Arriva Rail North DOO

[lejog]

That word "reasonable" - all "reasonable" endeavours - is problematic. Under the Equality Act, all service providers must make "reasonable adjustments" to make their services accessible to disabled people. What is "reasonable" takes into account a number of factors, including the size and resources of the service provider for example, and isn't set down definitively anywhere. The only time it is pinnedc down is through retrospective legal action, of which there isn't much.

What one person considers to be "reasonable" in relation to finding and providing a second member of staff will be different from another...

??? The post of mine you quote, does not mention the word reasonable, only that there is no mention of endeavours in the clause regarding the planning of staffing, it is an unqualified Northern "shall" plan for a second staff member on all services.

In post #104, I provided a link to a page briefly explaining the differences between the terms best, all reasonable and reasonable endeavours when used in a contract.

I'd disagree that the term reasonable is not well understood in legal terms, given there is always a degree of subjectivity. Certainly "reasonable endeavours" is taken to mean the steps a competent person would take without making undue sacrifices to their commercial interests. There is a mountain of case law to back this up.

The term "all reasonable endeavours" implies taking extra steps and (the bit that is far less well defined in case law) possibly making significant commercial sacrifices. Northern have to provide all reasonable endeavours to actually operate trains with a second person.

 

[Solent&Wessex]

Clause 18.2, p311 is incredibly verbose, but does in fact contain an unqualified direct mandate - no ifs, buts, or endeavours.



From a project management/operational background, I'd actually interpret that as an obligation to plan for 100% coverage and a degree of contingency cover (a plan isn't a plan if it doesn't allow for sickness etc), but some lawyers may argue for a literal meaning.

I refer you to my earlier post. The franchise agreement actually says:

"Where in accordance with paragraph 18.1, a Passenger Service is operated as Driver Controlled Operation the Franchisee shall, in preparing the train crew diagram relating to such Passenger Service plan for an additional Franchise Employee (that is, in addition to the driver) to be present on such Passenger Service for the purposes of customer service and/or revenue control. The Passenger Services in respect of which the Franchisee shall plan for an additional Franchisee Employee (that is, in addition to the driver) to be present as required by this paragraph 18.2 are as follows:107" (107 = text has been omitted from the document this is because the Director General Rail or Secretary of State has decided to exclude the text in accordance with the provisions within the Freedom of Information Act 2000.)

There is nothing to say it is 100% coverage. It does not define anywhere which services will run as DCO mode, merely that a % of overall services will do. What it does do is show there is a list of which services must be planned to have somebody else on board. That list is redacted. If it were 100% of all services then there would be no need for the text above in bold. By the fact there is a list of services which must be planned to have a second person, then one could reasonably assume that there is a list of services which do not have to have a second person. If there was no such list, and 100% of services were required to be planned to carry a second person, then the bold paragraph would not be needed.

 

[northwichcat]

There is nothing to say it is 100% coverage. It does not define anywhere which services will run as DCO mode, merely that a % of overall services will do.

Actually it's a percentage of mileage, so a Chester to Leeds via Bradford service counts for a much higher proportion than a Huddersfield to Wakefield service.

 

[Solent&Wessex]

Actually it's a percentage of mileage, so a Chester to Leeds via Bradford service counts for a much higher proportion than a Huddersfield to Wakefield service.

That doesn't alter the theme of my post though - i.e. the bit in bold.

 

[lejog]

I refer you to my earlier post. The franchise agreement actually says:

snip

There is nothing to say it is 100% coverage. It does not define anywhere which services will run as DCO mode, merely that a % of overall services will do. What it does do is show there is a list of which services must be planned to have somebody else on board. That list is redacted. If it were 100% of all services then there would be no need for the text above in bold. By the fact there is a list of services which must be planned to have a second person, then one could reasonably assume that there is a list of services which do not have to have a second person. If there was no such list, and 100% of services were required to be planned to carry a second person, then the bold paragraph would not be needed.

I'm not sure if we are talking at cross purposes here, but the first sentence of 18.2 includes a clear mandate that Northern must plan for a second staff member on 100% of DCO services.

(Where) a Passenger Service is operated as Driver Controlled Operation the Franchisee shall, in preparing the train crew diagram relating to such Passenger Service, plan for an additional Franchise Employee (that is, in addition to the driver) to be present ....

That is unequivocal and unambiguous. Shall in contracts translates as "has the duty to" and in this case its 100% mandatory, there are no ifs or buts in the sentence. Sentence 2 says.

The Passenger Services in respect of which the Franchisee shall plan for an additional Franchisee Employee (that is, in addition to the driver) to be present as required by this paragraph 18.2 are as follows:

Sentence 1 has established that this is exactly equivalent to saying:

"A list of DCO Services is:".

