notice that they were each given in their respective call up letters and the evidence adduced at the Public Inquiry.Maintenance106. I have no difficulty with Mr Duncan attending the operator's premises unannounced on 12th June 2009. Any vehicle and/or trailer that is being used under the authority of the licence must be in a fit and serviceable condition at all times. It makes no difference whether the condition is checked at the roadside, annual test or maintenance investigation.107. As Mr Whiteford emphasised in his cross-examination of Mr Duncan and in his submission, in the last five years 8 prohibitions have been issued to vehicles and/or trailers used under the licence. 3 of those prohibitions were issued on the occasion of his said visit. Two of them were "S" endorsed. They are the only "S" endorsed prohibitions issued in the last five years. The operator can have no objection to the findings of Mr Duncan or the approach he took in issuing these prohibitions. The operator's position is that there is an explanation for the state of the vehicles and trailer as discovered by Mr Duncan. Neither vehicle SY51 DSO nor trailer A004572 were in use at that time. There was no prospect of them being used on the road at that time. Neither of them were displaying any notices that they were not to be used on the road and there was nothing recorded in the documentation associated with either of them to that effect. In issuing these two prohibition notices Mr Duncan was doing his duty to ensure that neither of them was taken out on to the roads in the condition in which he found them. This explanation is entirely consistent with the nature of the defects and the fact that the vehicle and trailer were at the operating centre. It is no doubt because of the close working relationship at the operating centre that no notices were displayed on either of them. There was an assumption that everyone knew that they were not to be used on the roads. However, Mr Calum Boyd was at pains to emphasise that vehicle SY51 DSO could not be used because of the serious gearbox problems. From my own knowledge it was more than likely that the yellow susie could not be hooked up to a trailer in the condition it was found to be in. The operator should not have made this assumption. Accordingly the operator has unnecessarily exposed itself to the issue of this "S" endorsed prohibition notice.108. The prohibition notice issued in respect of the sub frame on vehicle SY57 AEV is more controversial. The Volvo inspection sheet, the declaration of which is dated 20th and 21st May 2009, clearly states that at the time of inspection cracks in the near side and offside sub frame were found. Under the heading "Repair Description" the words "Customer Advised - Previously" appear. There was an observation by Mr Whiteford that one person may have written the words "Customer Advised" and another had written the word "Previously". This could be explained as it was the technician who inspected the vehicle and signed the declaration on 20th May 2009. It was the supervisor who had checked the information on the inspection sheet and certified that the vehicle to be in a roadworthy condition on 21st May 2009. Mr Whiteford was unsure how this had come about. He was certain it could not have been the operator who would have annotated this part of the inspection record. Against the background that Mr Calum Boyd was critical of the design of the sub frame he was therefore aware of its weaknesses. I am in some difficulty in accepting his evidence that he repaired the sub frame by welding one of the cracks when there were two cracks known to Volvo prior to 20th May 2009 and that a crack or cracks had reappeared ahead of Mr Duncan's inspection. The reality of the situation is that Volvo had previously recommended that the cracks in both sides of the sub frame be repaired. This is supportive of Mr Duncan's assessment that these defects were of long standing. I accept and prefer Mr Duncan' evidence in this regard.109. I am very concerned to note that as at 12th June 2009 there was no recording by drivers of first use checks of vehicles and trailers. I am in no doubt that I would have emphasised the importance of such records being kept in my concluding remarks at the previous Public Inquiry. Those remarks would have encompassed the need to keep full and proper records of all inspections and/or repairs. I was no doubt persuaded that appropriate action had been taken with the involvement of the FTA in May 1999. It appears that the benefits of the FTA involvement have waned. I notice that the operator entered into a further contract with the FTA in July 2009 and again in June 2010 (the operator signing this latter contract on 30th April 2010). I am entitled to hold that Mr Duncan's investigation and the subsequent renewed and/or increased involvement of the FTA has probably resulted in no further prohibition notices being issued since 16th July 2009. I do however note Mr Duncan's comment that the area in which the operator predominantly works is not an area that is regularly "policed" by VOSA and it may be that there had been no encounters during that period for that reason. Be that as it may if an operator is based in an area which might not be regularly "policed" by VOSA such an operator continues to have all the responsibilities of ensuring that the undertakings are fulfilled at all times - the same as any other (licensed) operator.110. There is, however, the contradictory position adopted by Mrs McColl regarding the whereabouts of and production of the records requested by Mr