Part 2: Current arrangements and new proposals
2.1 Scottish Ministers propose to make certain changes to the regime currently in place as set out in Scottish Statutory Instrument SSI 1992 No 1675, The Road Works (Qualifications of Supervisors and Operatives) (Scotland) Regulations 1992 (the 1992 Regulations).
2.2 The proposed changes we wish to consult on appear below and collectively form the basis of the consultation questions in Annex B.
Proposed changes in detail
|Proposed change 1 – change the order in which the sections on supervisors and operatives appear in the regulations  
|a) Place operatives before supervisors in the title of the Road Works (Qualifications of Operatives and Supervisors)(Scotland) Regulations 2016; and
b) within the body of the regulations and associated schedules.
2.3 The first of the proposed changes is a matter of logical sequencing. Within the current regulations the section on “Supervisors” comes before the section on “Operatives”. In terms of a hierarchy of qualifications where the expected order of attainment might be to begin as an operative and later on become a supervisor, the current order seems counterintuitive. We propose to change this order for the new regulations to reflect what we believe to be a more logical approach.
|Proposed change 2 – changing the way Approved Bodies are defined 
|We propose to make it clearer how other organisations can be recognised by the Scottish Ministers and be added to the list of approved bodies within Scotland.
2.4 We propose to prescribe the circumstances under which other organisations can be recognised as a body approved by the Scottish Ministers for issuing relevant road works qualifications.
2.5 We will consult, on receipt of an application, with relevant bodies within the sector to help the Scottish Ministers to reach a decision. These bodies may include the Roads Authorities and Utilities Committee (Scotland) (RAUC(S)), the Scottish Qualifications Authority (Accreditation) (SQA (Accreditation)), the Scottish Road Works Commissioner (SRWC) and the Highway Authorities and Utilities Committee (UK) (HAUC(UK)).
|Proposed change 3 – simplify the process of registering qualifications 
|The proposed regulations will seek to simplify the process by providing for electronic communication of examination results and qualifications held.
2.6 The 1992 regulations envisage a process where the candidate is assessed as competent by an Approved Assessment Centre, which then verifies this with the Approved Register (presently the Street Works Qualification Register (SWQR), which is managed by the SQA). The candidate is then sent their certificate by the Awarding Body. Through a separate administrative process the SWQR registers their qualifications to facilitate the production of Street Works cards
2.7 The proposed regulations will allow for the electronic communication of candidate results, and remove the need for awarding bodies to be the one applying to register the qualification in the approved register.
Figure 1: Current registration process
2.8 Currently, awarding bodies are required under the 1992 regulations to issue certificates to trained operatives and supervisors. In practice the certificates are often issued to assessment centres or employers, who then pass them on to the candidates. What is most important is that the information is passed onto the approved register which in most cases takes place electronically, usually directly from the approved assessment centre. Removing the statutory requirement for awarding bodies to produce certificates and issue these to the candidates will bring the regulations into line with current digital communications and may help streamline the process and perhaps reduce associated costs.
Figure 2: Registration process
|Proposed change 4 – changing the key date from the date a qualification is registered to the date when the relevant qualification is achieved. 
|The current 5 year period when qualifications are valid is calculated from the date the qualification is registered. This approach is inconsistent with the introduction of reassessment which needs to be more closely linked to when the candidate was assessed as competent. The proposed regulations will therefore seek to use the date on which an awarding body certifies the candidate as being competent as the key date for the calculation of subsequent time periods.
2.9 The proposed regulations, with the introduction of reassessment at their core, are designed to improve confidence in the competence of those conducting and supervising road works in Scotland. Introducing a system where competence is reassessed every 5 years means that it is important to link relevant periods more closely to the date when a candidate was assessed as competent. In order to achieve this the proposed regulations will seek to use the date on which an awarding body certifies the candidate as competent as being the key date. The benefit of using the date a candidate is assessed as competent rather than say, the date of the examination, is that we understand that awarding bodies may not need to change their various business systems to accommodate the proposed change.
|Proposed change 5 – so called “grace periods”  
|The 1992 regulations have been interpreted as providing for two separate so called ‘grace periods’: However only one of these interpretations has any basis in fact.
