Driver checked during his break. The lawyer cools down the emotions that erupted in truckers’ online community.
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A video was recently released on social media, recorded by a truck driver. The film shows how border guards check a driver who is in the middle of his break. “Don’t give them your papers, you have a pause, eat! They have no right to come to you,” the person recording the incident shouts to his colleague. However, a lawyer warns that the author of the recording does not necessarily have to be right.
It is not clear what was the reason for the check. The video, available on Facebook and YouTube, shows only a truck, recorded from another truck’s cabin, a Border Guard vehicle, officers and a driver who was eating in the cabin.
There was a discussion between the person recording the video and the officers. The driver argued that ‘pause is sacred’ and the break must not be interrupted, not even by the services.
Is it really so?
What can the Border Guard do?
According to Joanna Arendarska from TSL Lawyers Strachowicz i Wspólnicy, without the knowledge of the reason for the inspection, it is impossible to clearly assess whether there has been an infringement of the law.
“We should remember that the Border Guard has very broad powers and a wide range of competences. And in many cases, the guards can make checks at any time, at any place where they are,” she explains. “Personal inspections can be carried out at any time. And this does not only apply to trucks, but also to passenger cars. In addition, in this case, they could also have carried out checks relating to the legality of employment. As a rule, in such a case the check should be carried out after a place has been agreed with the person being checked, but there are acceptable cases where it may occur in the place where the driver is currently, e.g. in a parking lot.”
That is why it is so important that the Border Guard, at the very beginning, right after identifying themselves, provides the reason for the check.
It all depends on what kind of pause it was
But that is not all. It is also crucial what kind of break the driver was taking.
“During work, the driver is obliged not only to drive the vehicle but also to undertake all activities connected with the performance of professional tasks, e.g. administrative activities. The working time of the driver shall not include an uninterrupted 24-hour break. But we also have something called a rest break. It is taken after each 6 working hours and lasts 30 minutes. And if the number of working hours is 9 hours, it lasts 45 minutes. Such a break may not only be shortened but also serves as a kind of on-call time for the driver. This means that the employee remains ready to work, outside normal working hours, during the break,” explains the lawyer.
“A break during which the driver is on duty should certainly not be a reason for refusing to take part in a check,” adds Joanna Arendarska.
What does the Border Guard think about this?
We also asked the Border Guard to comment on the case.
As we learned from Lieutenant Agnieszka Golias, spokesperson of the Commander-in-Chief of the Border Guard, “if Border Guard officers were carrying out tasks related to counteracting illegal migration, and everything points to this, the basis for their actions was the Act of 12 December 2013 on foreigners. There is no provision ordering officers to withdraw from the control of the legality of a foreigner’s stay on the territory of the Republic of Poland for the reason invoked by the author of the recording, i.e. mandatory break for the driver and the rest period for the driver of the vehicle. The Act provides explicitly that a foreigner who is subject to the control of the legality of their stay on the territory of the Republic of Poland is obliged to present the necessary documents.”
The spokeswoman also reminded that Border Guard officers, apart from the fact that they “have almost all the powers of the Police in the field of road traffic control”, are also entitled to:
- check ID of a traffic participant,
- check the documents required for driving a vehicle,
- check the condition and equipment of a vehicle,
- use control and measuring instruments to test the vehicle, determine its speed or check the records of the on-board equipment registering speed, driving and stopping times, mandatory breaks and rest periods,
check documents and the conditions laid down therein. As the spokesperson pointed out, “part from checking transport documents, licences and permits in international road transport, Border Guard officers may also carry out checks on drivers’ working time”.
Photo: Youtube Screenshot