Duncan. This is an aspect I return to later on in this decision.111. I take the view that the issue of any prohibition notice is prima facie evidence of a failure in the undertaking to keep vehicles and trailers in a fit and serviceable condition.112. The position appears to be that arising from 17 encounters from 30th December 2004 to the date of compilation of Mr Duncan's report (5th November 2009) VOSA have issued 11 prohibition notices to vehicles and trailers used by the operator comprising 8 immediate, 1 delayed and 1 variation. As hereinbefore discussed 2 were "S" endorsed. As at the date of the Public Inquiry no more prohibition notices had been issued (at a roadside encounter on 18th August 2010 vehicle SY57 AEV was inspected - no defects were found).113. The prohibition notices issued by Mr Duncan on 12th June 2009 relate to the most serious defects for which such notices have been issued. The operator's position is that the vehicle (SY51 DSO) and trailer (A004572) were not in use and neither of them would have been used on the public roads in the condition that Mr Duncan found them in. Had notices been affixed to them that they were not in use and not to be used on the road it is probable that Mr Duncan would not have examined them and not issued prohibition notices. Given the nature of the defects and the explanation I am more inclined to accept the operator's position in relation to the vehicle. I am less attracted to the explanation in respect of the trailer. VOSA had been previously informed in Mr Calum Boyd's said letter that the trailer had been off the road since February 2009 (4 months or thereby prior to it being inspected by Mr Duncan). It was still "in test". Mr Duncan had suspicions that the trailer had probably been used since then. The nature of the defect was such that it did not matter whether it was being used on the road or exclusively at The Pier as the defect related to the body of the trailer which was likely to detach when it was tipped. There was however no direct evidence of it having been used on the roads.114. Any vehicle or trailer presented for annual test must be properly prepared and in a condition to pass the test - anything less is unacceptable. Hitherto this operator has not had its own roller brake testing equipment. It has made use of and continues to make use of the facilities at Ferguson Transport which facilities are also utilised by VOSA. I note the operator's concerns about different brake testing results as hereinbefore discussed. As the explanations for these inconsistent results may have a factual basis, on this occasion and on the evidence, I am prepared to give the operator the benefit of the doubt that I have in this regard. That said the results at annual test are not acceptable. It appears that this has not improved. I agree with Mr Duncan when he states that after a maintenance investigation it is reasonable to expect that would be an improvement in the maintenance standards. It appears that the pass rate has worsened since Mr Duncan began his maintenance investigation into the operator.115. There is no excuse for not having and not using a driver defect reporting system.116. There is also no excuse for not being able to produce, when required as this operator was required to produce, all inspection records. Of those that were produced some were not properly completed. This is another shortcoming.117. Against all of these negative observations it appears that the operator has more than adequate facilities for the maintenance of its vehicles and trailers. There are the recently established "state of the art" facilities at the now adjacent premises operated by Ferguson Transport to which the operator has access. There are dedicated shunter vehicles at The Pier and in the forest thereby reducing the wear and tear on vehicles used on the roads. As at the date of the Public Inquiry there was significant/increased back up from the FTA on a more frequent basis. Staff have been trained and will continue to be trained. A driver defect reporting system is in place. New reporting procedures are now in place with regard to inspection records. The forward planner continues to be used. New scanning equipment is in place to assist in the analysing of charts. It appears that there has been an improvement as no further prohibition notices have been issued. It is therefore difficult to understand why the results at annual test have got worse.The Drivers' Hours Rules and Regulations118. It appears that the investigation undertaken by Mrs Haddow in her capacity as a traffic examiner is the first such investigation made on behalf of VOSA into the licence. In considering Mrs Haddow's report and the evidence and adduced from the operator during the Public Inquiry Mrs MacColl featured significantly.119. In the conclusion of her report inter alia Mrs Haddow states that Mrs McColl had been helpful and apparently open with her. Mrs Haddow was also satisfied that the problems she had uncovered had not been done with "malicious intent". After listening to Mrs MacColl's evidence I understand that Mrs Haddow reconsidered her position with regard to her said conclusion.120. Even on the evidence available to Mrs Haddow at the time of her investigation it appears to me that her (initial) assessment of Mrs MacColl was generous. It did not mirror the view expressed by Mr Duncan who was met with general reluctance by Mrs MacColl and Mr Duncan Boyd to cooperate with his investigation. There was the initial reluctance to hand over records to Mr Duncan (I understand that Mrs Haddow was present