I agree that there is no need for the length of the sentence, that's just the longwinded way some lawyers write. I thought initially they were paid for contract work by the word, but having been stuck in a room with them for days on end during contract negotiations, some of them talk like that too.

 

[kw12]

As far as I'm aware every DOO strike in recent times organised by the RMT has involved balloting all their conductor members working for the TOC they're in dispute with

Some of the RMT strikes on London Underground have been specific to individual lines, for example, the RMT driver strikes in March 2016 on the Piccadilly Line were over issues over the 1973 tube stock, which only operates on that line. Presumably this was because if the RMT had tried to include their other London Underground drivers in these strikes the inclusion of drivers who do not drive 1973 tube stock would have made those particular strikes illegal.

Furthermore, IIRC, some of the court injunctions that Southern successfully obtained against ASLEF last year were because ballots had included some drivers that were outside the scope of the dispute.

Thus, Arriva Trains may take the view that if they were to announce that their DCO proposals did not include any routes operated by Hull or Newcastle based crews, it would be illegal for RMT to include any of their Hull or Newcastle based crews in any ballots about DCO/DOO strikes. If the company did indeed take this view they would no doubt seek a court injunction if RMT called any strikes that were the result of a ballot that included staff who should have been excluded from the ballot (and any resulting industrial action).

 

[LNW-GW Joint]

RMT have set 26 January for Northern to confirm the retention of guards on its trains. http://www.rmt.org.uk/news/rmt-seeks-arriva-rail-north-guard-assurances/
It concludes with this gratuitous insult:

This is yet another unacceptable example of the out of control greed and avarice of foreign state-owned train operators who wish to erode the safety standards of the UK’s railways in order that they can extract maximum profits for the purpose of subsidising rail fares for European passengers and to further line their already bulging pockets

And this is the Northern response: https://www.northernrailway.co.uk/n...esponds-to-rmt-statement-on-january-ultimatum

Our plans for customers include new and refurbished trains, station improvements, more seats and extra services during peak periods. It is really important to us that our colleagues and their representatives are involved in discussing how to bring these improvements to life.
That means we are committed to sharing proposals when they are ready. This is not the time to talk about a potential dispute, we want to sit down and work positively with the trade unions.”

Remind me who it was that set requirements for the Northern franchise (whoever won it) to introduce DOO?

 

[northwichcat]

RMT have set 26 January for Northern to confirm the retention of guards on its trains.
...
Remind me who it was that set requirements for the Northern franchise (whoever won it) to introduce DOO?

The franchise spec was approved by both DfT and Rail North. At the time the government was a Conservative & Lib Dem Coalition while TfGM and Metro (both Labour controlled) make up almost half of Rail North's board (with many other Labour run councils on the board), so you could say the three main political parties in England agreed to the DCO requirement in the franchise spec after rejecting the initial proposal for DOO.

Labour run Merseytravel requiring Merseyrail to move to full DOO proves Labour (even with Corbyn as leader) are just happy to implement more DOO as the Conservatives. However, the RMT aren't going to attack Corbyn led Labour in DOO disputes - it's those horrible greedy multinational companies we want to attack not the 'great almighty' Corbyn, who says his party supports the RMT's stance on DOO even though they don't in practice.
--- old post above --- --- new post below ---

Thus, Arriva Trains may take the view that if they were to announce that their DCO proposals did not include any routes operated by Hull or Newcastle based crews, it would be illegal for RMT to include any of their Hull or Newcastle based crews in any ballots about DCO/DOO strikes. If the company did indeed take this view they would no doubt seek a court injunction if RMT called any strikes that were the result of a ballot that included staff who should have been excluded from the ballot (and any resulting industrial action).

So in theory if Arriva said we'll introduce DCO for all services operated by two new depots (which no staff currently work at) then no-one existing staff can strike unless they are forced to transfer to the new depots.

 

[FordFocus]

There are two points about this if I may. The RMT are getting concerns from it's members with regards to their future roles. The company council and higher union leaders can't keep giving the answer "we don't know yet, we've heard nothing" with the guards membership in limbo. Will their depot be affected with DOO? What will the future working arrangements be? Will they need to plan for redundancy or relocation? A whole list of questions. Understandably, RMT have a duty to it's members to get the answers for it's paying membership.

At the same time Northern probably don't have a finalised plan of what they are going to do once the new rolling stock arrives with this DOO equipment. Drivers don't have it in their contract and they still haven't sorted out the 2016 pay award for all four trade unions. I think the biggest factor of why Northern are saying little is because they are awaiting to see what happens with the GTR dispute and will await instructions from Mr Wilkinson and the DfT when the time comes.

