CPA Bulletin

42 CPA Bulletin > November 2022 www.cpa.uk.net Q&As: 1 q&a s To answer this question, we need to understand whether all the hires are for a fixed period, i.e. a specific start and end date; or, for an indeterminate (open-ended) hire, i.e. a specific start date but no specific end date; or a mixture of both? Your reference to an ‘auto off-hire’ does not make this clear. If an ‘auto off-hire’ has been stated and agreed, then this would appear to be a fixed period hire. If that is so, then the hire would end at the pre-agreed point, and no further notification would be required from the customer. Equally, if an ‘auto off-hire’ has not been stated, then an indeterminate hire would appear to be in existence and clause 24(a) of the Model Conditions would apply. Hire charges would only cease when you had received the ‘off-hire’ notification from the customer - whether this is by phone/text/email - is your choice. Subject to whether the hire is fixed or indeterminate, then the requirement to receive an ‘off-hire’ from the customer will be subject to that particular hire agreement. I hope this answers your query. I amhoping that you can provide some clarity with the ‘off-hire’ process we are occasionally experiencing fromsome customers. Those customers stipulate an ‘auto off-hire’ which we usually like to take in writing. In one case, a particular customer has not done this, and incurred two weeks additional hire charges once they realised the plant was still on hire. I amstruggling to showwhere it says within the Model Conditions to ‘call to off-hire’. I have referred the customer to the Model Conditions, but he is insisting that he cannot find anything relating to him having to ‘off-hire’. Can you provideme with some guidance? When we have had a customer who does not have ‘hired-in plant’ insurance cover, we have been charging the damage waiver fee of 20% of the hire rate. Do we have to charge this rate, or can it be reduced? The insurer’s policy which covers the ‘damage waiver’ may stipulate a specific fee that you must charge your customer when offering this cover; but if it is silent, then it may be at your discretion what you may charge. This may also apply with any ‘Excess’ fees - i.e., howmuch your customer must first pay before the policy is activated; or minimum/maximum cover for each item of plant being hired to them. I would check the policy and speak with your insurance broker before proceeding. On those occasions when we supply an operator with an item of plant to a customer under the Model Conditions, does the status of the operator matter, i.e., whether the operator is directly employed by us, is self-employed, or an agency supplied individual? No, it would not. The terms and conditions - particularly clause 8 of the Model Conditions - ‘Handling of Plant’ - requires you to supply a competent person. Whether this person was directly employed or was self-employed or came from an agency is immaterial; but they would need to be competent for the machine that they would be operating during the hire period. Once that criterion has been achieved, then that person would be deemed to be the customer’s agent or servant during the hire period and would be under their direction and control. Should you wish to discuss any aspect of this in more detail then please get in touch. We have an employee who has been working some distance from home for the last five weeks. The site in question operates six days a week, and 12 hours per day. Although the site closes on the seventh day, we pay him his shift hours for that day, as well as a subsistence rate. What is the recommended rest days after working away for this period? Under the Working Time Regulations (WTR), an employee is capped at working 13 hours a day, so as your employee is working 12 hours, then he is complying with that aspect of the WTR. The WTR also states that a worker must have either one rest day (24 hours uninterrupted rest) in seven days or two rest days (48 hours uninterrupted rest) in 14 days. As your worker appears to have every seventh day off, then this also complies with the WTR. So, in this instance, there is no need to offer ‘compensatory’ rest. There may situations where ‘Compensatory Rest’ will apply to a worker, i.e. if they don’t have a right to specific rest breaks - whether daily or weekly, and so will be compensated the equivalent time that they had ‘lost’, however, because your employee was resting on the seventh day, it would appear that he does not qualify for this benefit on this occasion. Should you wish to ‘gift’ him any additional rest days after working for five weeks and him being a long way from home, would be your choice, but it may be viewed as a precedent which other staff may also come to expect if they work under a similar pattern. Whilst every care has been taken to ensure the accuracy of the answers given within this section of the CPA Bulletin, no liability for any damage, liability, cost, loss and/or expense which the reader has incurred can be accepted by the Construction Plant-hire Association (CPA). The reader should obtain independent legal advice on any issue reported within the CPA Bulletin, before proceeding with a course of action.