but not involved on that occasion). There was the explanation that the records were with the mechanic who was on holiday and yet shortly thereafter such records as were available were produced. The reason for this is no doubt that McColl was aware that the records were not complete and the records that she did produce would probably not pass "muster". There is then the interview she had under caution with Mrs Haddow. It is interesting to note that she declined, as she was entitled so to do, to answer some of the more "difficult" questions. I am, I believe, entitled to look at the content of that interview as a whole and to conclude that Mrs MacColl was being coy and less than candid with some of her answers to Mrs Haddow. Against that, as Mr Whiteford argued, Mrs MacColl had candidly admitted to Mrs Haddow that her record-keeping left something to be desired, her knowledge of the driver's hours rules and regulations was not as it should be, she had little if any knowledge of digital tachographs and had not downloaded data from one vehicle fitted with such equipment.121. There is however the very real concern I have with regard to the charts dated the 15th May 2009, on the evidence it should have been dated 16th May 2009, and 23rd May 2009. It was Mrs MacColl who told me that she had entered the name of her brother Duncan Boyd on these two charts which were records of work undertaken by driver Allan MacEachen on the two Saturdays when he should have been taking his weekly rest.122. It is solely down to ever developing expertise of Mrs Haddow that she detected something wrong with these two charts. At the time of her investigation there was nothing to alert her to Mrs MacColl having any involvement with them. It appears to be for that reason that these two charts were not specifically discussed at the time of her interview with Mrs MacColl. By the same token Mrs MacColl was well aware of what Mrs Haddow was involved in and looking for and she could have volunteered that wrongdoing at the time of the interview. I had a detailed in-depth discussion with Mrs MacColl to try and get to the bottom of why she had falsified these two charts. She explained that it was to "protect" driver Allan MacEachen who had driven/worked all the hours lawfully available to him in the preceding week. This is not acceptable. The first issue it raises is that she knew that driver Allan MacEachen should have been on a weekly rest and should not have been driving. In her discussion with me she explained that the work involved a lot of forest work. She agreed with me that she felt that there was no real danger being posed to the public, as the work he was involved in was mainly forest work and consistent with the charts the driving comprised short journeys. This scenario is not far removed from the circumstances of the Hazco Environmental Services case. There is the further aggravation that driver MacEachen handed to her charts for these two dates with the centerfields not completed which tends to suggest premeditation and collusion.123. However, I cannot look at Mrs MacColl in isolation for this particular mischief. Again in her evidence to me Mrs MacColl informed me that the day-to-day running of the business is down to joint decisions by the directors namely three of her brothers. She had said as much in her interview to Mrs Haddow who had asked her "Who is the transport manager?" to which she replied "It is jointly between the 3 of them." I am in no doubt that Mrs MacColl had little say in the actual day-to-day running of the business. I am also in no doubt that given the family relationship that some aspects of her role as transport manager became somewhat obscured and the three directors probably unwittingly absorbed such aspects of the role. It follows that on the balance of probabilities the three directors knew that driver Allan MacEachen was "out of hours" when he was working on these two Saturdays - in fairness I do not recall discussing this specific point with any of them. However I am fortified in this view as Mr Duncan Boyd told Mrs Haddow at the end of his interview that the operator did not concentrate on the haulage side of the business (at that time) and that "it didn't look good". I am prepared to accept that neither driver Allan MacEachen nor Mr Duncan Boyd were aware of Mrs MacColl actually entering Duncan Boyd's name on the centerfields of these two charts.124. As the Public Inquiry developed I became concerned about Mrs MacColl's position. When I asked if she had been put up to taking the blame for falsifying these two charts she insisted she had not. I am also of the view that in reality because of the family relationship she may not have been able to exercise her authority as transport manager and, as already stated, the whole operation was under the direction of her three brothers and in particular her brother Mr Calum Boyd. There is no disciplinary procedure in place. Again in reality the prospect of Mrs MacColl being able to meaningfully discipline her brothers particularly her eldest brother and the managing director of the operator Mr Calum Boyd is nil. It is probably a consequence of this relationship that Mrs MacColl has neither had effective nor continuous control of the haulage side of the business as transport manager. If the business is to continue with the benefit of a Standard National Goods Vehicle Operators Licence then the whole structuring of the management of the business will require to be revisited putting aside the close-knit family relationship. That will require a disciplinary procedure to be established. 