I've heard from a source close to company management that Arriva Northern have told the DfT that they aren't keen to implement this DOO scheme in the North. There isn't the appetite for an industrial dispute with relations between company and staff already strained and it's not even a year into Arriva stewardship yet. They wanted a Scotrail agreement but the DfT have said no. Interesting times again.

 

[Class 170101]

I've heard from a source close to company management that Arriva Northern have told the DfT that they aren't keen to implement this DOO scheme in the North. There isn't the appetite for an industrial dispute with relations between company and staff already strained and it's not even a year into Arriva stewardship yet. They wanted a Scotrail agreement but the DfT have said no. Interesting times again.

Surely the DfT just needs to say yes you avoid implement DCO but there is no more susidy for the franchise. The costs (if there are any) 100% yours to bear.

 

[LNW-GW Joint]

Surely the DfT just needs to say yes you avoid implement DCO but there is no more susidy for the franchise. The costs (if there are any) 100% yours to bear.

I'm sure there will be a debate about subsidy/premium with/without DOO, but I'm sure Arriva won't take the financial risk of implementing it in the present climate.
I'm also sure that the percentage of Northern DOO services will be low initially, because the routes/trains will not be properly equipped for a long time.
DfT wants to establish a principle going forward for the longer term (and the unions don't).
That's different from Merseytravel who want to go to 100% DOO over a short period of a year or so as their new trains arrive.

 

[lejog]

At the same time Northern probably don't have a finalised plan of what they are going to do once the new rolling stock arrives with this DOO equipment. Drivers don't have it in their contract and they still haven't sorted out the 2016 pay award for all four trade unions. I think the biggest factor of why Northern are saying little is because they are awaiting to see what happens with the GTR dispute and will await instructions from Mr Wilkinson and the DfT when the time comes.

I've heard from a source close to company management that Arriva Northern have told the DfT that they aren't keen to implement this DOO scheme in the North. There isn't the appetite for an industrial dispute with relations between company and staff already strained and it's not even a year into Arriva stewardship yet. They wanted a Scotrail agreement but the DfT have said no. Interesting times again.

Arriva signed a contract with the DfT committing them to implement DOO less than a year ago. They would not have done this without a plan to achieve this - whether or not the plan is achievable is another matter.

If the company wanted a Scotrail agreement, why would they sign a contract obliging them to run services operated .....

by a driver alone without the need for a conductor (or any other Franchise Employee)

?
--- old post above --- --- new post below ---

Surely the DfT just needs to say yes you avoid implement DCO but there is no more susidy for the franchise. The costs (if there are any) 100% yours to bear.

I don't claim to have read all the complex legal bits of the Franchise Agreement, but it is safe that would be the default position if Arriva were in breach of their DOO obligations (plus the DfT could choose to terminate the contract if agreed remedial actions don't fix the breach).
--- old post above --- --- new post below ---

I'm sure there will be a debate about subsidy/premium with/without DOO, but I'm sure Arriva won't take the financial risk of implementing it in the present climate.

But they have committed to implement it according to a phased timetable (details redacted).

I'm also sure that the percentage of Northern DOO services will be low initially, because the routes/trains will not be properly equipped for a long time.
DfT wants to establish a principle going forward for the longer term (and the unions don't).
That's different from Merseytravel who want to go to 100% DOO over a short period of a year or so as their new trains arrive.

While details of what Arriva have actually agreed to deliver aren't public, it should be noted that the ITT requested 50% of mileage to be DOO by 2020.

 

[Solent&Wessex]

I'm sure there will be a debate about subsidy/premium with/without DOO, but I'm sure Arriva won't take the financial risk of implementing it in the present climate.
I'm also sure that the percentage of Northern DOO services will be low initially, because the routes/trains will not be properly equipped for a long time.
DfT wants to establish a principle going forward for the longer term (and the unions don't).
That's different from Merseytravel who want to go to 100% DOO over a short period of a year or so as their new trains arrive.

Arriva signed a contract with the DfT committing them to implement DOO less than a year ago. They would not have done this without a plan to achieve this - whether or not the plan is achievable is another matter.

If the company wanted a Scotrail agreement, why would they sign a contract obliging them to run services operated .....

?
--- old post above --- --- new post below ---


I don't claim to have read all the complex legal bits of the Franchise Agreement, but it is safe that would be the default position if Arriva were in breach of their DOO obligations (plus the DfT could choose to terminate the contract if agreed remedial actions don't fix the breach).
--- old post above --- --- new post below ---


But they have committed to implement it according to a phased timetable (details redacted).



