BeMaMiToe: showing that you as an employer did everything you could
If an employed driver breaks the driving and rest time rules, in the Netherlands the employer is regarded as the offender. The only way out is to show that you gave the necessary orders, took the necessary measures, provided the necessary means and exercised supervision. Together this is called BeMaMiToe, and it is all about proof: what has not been recorded does not count.
The analysis portal records those four per driver, with the date. From the standards you set and the letters the driver signed, to the checks you carried out and whether the driver really read his analysis in the app.
Orders, Measures, Means and Supervision: what the law requires
The second paragraph does not apply if the employer demonstrates that he gave the necessary orders, took the necessary measures, provided the necessary means and exercised the supervision that can reasonably be required to ensure compliance with the provision.
Article 8:1(3) of the Dutch Working Hours Decree for Transport (Arbeidstijdenbesluit vervoer)
At European level the same is laid down in Regulation (EC) 561/2006, Article 10: the transport undertaking instructs the driver properly and checks regularly that he complies with the driving and rest times (paragraph 2), and is liable for infringements committed by its drivers (paragraph 3).
The four pillars, and what the portal records for each pillar
BeOrders
Clear instructions and rules that the driver demonstrably knows.
- Your own company standards, stricter than the law, recorded and monitored per driver.
- Infringement letters in the driver's language, with the infringement and the article; the driver sees and signs them in the app, with the time recorded.
- A disciplinary ladder based on the ERRU points, with your own procedure for each level.
MaMeasures
Stepping in when things go wrong, and preventing it from happening again.
- All infringements per driver, with severity, ERRU points and fine indication, so you can see where you need to step in.
- Every week on one page: who is suddenly committing many infringements, which cards and calibrations are expiring and which downloads are missing.
- An HR file per driver with notes and discussions per infringement, which can be exported for a performance review.
MiMeans
The driver has what he needs to comply with the rules.
- The VYS Tacho app downloads the driver card and the vehicle unit automatically via Bluetooth, without installing anything.
- The Tacho analyse driver app shows the driver his own infringements, with an explanation, amount and ERRU points.
- The simulator to practise operating the tachograph, with examples for manual entry and country codes.
- Driver CPC training planned per driver, and the expiry dates of driver card and driving licence monitored.
ToeSupervision
Checking regularly, and being able to show that you did.
- Every card and vehicle download checked against the driving and rest times, and per driver and vehicle you can see who has not been downloaded for too long.
- Follow-up: per driver, his infringements next to what he did to learn from them, right down to how long he read his analysis.
- The oversight statement records that you have carried out checks, with the figures for that period.
- Reports per driver as PDF, for the file.
The driver app: showing that the driver has seen it
An analysis that nobody reads proves little. In the Tacho analyse app the driver sees his own infringements. The app keeps track of whether he actually does so, and this appears in the portal under HR > Follow-up next to his infringements.
- How often the driver opened the app, in the selected period and in total.
- How long he spent in the app and in his analysis, and how long he scrolled through the analysis.
- Whether he opened the simulator and viewed the examples that go with his own infringements.
- Whether he has seen and signed the infringement letter, with the time recorded.
- Everything is kept permanently, so the evidence is still there after a year.
The portal shows what you have done. Whether that was enough is for the ILT or the court to judge.
BeMaMiToe concerns the driving and rest times. False or altered data, card misuse and the operation of the tachograph do not fall under it: whoever did it is personally responsible for that.
Questions about BeMaMiToe
Where is BeMaMiToe in the law?
In Article 8:1 of the Dutch Working Hours Decree for Transport (Arbeidstijdenbesluit vervoer). Paragraph 2 says that the employer is regarded as the offender if his driver breaks a rule that applies to the driver. Paragraph 3 says that this does not apply if the employer shows that he gave the necessary orders, took the necessary measures, provided the necessary means and exercised the supervision that can reasonably be required. The European basis is Article 10 of Regulation (EC) 561/2006.
Which infringements does it apply to?
To the driving and rest times of an employed driver, such as driving time, breaks, daily rest and weekly rest. Not to false or altered data and card misuse, and not to the operation of the tachograph such as card use and country codes: whoever did it is personally responsible for that.
Is an analysis package enough on its own?
No. Software is a means. What matters is that you use it to show that you instructed, intervened, gave the driver the means and checked regularly, and that this has been recorded. That is why the portal stores per driver what happened, with the date: the letter he signed, the check you carried out and whether he read his analysis.
How do I show that the driver has seen his analysis?
With the Tacho analyse driver app. It keeps track of how often the driver opened the app, how long he read his analysis and whether he viewed the examples in the simulator for his infringements. In the portal this appears under HR > Follow-up, next to his infringements, and it is kept permanently.
One week free, with your own files
Request a demo and we open the portal for you for a week with the DDD files from your own tachographs and driver cards. That way you see what comes out of the files of your drivers and vehicles. The demo is free of charge.
Request a free demo