(a) The 1992 regulations did allow a candidate who has passed their exams to work as someone trained while they wait for their qualification to be registered (for up to 2 months). In the proposed regulations, we will continue to provide a 2 month derogation to avoid delays arising from the administrative process in registering qualifications.
(b) There was also the belief that because the regulations allowed an application to re-register a qualification to be made within 3 months after the expiry of the original period of registration, that this allowed someone to continue to work in a trained position within that 3 month period. This is not in accordance with the 1992 Regulations. Therefore, under the proposed regulations, the registration of any qualification will have an expiry date linked to the date of certification. Once this date of expiration has been reached and if no fresh application to register a qualification has been received, then candidates will not be able to fulfil the statutory role of being a trained operative or supervisor.
2.10 While we have no reason to believe that the registration of qualifications will not be an efficient process, it seems prudent to continue to provide a short period of exemption where someone has passed the relevant exams but has not yet received confirmation that their qualification has been registered. This period will run for no more than 2 months from the date the relevant qualification is confirmed.
2.11 The 1992 regulations allowed applications for re-registration of qualifications to be received up to 3 months after the expiry of the previous 5 year registration period. In practice, this had been incorrectly interpreted as providing cover for a candidate to continue to fulfil the role of either a trained operative or trained supervisor during that period. That view was not correct. The proposed regulations will provide for registration periods that run for 5 years from the date a relevant qualification is confirmed. To ensure that there is no gap in the period of time that a qualification is registered, relevant applications to re-register qualifications must be received before the expiry date of the previous 5 year period. Applications may be made after the expiry period, but that will result in a gap during which the candidate will not have a registered qualification and will therefore be unable to fulfil the statutory role of being a trained operative or supervisor on road works.
|Proposed change 6 – amend the qualification requirements for trained operatives and supervisors within the new regulations to include provision for reassessment
|Regulations 3 and 4 of the 1992 regulations set out the prescribed qualifications for trained operatives and supervisors as individuals. This is thought not to be sufficiently robust. When introducing reassessment we need to distinguish between initial training with assessment, and reassessment.
2.12 In introducing reassessment for the first time in Scotland we feel that it is important to differentiate between the process of initial training with assessment, and the process of reassessment, which are generally treated differently in relation to road works and some other vocational training subjects. We propose to treat assessment to mean the process by which an operative or supervisor undergoes a practical and theoretical assessment which demonstrates that they have attained the required level of knowledge and understanding, whereas reassessment need only, we believe, test the relevant theory.
|Proposed change 7 – introduction of reassessment of competencies every 5 years 
|The 1992 regulations provide that a qualification could be re-registered for a further period of 5 years provided that an application is received no later than 3 months after the expiry of the previous registration. The proposed regulations will require that an application to re-register a qualification is supported with confirmation that the applicant has passed an appropriate reassessment examination in the relevant qualification.
2.13 The introduction of reassessment is aimed at providing greater assurance that trained operatives and supervisors are fully competent on the latest statutory requirements, codes of practice etc.
2.14 How will reassessment and re-registration work in practice? - Flexibility will be provided to help candidates and their employers better plan when to take reassessment examinations. When applying to re-register a qualification within 12 months of the expiry of the current registration of their qualification, the expiry of the resultant 5 year registration period will be a full 5 years from the expiry date of their previous registration. This is similar in concept to vehicle MOT certificates where owners can submit their vehicle for a test anytime in the month before their current MOT certificate expires and get a new MOT which runs for a full 12 months from the expiry of the original MOT certificate.
2.15 It is possible that employers, or individual candidates will want to try to arrange for all of their qualifications to expire around the same time. This would have the benefit that the time spent off job taking reassessment examinations can be concentrated into a shorter period. To facilitate this, using the same principles described above, we will provide for applications to re-register qualifications to be submitted within the first 4 years of a registration period. In such circumstances the subsequent registration period will run for a period of 5 years from the next anniversary of the original registration period coming after the date of qualification certification supporting the application.