While details of what Arriva have actually agreed to deliver aren't public, it should be noted that the ITT requested 50% of mileage to be DOO by 2020.

There is no financial hit for Arriva in implementing DOO in any form, possibly only a reputational hit. There is a rare clause in their franchise which says that the DfT will cover for costs and losses incurred via industrial action.

Informed sources suggest to me that their bid and hence subsequent franchise agreement was for significantly more than 50% DOO, by time all was said and done.

 

[Robertj21a]

There is no financial hit for Arriva in implementing DOO in any form, possibly only a reputational hit. There is a rare clause in their franchise which says that the DfT will cover for costs and losses incurred via industrial action.

Informed sources suggest to me that their bid and hence subsequent franchise agreement was for significantly more than 50% DOO, by time all was said and done.

Is this definitely the case ? - so, the Arriva/DfT arrangement is (for DOO purposes) basically the same as that for Southern ?

 

[HH]

Informed sources suggest to me that their bid and hence subsequent franchise agreement was for significantly more than 50% DOO, by time all was said and done.

100% is the ultimate aim, within the life of the franchise.

I don't think anyone should be in any doubt about what DfT are after here. I don't know what Arriva bid, but if I were in their shoes I'd have been looking to make the following savings from DCO in order to help win the franchise:

1. Reduce the cover ratio as I can still run the train if the Guard goes missing;
2. Consider whether the Guard needs to be on the service throughout its entire journey, given that I have ticket barriers at many stations; and
3. Consider, taking into account footfall, whether further routes could also be part-covered; these last two could save diagrams on some routes, due to less "downtime".

None of these are huge changes and could be introduced gradually, just like the DCO, and therefore there would be no compulsory redundancies. This would save 30%+ of the staff, easily, and is what DfT are looking for.

 

[Bletchleyite]

100% is the ultimate aim, within the life of the franchise.

Full stock replacement? 15x aren't likely to be suitable for DOO in any form.

 

[gimmea50anyday]

Full stock replacement? 15x aren't likely to be suitable for DOO in any form.

Why not? 317s and 455s are and aside from the obvious traction differences they are physically identical trains.

 

[Bletchleyite]

Why not? 317s and 455s are and aside from the obvious traction differences they are physically identical trains.

Fair point, though they run DOO with platform equipment, don't they? I don't believe there is a plan for any new installations of that, rather on-train CCTV is being used, which I think would put slab-sided Mk3 based units out of gauge?

That said, DOO on a 2-car DMU shouldn't really need anything more than a large folding wing mirror (and I tend to be of the view that DOO would be of more use - and safer due to the shorter train - on rural branches to reduce costs than on 12-car London commuter EMUs). That's how the Swiss do it with rather longer trains. Though I guess such branches would need track-circuiting which would add cost.

 

[northwichcat]

100% is the ultimate aim, within the life of the franchise.

Source? The ITT specified 50% of mileage (not services) to go to DCO once all the new trains were in service and for bidders to identify appropriate routes and times for DCO. The fact that some Northern Connect routes will see a mix of new and existing stock might mean the aim is to implement DCO during the off-peak period between the morning and evening peak and then at peak times when 158s are used they'll be guards. The public copy of the franchise agreement has the section on DCO blanked out so only people who have signed NDAs will know what it says and I doubt they'll risk their jobs by leaking the information.
--- old post above --- --- new post below ---

Fair point, though they run DOO with platform equipment, don't they? I don't believe there is a plan for any new installations of that, rather on-train CCTV is being used, which I think would put slab-sided Mk3 based units out of gauge?

That said, DOO on a 2-car DMU shouldn't really need anything more than a large folding wing mirror (and I tend to be of the view that DOO would be of more use - and safer due to the shorter train - on rural branches to reduce costs than on 12-car London commuter EMUs). That's how the Swiss do it with rather longer trains. Though I guess such branches would need track-circuiting which would add cost.

There doesn't seem to be any plans to modify existing trains either with Northern or transferring to Northern to be able to run DCO services. There's a modification specified for the pantograph on the 319s and 333s to be monitored by CCTV but nothing else, while the new TPE trains are specified to be DOO compatible even though there is no requirement to implement DOO during the current TPE franchise.

 

[LowLevel]

Why not? 317s and 455s are and aside from the obvious traction differences they are physically identical trains.

I would be extremely surprised if any 15X other than 150s could be converted to DOO operation now for the simple reason that the only way out of the cab for the driver in any circumstances, including an emergency, is via the door into the passenger vestibule. Consequently if some idiot wedges a large pushchair across it or similar the driver could be trapped. I doubt very much that at this stage in life 150s are worth converting.