125. This is a case where I require to take action against the licence. I agree with Mr Whiteford that the stage has not been reached for this operator to be put out of business for loss of the licence. The operator had initiated remedial action immediately after the VOSA investigation. There was an improved situation by the time the operator appeared at the Public Inquiry. Accordingly a lesser action than revocation is appropriate. In the whole circumstances I cannot accede to the curtailment suggested by Mr Whiteford. The operator does, however, retain its good repute.Decision126. I find the case for VOSA comprising the reports prepared by Mrs Haddow and Mr Duncan taken in conjunction with the evidence led at the Public Inquiry to be established.127. Had the two vehicles and trailer prohibited by Mr Duncan on 12th October 2009 been marked as "off the road" then in all probability the operator would not have been issued with the prohibitions let alone the "S" marked prohibitions. That apart there were significant shortcomings in the maintenance systems with the most serious aspect of there being no driver defect reporting system in place at that time.128. The findings in respect of the maintenance systems are such that I am satisfied that the operator has again failed in its obligation to ensure that vehicles and trailers are kept fit and serviceable. It also failed to keep full records and to make records available when requested by both Mr Duncan and Mrs Haddow.129. With regard to Mrs MacColl in her capacity as transport manager it is the lack of candour with Mrs Haddow and her creation of false records all of which was no doubt done in an attempt to protect not only the family, the family business and driver Allan MacEachen, which brings into sharp focus the question of her good repute. Mr Whiteford recognised that her repute was "tarnished". The Act makes it clear that one is either of good repute or is not. The actings of Mrs MacColl are such that she is no longer of good repute.130. In terms of Section 27 of the Act it is mandatory for a traffic commissioner to direct that where the licence holder is no longer professionally competent to revoke the licence. However Paragraph 10 of Schedule 3 of the Act allows the operator as holder of the licence where the transport manager has lost her good repute not to be treated as failing to satisfy the requirement of professional competence until the expiry of a period not exceeding 18 months. Accordingly I afford the operator a period of six months from the date of this decision to nominate a transport manager on the licence. In the event that a new transport manager is not nominated on the licence in that period then the licence would fall to be revoked for lack of professional competence.131. In respect of the shortcomings in the maintenance systems, the drivers hours offences and other shortcomings detected by Mr Duncan and Mrs Haddow and against the background that this is the second time that this operator has been called to public inquiry, in terms of Section 26(1)(f) of the Act I curtail the authority of the licence to 3 vehicles for a period of 2 weeks. The operator will inform the Office of the Traffic Commissioner which 3 vehicles are to be removed from the licence for the period of curtailment within 7 days of the date of this decision failing which I shall direct which 3 vehicles are to be removed. The said 3 vehicles whilst not specified on the licence and in terms of section 26(6)(b) of the Act will not be specified in any other operator's licence. The trailer authorisation is not affected.These orders and determinations will come into effect on 31st December 2010 at 23:59 hours or earlier if requested by the operator........................................................................Richard Hamilton McFarlaneDeputy Traffic Commissioner for the Scottish Traffic Area10th December 2010.Notes 1 There are eight Traffic Commissioners, each supported by a number of deputies, covering eight traffic areas across the UK. The Scottish Traffic Area Office is in Edinburgh.2 The Traffic Commissioners are statutorily independent Licensing Authorities responsible for bus, coach and goods vehicle operators and for local bus service registrations. They can also take disciplinary action against the licence of bus, coach and lorry drivers who commit road and certain other offences.3 Prohibition notices can be issued by the Vehicle and Operator Services Agency (VOSA) following an inspection and can prevent a vehicle from being driven until it is roadworthy.4 Traffic Commissioners have the power to revoke, suspend or curtail a company's licence to operate buses, coaches and lorries if they are satisfied that a company is failing to ensure that its vehicles are maintained in a fit and serviceable condition when being operated on public roads. They can also take such action if they are satisfied that a company has failed to honour certain Statements of Intent made when they applied for their operator's licence (i.e. that vehicles would be kept fit and serviceable and that the laws relating to the driving and operation of vehicles used under the licence would be observed).5 Action can also be taken against PSV operators who fail to operate local bus services properly or in contravention of the registered particulars. Traffic Commissioners have the power to cancel or restrict local services an operator may run, or impose a fine if services have not been operated, or operated improperly, to a significant extent.

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