Commission proposes Directives to end exclusion of sectors from working time Directive

In November 1998, the European Commission adopted a Communication outlining an extensive package of proposals for Council Directives to cover workers in sectors currently excluded from the provisions of the 1993 working time Directive, following consultation with the social partners at sectoral and intersectoral level. The proposals pursue a flexible, differentiated approach, enabling the Commission to accommodate existing European-level sectoral agreements in the maritime and rail transport sectors. The proposal also takes into account the points of convergence in the failed negotiations in the road transport sector.

The EU Directive on certain aspects of the organisation of working time (93/104/EC) was adopted by the Council of Ministers on 23 November 1993. The aim of the Directive was to ensure that workers are protected against the adverse effects for their health and safety caused by working excessively long hours and having inadequate rest or disruptive working patterns. The Directive provides in particular for:

• a minimum daily rest period of 11 consecutive hours per 24-hour period;

• a rest break where the working day is longer than six hours;

• a minimum uninterrupted rest period of one day a week (consecutive with an 11-hour daily rest period);

• a maximum working week of 48 hours on average (over a reference period), including overtime;

• four weeks' annual paid holiday; and

• a stipulation that night workers must not work more than eight hours in 24 on average.

However, due to a number of operational difficulties, the road, rail, sea, air and inland waterways transport sectors, as well as sea fishing, other work at sea and doctors in training were excluded from the provisions of the Directive - a total of around 5.6 million workers.

Thus, the issue of amending the working time Directive to include these workers has long featured as a prominent concern of the members of the Commission responsible for both employment and social affairs,Pádraig Flynn, and transport, Neil Kinnock. The issue has also dominated the agendas of the various sectoral social dialogue forums in the transport sector since 1997 (EU9808122F).

The Commission has been pressing for discussions on working time in the excluded sectors ever since the Directive's initial adoption in 1993, and has been active in promoting the social dialogue on this issue with the launch in July 1997 of the White Paper on sectors and activities excluded from the working time Directive (EU9707138N), which discussed the range of approaches available to achieve the inclusion of the excluded sectors. This was followed by a second stage of consultations with the social partners in March 1998, following their responses to the White Paper (EU9804102N). Subsequent to these consultations, in November 1998, the Commission proposed a Communication (COM(98)662 final) setting out a package of proposals, taking a differentiated approach to extending the provisions of the 1993 Directive.

The proposed new Directives

The legislative measures proposed by the Commission involve a mix of general and sector-specific provisions and seek to reflect the differing conditions and constraints facing the various sectors in relation to the issue of working time, as well as the mixed success of the various sectoral social dialogue processes. The Communication includes proposals for Council Directives:

• amending Directive 93/104/EC on working time to cover sectors and activities excluded from the Directive;

• concerning the organisation of working time for mobile workers performing road transport activities and for self-employed drivers;

• concerning the agreement on the organisation of working of seafarers concluded by the European Community Shipowners' Association (ECSA) and theFederation of Transport Workers' Unions in the European Union (FST); and

• concerning the enforcement of seafarers' hours of work on board ships using Community ports.

The package also includes a Recommendation on the ratification of International Labour Organisation (ILO) [Convention No. 180 concerning seafarers' hours of work and the manning of ships](http://ilolex.ilo.ch:1567/public/50normes/ilolex/pdconv.pl?host=status01&textbase=iloeng&document=183&chapter=1&query=(C180) and ratification of the 1996 [Protocol](http://ilolex.ilo.ch:1567/public/50normes/ilolex/pdconv.pl?host=status01&textbase=iloeng&document=184&chapter=1&query=(#classification=13_07*) @) to [Convention No. 147 on merchant shipping (minimum standards)](http://ilolex.ilo.ch:1567/public/50normes/ilolex/pdconv.pl?host=status01&textbase=iloeng&document=148&chapter=1&query=(C147), dating from 1976.

Amendment of working time Directive

It is proposed that the working time Directive should be amended to cover all non-mobile workers, including doctors in training, and to apply general provisions - such as adequate rest breaks, a maximum working week, four weeks' paid annual leave and health and safety checks - to all mobile workers (eg road, air, inland waterways and sea fishing), including offshore workers. The Directive will also apply to all mobile railway workers, as agreed by the social partners in the sector in September 1996 (EU9808122F). The amended Directive, like its predecessor, is to be based on Article 118A of the EC Treaty.

Proposed Directive for mobile workers in road transport sector and self-employed drivers

The Communication includes a proposal for a Council Directive on the working time of all mobile workers in the road transport sector and for self-employed drivers. The Commission is introducing a compromise proposal in this area, following the failure of negotiations between FST and the International Road Transport Union (IRU) in September 1998 (EU9809127F). The proposal seeks to build on the main points of agreement achieved in the social dialogue. However, it has broadened the coverage, as it would cover all categories of haulage including self-employed drivers. The proposal for this sector uses a definition of working time which includes activities such as the loading and unloading of cargo, the supervision of passengers, work associated with the cleaning, maintenance and security inspection of vehicles, as well as stand-by time.