2.16 When you register a qualification the period of registration will run for 5 years from the date your qualification was certified. The anniversary of that original certification creates virtual milestones throughout the registration period. We will use the next anniversary after any early reassessment to calculate the next 5 year expiry period. In other words:
Time period = (Anniversary date – certified reassessment date) + 5 years.
See the examples below:-
Examples background – Utility operatives Brian Candidate, and William Operative pass exams for their Signing, Lighting and Guarding qualification for the first time. The associated qualification certificate (or other evidence of the qualification) is dated 16 July 2016 by the awarding body. The registration of these qualifications will therefore expire on 15 July 2021 (see Figure 3 below). However Brian and William plan to take different approaches to reassessment.
Figure 3: Early reassessment based on example
Brian’s approach – Brian plans to take his reassessment exams in the final year of his qualifications’ current registration. He makes arrangements to attend an assessment centre on 1 December 2020 (in the 5th year). Assuming he passes and the awarding body certifies his renewed qualification on 15 December 2020, then when re-registered for a further five years, the renewed registration will expire 5 years from the expiry date of the original registration e.g. on 15 July 2026 as he applied within 12 months of his original expiry date.
William’s approach – In 2017 William adds a further road works qualification to his achievements. William’s employer decides it will be helpful to try and bring all of the qualifications into some form of alignment by making the registrations expire in the same year. So on 1 May 2017 William attends an assessment centre to be reassessed in his SLG qualification. He passes and the awarding body certifies this result on 16 May 2017.
When registered, the 5 year period for William’s SLG qualification will now end on 15 July 2022 (the same year as his other qualification). William and his employer can now plan on concentrating his necessary reassessments within a short period, or on the same day if possible, minimising the work down time.
What William actually did – It started off much as before. In 2017 William adds a further road works qualification to his achievements. William’s employer decides it will be helpful to try and bring all of the qualifications into some form of alignment by making the registrations expire in the same year. So on 1 May 2017 William attends an assessment centre to be reassessed in his SLG qualification. He passes and the awarding body certifies this result on 16 May 2017. However, William is a bit absent minded, and he forgets to apply to the approved registration body to re-register his qualification. He eventually gets round to it on 1 September 2018 after a final warning from his employer. When registered, the 5 year period for Williams SLG qualification still ends on 15 July 2022 (i.e. the date it should have expired had he applied to re-register the qualification shortly after his reassessment. William gains no advantage through his absent minded delay.
2.17 We believe that once the registration of a qualification has passed, only a finite period should be allowed as a gap if the candidate wants to apply subsequently to re-register that qualification on the basis that he has passed only a reassessment examination rather than taken the qualification again in the same way a new candidate would have to do. We believe that setting an upper limit of a gap of no more than 5 years is appropriate. This proposal strikes a balance between providing candidates and their employers with flexibility, and at the same time providing a safeguard to ensure that high standards of competence are maintained within road workers and their supervisors.
|Proposed change 8 – revised qualification structure 
|The 1992 regulations prescribe qualifications for operatives and supervisors that are made up of separately defined units of competence. The proposed regulations seek to revise this structure, making Location and avoidance of underground apparatus, and Signing, Lighting and Guarding mandatory qualifications in their own right and not to have expired for any other qualification to be deemed valid.
2.18 Under the 1992 regulations, with the exception of the stand-alone arrangements for Signing, Lighting and Guarding (for operatives whose actions only involve opening the road e.g. meter reading, lifting inspection covers, etc.), each qualification comprises at least three units, two of which - Location and avoidance of underground apparatus (LA), and Signing, Lighting and Guarding (SLG) - are common to all.
2.19 This ensures that for all works that involve breaking up the road, the operative is trained in LA and SLG. However, the prescribed combinations mean that there is some duplication of units among the qualifications, which can cause confusion over which units to re-register when renewing qualifications. The composition of units can also be confusing to roads authority inspectors.