 

[kw12]

In London the Night Tube was eventually introduced using drivers recruited specifically for operating the Night Tube, rather than by using existing drivers (and increasing the number of such drivers).

Arriva Trains could potentially take a similar approach and seek to operate DCO services solely with new staff, recruited to new roles created specifically for DCO services, without any changes to the terms and conditions or continued employment of existing drivers and guards. Such an approach would probably mean that after DCO were implemented the company would have an excess of current drivers and guards until natural wastage brought the numbers down to the required levels. However, if hypothetically, Arriva Trains were to take such an approach, would existing drivers or guards be able to strike legally, given that this approach would mean that DCO would not directly impact them?

 

[northwichcat]

Such an approach would probably mean that after DCO were implemented the company would have an excess of current drivers and guards until natural wastage brought the numbers down to the required levels.

Arriva do have a lot of additional services to introduce so will need quite a lot of new staff.

Also is there any reason why a guard can act as a 'AFC' on a service where there is a lot of revenue to collect but can't act as a 'second member of franchise staff' on a DCO service - which is effectively the same thing. I realise that wouldn't work for drivers as driving guard-less trains requires more training than driving trains with guards.

 

[hairyhandedfool]

...That said, DOO on a 2-car DMU shouldn't really need anything more than a large folding wing mirror...

On straight platforms maybe.....

 

[LowLevel]

I work plenty of 2-6 car 15X trains where I have to move all over the place to see it all. Bearing in mind of course they don't just run in single sets. At Ambergate we have to stand several feet out against a fence, and with a 3 car you have to move to the middle of the train and do the same, there must be similar on Northern.

I still don't see how removing the door duties from the guard warrants removing the rest of their authority as well though I quite like our current division of responsibilities where what I say sticks with the passengers and that side of the train operation and the same with the driver and the technical side of the train operation.

Am I really looking like being dropped into a role at some point where I can't even say 'I've got someone having a heart attack, you must stop at X where I've arranged an ambulance', or 'there's a fight on board, I've asked for police at Y' without the risk of them saying no?

It's not a future I particularly look forward to.

 

[Solent&Wessex]

Is this definitely the case ? - so, the Arriva/DfT arrangement is (for DOO purposes) basically the same as that for Southern ?

Yes.

Schedules 8.3 and 10.4.1.f of the Northern 2016 Franchise Agreement make it quite clear.

 

[northwichcat]

There is a rare clause in their franchise which says that the DfT will cover for costs and losses incurred via industrial action.

Yes.

Schedules 8.3 and 10.4.1.f of the Northern 2016 Franchise Agreement make it quite clear.

What 10.4.1 says is industrial action is a 'Force Majeure Event' like extreme weather and Arriva won't be subject to penalties for the failure to provide all the services they are required to as part of the franchise agreement.

8.3 says

The Secretary of State, in his discretion, may at any time decide to reimburse or ameliorate net losses of the Franchisee arising from Industrial Action (however caused and of whatever nature) in circumstances where the Franchisee has demonstrated to the satisfaction of the Secretary of State that it has taken all reasonable steps to avoid the Industrial Action and that, Industrial Action having nevertheless occurred, the Franchisee has taken all reasonable steps to mitigate its effects.

So it's not a 'DfT will cover' it's 'DfT may decide to cover if they decide the unions are being unreasonable.'

 

[Carlisle]

Arriva Trains could potentially take a similar approach and seek to operate DCO services solely with new staff, recruited to new roles created specifically for DCO services, without any changes to the terms and conditions or continued employment of existing drivers and guards. Such an approach would probably mean that after DCO were implemented the company would have an excess of current drivers and guards until natural wastage brought the numbers down to the required levels. However, if hypothetically, Arriva Trains were to take such an approach, would existing drivers or guards be able to strike legally, given that this approach would mean that DCO would not directly impact them?

I expect ASLEF could just issue a ballot paper similar to the Southern one just saying something like "do you wish to strike" and as we can all see that's clearly legal

 

[Domh245]

So it's not a 'DfT will cover' it's 'DfT may decide to cover if they decide the unions are being unreasonable.'

Or more likely a "DfT will cover because it's a fight that they desperately want to win"

 

[Robertj21a]

Well I don't really see a problem as long as all parties fully understand what has been specified/agreed. With the Southern dispute it always seemed that the RMT took a long time to realise that it wasn't a 'standard' franchise.

 

[Bletchleyite]

Or more likely a "DfT will cover because it's a fight that they desperately want to win"

Probably so. From their point of view "unions won't accept DOO" = "unions being unreasonable".