The proposal for the sector specifies a 48-hour maximum average working week over a four-month reference period, with a specified maximum weekly working time of 60 hours. A requirement for a break of at least 30 minutes to be scheduled after six hours' work and at least 45 minutes after nine hours is also included. The proposal provides for a daily rest of at least 11 hours, which may be reduced to 10 if compensatory rest of at least 12 hours is provided within the next four weeks. In relation to night work, eight hours per day are permitted, which is can be extended up to 10 hours as long as an average of eight hours is not exceeded over a two-month reference period.

It is proposed that derogations from the maximum average working week, rest periods and night work may be made by national rules or through collective agreements between the two sides of industry, but only if the workers are provided with equivalent periods of compensatory rest. The reference period over which weekly working time may not average out at more than 48 hours may not exceed six months. This is more restrictive than the period of one year set out in the working time Directive. However, the road transport reference period may be extended to one year, if average weekly working time can be reduced to 35 hours a week. This is foreseen as being appropriate in the public transport sector in France.

The Commission appears to have come to a compromise solution in relation to derogations. By allowing derogations to exist, the Commission has taken account of the demands of the employers. However, at the same time compensatory measures are required to strike a balance, and provision is also made for a shorter reference period.

Proposals for the maritime sector

The social partners in the maritime sector, ECSA and FST, reached an agreement on maximum working hours and minimum rest periods on 30 September 1998 (following on from an earlier draft accord - EU9802182F), and have since requested that the Commission give it legal effect by introducing a proposal for a Directive through the provisions of the social policy Protocol and Agreement annexed to the Maastricht Treaty on European Union. This request was embraced by the Commission as part of the package of proposals amending the exclusions from the working time Directive. The agreement provides for either: a maximum number of working hours of 14 hours in any 24-hour period, and 72 hours in any seven-day period; or a minimum number of hours of rest of 10 hours in any 24-hour period, and 77 hours in any seven-day period.

The Directive is to be introduced on the basis of Article 4(2) of the Agreement on social policy, which provides that "agreements concluded at Community level shall be implemented, in matters covered by Article 2, at the joint request of the signatory parties, by a Council decision on a proposal from the Commission." If adopted by the Council, this would become the first Directive based on an agreement reached by the social partners at the sectoral level to be adopted under the Maastricht social policy Agreement.

In connection with the Directive, the Commission proposals include a Recommendation on the ratification of ILO Convention No. 180 on the working time of seafarers, and the Protocol to ILO Convention No. 147 on minimum standards for maritime shipping.

The Commission is also currently preparing a proposal for a Directive which will include provisions on rest periods and limits on navigation time in respect of inland waterways, as well as a proposal for a specific Directive on the working time and rest periods to apply in sea fishing.

Envisaged impact of the proposals

Announcing the proposals, Commissioner Flynn said that "this is an important day for the millions of workers who were excluded from the original Directive. It also shows that the Commission and the social partners are capable of working together to set standards which meet our health and safety objectives, while maintaining the necessary operational flexibility to make these regulations effective." Commissioner Kinnock also welcomed the proposals, saying that "the whole purpose of a European transport policy is to ensure safe, competitive, responsible transport systems and these proposals are an important element in safeguarding the health and safety of workers in road haulage, rail and shipping, travelers and the general public.".

The impetus driving the Commission and the transport social partners to reach agreements on working time appears to be based upon three important issues:

• the concern to equalise protection for workers in excluded sectors with that for workers in other industries;

• the need to improve health and safety conditions for workers, with the aim of reducing the number of fatigue-related accidents. Research has indicated that 45,000 people are killed every year on the roads of the EU, with 18% of deaths involving either trucks or coaches. It is anticipated that these proposals will reduce the number of accidents, as the health and safety of road users is improved; and

• the expectation that the establishment of common rules for working time across Europe will eliminate conditions of unfair competition. This is a particular concern of the road haulage sector, as differing national rules on working time are seen to distort competition - particularly important given that road transport is dominated by small and medium-sized companies (78% of road transport companies operate five or fewer vehicles). It is also anticipated that a common set of rules governing working time will prevent the disruption caused by industrial action, particularly by road hauliers.

Commentary

The desire to reach an agreement on the inclusion of the excluded sectors under the working time Directive has long been high on the Commission's agenda. The Commission's preference was initially for the social partners to reach sector-specific agreements, which could then be translated into legislation through the Maastricht social policy Agreement. However, despite the successful conclusion of working time agreements at sectoral level in the maritime and rail transport sectors, progress in a number of other sectors, including the sensitive road transport industry, proved more difficult. The Commission therefore resolved to launch a Communication containing a set of proposed Council Directives, which are flexible enough to accommodate a differentiated approach, in order to make some headway in improving health and safety and working conditions in sectors where fatigue-related risk factors are high. The current proposal for the road transport sector seeks to build a compromise solution. While allowing for derogations at Member State level (which were resisted by trade unions), the Commission has sought to offer a higher standard of protection. It remains to be seen how extensively such derogations would be used at national level.

Discussion of the proposals will now commence in the Council of Labour and Social Affairs Ministers, the European Parliament, the Economic and Social Committee and the Committee of the Regions. (Tina Weber and Peter Foster, ECOTEC Research & Consulting).