2.20 The proposed regulations aim to make it easier for practitioners to comply with the guiding principles of the regulations whilst ensuring that appropriate standards of training are maintained. The intention is to make the qualifications structure clearer and more logical. The expected outcomes are that practitioners will better understand what is expected of them, and road works operatives and supervisors will be more likely to be appropriately trained for the activities they are engaged in.
2.21 Under the proposed regulations, LA and SLG would become qualifications in their own right and a mandatory requirement for any other qualification to be valid. Should either LA or SLG expire, the other qualifications would all become temporarily invalid until the expired key qualification was renewed. We consider that this approach puts two key principles at the heart of road work qualifications, the safety of road workers, users and pedestrians, and the protection of plant.
2.22 Currently, an operative whose actions only involve opening the road such as meter reading, lifting inspection covers, etc. needs no qualification other than SLG. This would remain the case under the proposed amendments.
2.23 The proposed amendments would also make it easier for local authority inspectors to verify that people with the correct skills are on site, as the mandatory units will be recorded separately on the Street Works Card produced by the approved register.
2.24 The proposed regulations require no changes to the content of training units and therefore we do not anticipate that significant changes to training will be required. The new qualifications would be fully compatible with existing units of competence. During the transition, operatives and supervisors should be able to seamlessly transfer to the new qualifications as their old ones expire. This compatibility would also mean there is a clear correlation between the proposed qualifications in Scotland and elsewhere in the UK.
|Proposed change 9 – cross-border recognition of road works qualifications
|There is a need to recognise road work qualifications registered:
a) elsewhere in the UK ( in England, Wales and Northern Ireland); and
b) elsewhere in the European Union.
2.25 The proposed regulations, along with regimes in the other parts of the UK are underpinned by sector involvement in the development and maintenance of training course materials. This helps ensure that all road works operatives and supervisors hold equivalent qualifications regardless of where within the UK they undertake their road works training or qualifications.
2.26 This common regime will allow Roads Authority inspectors to recognise qualifications as being equivalent.
2.27 Operatives and supervisors from other parts of the UK who have held their qualifications for more than 5 years and not undergone reassessment shall only have those qualifications recognised provided they have undergone reassessment prior to undertaking road works within Scotland.
2.28 The proposed instrument will also provide for recognition of equivalent EU qualifications, as well as cross-border provisions within the UK, and continued recognition of current Scottish and other UK qualifications while these transition to new arrangements. Individuals from the EU wishing to operate as a trained road works operative or supervisor must show that they have evidence of equivalent qualifications attained in their own country, or that they have completed an adaptation period and a successful assessment (see regulation 29(1)a and 32(1), of the European Union (Recognition of Professional Qualifications) Regulations 2015.
|Proposed Change 10– Scottish Fire and Rescue Service exemption
|Introduce an explicit exemption from the regulations for Scottish Fire and Rescue Service when checking fire hydrants only.
2.29 There is some confusion over the applicability (and the appropriateness) of these regulations with regard to the Scottish Fire and Rescue Service when they are carrying out fire hydrant checks in the road.
2.30 The 1992 regulations could be interpreted as to require that Scottish Fire and Rescue Service staff performing hydrant checks would need a relevant SLG qualification. To remove any doubt, it is proposed to explicitly exempt the Scottish Fire and Rescue Service from having to comply with the regulations when checking fire hydrants, however it should be noted that those carrying out repairs to faulty fire hydrants must comply with the regulations.
|Supplementary questions – Possible future extension of some qualification requirements to roads authorities and a new module on communication with members of the public
The proposed regulations seek to make those qualifications that relate to safety and plant protection mandatory. Although NOT part of these regulations, we would like to take this opportunity to take soundings on whether it would also make sense to extend these mandatory qualifications in the same way to Roads Authority operatives and supervisors, in a scenario where the Safety at Street Works and Road Works code of practice (the so called “red book”) is made applicable to Roads Authority road workers.
In the same way, we would also be interested in hearing views on whether the curriculum for Signing Lighting and Guarding should be adapted to include an element or module on how best to engage and communicate with members of the public with whom they come into contact with during the undertaking of road works.