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Transport Benevolent Fund - 2019
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May 22 2019
By Mike Jewell

Mike Jewell is the industry’s leading legal journalist, covering all key cases brought before Public Inquries, Tribunals, Magistrates and Crown Courts

Abus licence suspension is quashed

The suspension of the 25-vehicle international licence held by Bristol-based Abus by Traffic Commissioner (TC) Kevin Rooney until such time it has reorganised matters so that the company is the entity actually operating the vehicles and not LC Munden and Sons, trading as Crown Coachways, has been quashed by the Upper Tribunal on appeal.

The firm had been called before the TC after a Vehicle Examiner reported that the two businesses were co-located; the vehicles were owned and maintained by Mundens; and the drivers were employed by Mundens. He had been assisted during his visit by Simon Munden, Director of Mundens and Mundens’ general manager.

Abus sole director Alan Peters said that prior to the grant of his licence, all Mundens’ vehicles had been on hire to his former sole trader licence. It was easier for him to show financial standing, so the Mundens licence was surrendered and all work contracted through Abus.

Mundens had PAYE payroll systems in place and it was easy simply to employ drivers through Mundens and then hire them to Abus. Abus paid for Driver CPC training. The arrangement was akin to using Mundens as a driver employment agency.

The TC said that while Abus had influence over the drivers, it was Mundens who had control. It followed that the vehicles were operated by Mundens, not Abus.

Consequently, Abus had lent its licence authority to an illegal operator. That would normally have serious ramifications for the good repute of the operator and Transport Manager. However, there was nothing to suggest that the current position was arrived at with any ill intent. It simply evolved over time. It was clear that the lines at times became blurred between the two businesses.

In reality, it ran as a single entity with all parties working together to deliver the service. It was necessary to take action to regularise the operation [routeone/Court Report/24 October 2018].

The Tribunal said that in deciding for whom the drivers “worked”, it had to look at the reality of the situation. The driver notices, sample contract of employment and correspondence examined by the TC did not accurately reflect what the actual working arrangements were between Abus, Mundens and Mundens’ drivers.

The work was contracted through Abus, Abus owned the buses, Mundens employed the drivers and supplied them to Abus to perform driving jobs for Abus. Abus provided the drivers with training and Abus allocated each driver their duties.

Abus paid Mundens for the drivers plus an agency commission and Mundens paid the drivers and looked after payroll responsibilities.

The TC accepted that it was a genuine arrangement between Abus and Mundens.

The drivers had a contract with Mundens and Mundens had a contract with Abus. The drivers were working for Abus in terms of their contracts of employment with Mundens and in pursuance of the agreement between Abus and Mundens.

Accordingly, as the drivers were “working” for Abus, Abus was the operator of the vehicles driven by the Mundens’ drivers.

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