Mixed views on the law regulating working hours in the road transport sector

The Chamber of Deputies has just passed a law transposing the 2002 Road Transport Directive into national legislation. The decision, coming two and a half years after the deadline for transposition, has been received with relief by the sectoral trade union. Negotiations for the renewal of collective agreements were frozen throughout this period. The differing views and interpretations of the proposed text were closely scrutinised by the Chamber’s Work and Employment Committee.

Differing views on road transport law

On 6 December 2007, the Chamber of Deputies (Chambre des Députés, CHD) endorsed the law transposing the Council Directive 2002/15/EC on the organisation of working time of persons performing mobile road transport activities into Luxembourg legislation. The decision has been welcomed by the trade union representing transport workers, the Association of Luxembourg Drivers (Association des conducteurs d’automobiles du Grand-Duché de Luxembourg, ACAL) which is affiliated to the Luxembourg Confederation of Independent Trade Unions (Onofhängege Gewerkschaftsbond Lëtzebuerg, OGB-L).

The bill, which was especially strongly criticised by the Luxembourg Chamber of Commerce (Chambre de Commerce Luxembourg, CDC), had been met with a great deal of uneasiness from the employer side (LU0707029I). One of the basic criticisms from transport business owners was that the transposition of the directive had not adhered to the principle of transposing ‘the directive and nothing but the directive’. The implementation of this principle has revealed differing viewpoints, since the directive being transposed in this case was one which leaves Member States a certain amount of latitude in a number of important areas.

Two fundamental aspects of the law posed problems. First, the reference period and the definition of what constituted night working were disputed. As far as the working week is concerned, the directive stipulates an average working time of 48 hours which can, however, be increased to 60 hours a week provided that an average of 48 hours a week is not exceeded over a four-month period. The government bill stipulated a working week of 48 hours over a reference period of one month and gave the minister for work and employment the power to grant a four-month reference period on request.

Secondly, another disputed aspect concerned the definition of the night time period. The directive defines night work as all work performed during night time, which is a period lasting at least four hours and which Member States are free to define between midnight and 07.00. The government bill fixed the night time period between midnight and 05.00, and stipulated that mobile workers required to carry out night work during this period could not work for more than 10 hours in a 24-hour period.

Encouragement for collective bargaining

The Work and Employment Committee (Commission du Travail et de l’Emploi) within the Chamber of Deputies emphasised that it did not share the attitude of the professional groups. Employer organisations seemed to believe that because the government based its bill on the lower limit of four hours stipulated by the directive, it had infringed the principle of faithful transposition of the directive. In relation to the employers’ criticisms that there would be a loss of competitiveness due to the reference period being fixed at one month, the Work and Employment Committee pointed out that the authority of the minister of transport to grant exceptions is in a sense a strong incentive for the social partners to reach an agreement on the extension of the normal legal reference period. This aspect of working time is supposed to be subject of collective agreements as part of the bargaining process. The committee argued that if the absence of such an agreement or the systematic lack of progress at this level would lead to competitive disadvantage for the sector, the minister has the power to intervene and grant an extension of the reference period to four months.

Night work versus night worker: a question of interpretation

The Chamber of Commerce also stressed that the daily limit of 10 hours of work would also apply if work started at 04.59 or if it finished at 00.01. The employer organisation felt that the effects on business competitiveness would be considerable, since neighbouring countries have allowed for greater scope in the distribution of the daily working time before the limit of 10 working hours applies: in Belgium, mobile workers must have worked more than five hours between 20.00 and 06.00; in France, they must have worked at least three hours between 20.00 and 06.00 and done so at least twice a week; in Germany, they must have worked two hours between 23.00 and 06.00 for at least 48 days a year.

In its report, the Work and Employment Committee noted that this was a problem of interpretation and that there was confusion between the definition of night working and that of a night worker. Neighbouring countries had interpreted the directive in the sense that, in order to be regarded as a night worker, a person must have carried out a minimum of working hours during the night time. In other words, the laws of neighbouring countries firstly define the night time period, which incidentally is more extensive than that contained in Luxembourg’s bill. They then determine a minimum duration of work that must be performed by the night worker during the night time in order for the night work safeguards to apply.

The European Commission has confirmed the correctness of Luxembourg’s interpretation of the provisions on night work. It has also added that the approach taken by neighbouring countries, which are using the different system of the basic Working Time Directive 2003/88/EC to justify their transposition model, is wrong. Council Directive 2003/88/EC should be regarded as the general norm, from which the more specific stipulations of the directive being transposed by the bill can deviate.

Odette Wlodarski, Prevent